Why is this "old" story directly relevant to a "new" story about obstacles to the public's right to inspect records of the General Assembly and the Legislative Research Commission?
The individual pictured below is the former director of the Legislative Research Commission, David Byerman.
In August, 2018, legislative leaders decided that they would not renew Byerman's contract as director of the Commission, "an independent agency in the legislative branch of state government." Byerman, it seems, "was brought in to change the culture of the agency" in 2015.
According to legislative leaders, the decision not to renew his contract in 2018 was prompted by a desire to take the Legislative Research Commission "in a different direction."
Byerman's position remains vacant nearly eight months after the decision was made to end his employment. With no formal search for his replacement underway, his position is currently filled by Senate Chief of Staff Becky Harilson and House Chief of Staff David Floyd. With all due respect, it is impossible to characterize these individuals as "independent" from political influence.
From an open government perspective, this is problematic.
Under a statute enacted in 2003 -- KRS 7.119 -- the LRC director serves as the first line of review for incoming open records requests for records "in the custody of the Legislative Research Commission or the General Assembly."
He or she is, effectively, the records custodian for the legislative branch. His or her independence ideally ensures an objective and nonpartisan analysis of the public's right of access to records of the legislative branch.
When he or she is aligned with the party in power, his or her ability to independently and impartially determine whether a record is protected under law may be compromised.
This is especially troubling because the Legislative Research Commission itself -- the 16 member body made up of majority and minority leadership -- ultimately decides any appeal of a denial issued by the director.
There is no right of appeal to the attorney general. The attorney general's office was expressly and explicitly disqualified from reviewing denials of open records requests to the legislature in 2003. What some view as a check on partisan resolution of records access issues was eliminated and thus, ideally, the potential for a fair decision on the public's right of access to legislative records.
It was neither Ms. Harilson nor Mr. Floyd who, last year, responded to an open records request for records relating to public resources expended in the election challenge involving Democratic Representative Jim Glenn and Republican D.J. Johnson. That request yielded few pertinent records.
The chair of the Nelson County Republican Party, Don Thrasher, recently received a partial denial of his request for records relating to Mr. Floyd and his appointment as Speaker David Osborne's chief of staff and records relating to Daisy Olivo and Bruce Metcalfe and their terminations from the LRC in the wake of the the controversy surrounding former Speaker of the House, Jeff Hoover.
That request was not issued by the interim directors of the LRC but by general counsel for the LRC who advised that his office "reviews and responds to all open records requests on behalf of the Legislative Research Commission director."
KRS 7.119 makes no reference to the LRC general counsel. Nor does it assign any duties in responding to open records requests to him or her.
Lawmakers enacted a law in 2003 governing the way open records request for legislative records would be handled. They placed responsibility for deciding whether legislative records should be disclosed in the hands of the "independent" LRC director. Byerman's forced departure, and lawmakers' apparent reluctance to name his successor, undermines that law.
Lawmakers should, once again, play by their own rules, or we might begin to question the sincerity of their commitment to open government.
