In response to an adverse open records decision issued by the Kentucky Attorney General last week, and mounting criticism, Kentucky Treasurer Allison Ball issued a statement today in which she voiced support for the open records law and a willingness to produce public records in response to a sufficiently specific, non-“frivolous” request.
https://ag.ky.gov/Resources/orom/2022/22-ORD-182.pdf
Ball’s defense belies an underlying hostility toward the law.
She writes:
“Treasurer Ball is committed to transparency and the importance of the Open Records Act. In her response to the Kentucky Democratic Party's appeal to the Attorney General, Treasurer Ball made it clear she would turn over any official travel documents requested once KDP specified what those requested documents were. Their request was so broadly worded that it appeared to include all travel documents in her entire life. She is confident the intention of the Open Records Act was not to subject her family vacations and personal birthday cards to public review.
“This AG opinion concerns the seventh request of Kentucky Democratic Party staff in the past few months, which can only be described as a series of fishing expeditions. These frivolous requests consume valuable working hours of Treasury staff and waste taxpayer dollars.
“The Kentucky Democratic Party has attempted to invade the Treasurer's personal life before by requesting ‘any and all copies of any communications including texts, emails, or letters sent to or received from’ her husband. The language of this request was as the Kentucky Democratic Party has done before- requesting records without any parameters
limiting it to the Treasurer's official capacity. Therefore, this request for ‘any out-of-state or international travel’ could have encompassed family vacations to Disney World, travel to visit elderly grandparents in New Jersey, or her honeymoon. For her entire seven years in office, Treasurer Ball has always complied with making available applicable Treasury documents for public review and will continue to do so.”
The requester originally asked for “Forms DOA28 and DOA28A.”These are Finance and Administration Cabinet forms for out of state and out of country travel that are (obviously) *not* required for personal travel.
That request was amended to “records of any out of state or international travel” after the Treasurer denied the request for Finance travel forms based on the nonexistence of responsive records.
The Attorney General recognized that the second request “must be viewed in the context of [the] first request. The Appellant’s first request was narrow, and precisely described one type of record related to travel—‘requests’ for out of state travel, such as Forms DOA28 and DOA28A.”
Continuing, the OAG observed, “Considering the context of the two requests, [the] second request for ‘any’ out-of-state travel records did not seek records related to a broad and ill-defined topic.”
We agree with the OAG. The Treasurer’s denial smacks of obfuscation rather than genuine confusion. And, if in fact confused, the Treasurer had the option of contacting the requester for clarification.
It appears, instead, that the Treasurer took umbrage at a series of open records requests submitted by a requester affiliated with the Democratic Party, characterizing the requests as “fishing expeditions,” “frivolous,” a distraction from her staff’s “valuable work,” and “a waste [of] taxpayer dollars.”
The use of loaded language like this suggests that the Treasurer’s commitment to transparency is something less than marrow deep.
Kentucky’s courts have recognized that access to public records “does not turn on the purposes for which the request for information is made or the identity of the person making the request. We think the Legislature clearly intended to grant any member of the public as much right to access to information as the next.”
https://law.justia.com/cases/kentucky/court-of-appeals/1994/93-ca-00185…
The courts have expressed agreement “with the District Court of Rhode Island's astute holding that an open records request should not require the specificity and cunning of a carefully drawn set of discovery requests, so as to outwit narrowing legalistic interpretations by the government.
“A citizen should be able to submit a brief and simple request for the government to make full disclosure or openly assert its reasons for non-disclosure.”
https://caselaw.findlaw.com/ky-supreme-court/1387319.html
Herein lies the rub. If the Treasurer had a plausible basis for denial/“reason for nondisclosure,” she should have “openly asserted” it. Instead she made a specious claim that the request was over-broad, and that fulfilling the request would impose an unreasonable burden.
In spite of the fact that Kentucky’s Court have determined that “a public agency refusing to comply with an open records request on this unreasonable burden basis faces a high proof threshold since the agency must show the existence of the unreasonable burden ‘by clear and convincing evidence,” the Treasurer offered no proof — clear and convincing or otherwise — of an unreasonable burden.
The Kentucky Attorney General called her on it, and now she is forced to take cover in a release that sends a very mixed message about her commitment to transparency and the open records law.
And *that* could be extraordinarily problematic for a person seeking the office of Auditor or Public Accounts.
