This report in the December 5 Lexington Herald-Leader, "Kentucky man sought public records from police. Instead, the chief arrested him, lawsuit says," raised the hackles of every proponent of the open records law and the public's right to know. We pictured a belligerent chief accosting an innocent open records applicant, cuffing him, and throwing him into lockup for nothing more than exercising his rights under the law.
https://www.kentucky.com/news/local/crime/article296572609.html
We assumed that the resulting lawsuit against the Hazard Police Department -- alleging malicious prosecution, violations of the open records law, battery and false arrest -- was the culmination of years of public agency obstructionism and the war on the public's statutory rights.
But the video tells a different story. There are no absolutes -- no heroes or villains -- only three people -- an increasingly annoyed police chief, a befuddled "records clerk," and a member of the public seeking information about deputies names, badge numbers, and salaries -- discussing a subject none of them entirely understands, and an arrest that is based on a non-open records altercation.
https://www.kentucky.com/video/article296610149.html
As it happens, an open records request for records of a city agency -- including the police department -- should be submitted to the city clerk. Requester Dallas Campbell may not have known this. Police Chief Darren Williams should have.
Because he apparently didn't, Williams missed an opportunity to defuse the situation by accepting the request and advising Campbell that he would forward it to the city clerk, per KRS 83A.085(3)(b), for "[p]erformance of the duties required of the 'official custodian' or 'custodian' in accordance with KRS 61.870 to 61.882." Or he might have advised Williams where the city clerk could be located and directed Campbell to deliver the request to the Clerk's office.
https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=51391
It is apparently the primary responsibility of the hapless records clerk, caught in the crossfire, to provide accident reports to the individuals or groups identified in the statute that governs limited access to them. Accident reports are not "considered open records under KRS 61.870 to 61.884 and shall remain confidential" to all but statutorily identified people or groups. Fees for copies are substantially higher than fees under the open records law and a separate form for submitting a request for an accident report exists by statute and regulation.
https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=54793
A records clerk responsible for providing accident reports under separate statutory enactment is not the equivalent of an official records custodian or open records custodian. Perhaps the clerk should have known, but did not know -- due to inexperience or lack of training -- that the city clerk is the open records custodian for all city agencies, that an optional standardized open records request form has existed since 2021, and that records containing public employee salaries are nonexempt public records that must be released if requested under the open records law.
As chief of the Hazard Police Department, Williams is charged with a working knowledge of the laws governing public access to the records of his office -- certainly knowledge that the city clerk is responsible for open records requests delivered in person, by U. S. Mail, by fax, or by email to any subunit of city government, and that requests should be immediately forwarded to the city clerk.
His response is attributable to irritation rather than inexperience. But his lack of understanding and irritation is, at least in part, driven by ineffective to no balanced, informed, and practical open records training.
Responsibility for understanding the agency's duties under the law is not Campbell's. His knowledge of the law is imperfect but better than the chief's. Oddly, the video suggests he almost welcomes the prospect of arrest.
But let's be clear. Williams did not arrest Campbell for submitting an open records request. The arrest was precipitated by Williams' demand that Campbell cease videotaping inside police headquarters and Campbell's insistence that he was within his rights to do so.
We are assured by legal expert Michael Abate that the chief's position is legally unsupportable, and that Campbell had the right to videotape in the non-secured areas of the building -- here, the reception area. But, again, his arrest did not result from the act of submitting an open records request.
These events nevertheless raise open records issues of vital importance.
• Re-prioritizing open records training
As an assistant attorney general, I trained public officials and employees about open records and open meetings regularly -- including two hour open records presentations at least twice yearly at the Kentucky Department of Criminal Justice Training as part of it's multi-day "New Chiefs of Police Training." Years of open records training at that facility -- two of them post-retirement -- fell victim to Covid. It is unclear if they were restored.
Opportunities for records training, generally, have decreased. Ask a newly elected official what opportunities for balanced, objective, and practical open records training he was afforded, and many will answer, "None." In at least one instance -- this one involving Franklin county officials -- several offers of free open records and meetings training for county officials at the commencement of the new administration were rebuffed.
What little knowledge officials gather "by osmosis" seems to be based on the belief that open government laws serve no useful public purpose, are nothing but a nuisance, and are to be evaded -- even ignored -- at whatever cost.
• Anti-open government arguments for lawmakers and public officials
While our sympathies may lie with Dallas Campbell in this incident, anti-open government lawmakers and public officials will point it as another example of an obstreperous open records requester monopolizing valuable public resources at the expense of the agency's essential functions.
They will call for revisions of the law to reign in the public, ignoring (or ignorant of) the fact that the law already addresses actual instances of pure harassment if the agency can prove "intent to disrupt essential functions" by clear and convincing evidence.
https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=51391
Lawmakers have become experts in flipping the open government script with subliminal messaging that public records and meetings belong to them -- and not the constituents they serve -- and that, frankly, "it's none of the public's business."
These are dangerous times for the public's right to know.
• The 2025 legislative session
The Regular Session of the Kentucky General Assembly commences on January 7. Lawmakers have acknowledged their intention to dismantle vestiges of DEI and to lower taxes, but they have not indicated whether they will continue their assault on our open government laws. This is no guarantee they will not. It is far safer to assume that they will.
We must all be prepared to speak with one voice in opposition to legislative encroachments on the open records and meetings laws and in vigorous defense of the laws in order to "remain informed so we may retain control over the instruments that we have created."
https://casetext.com/case/lexington-herald-leader-v-univ-of-ky
