As the year draws to a close, and a new decade dawns, we review the top open government stories of 2019.
1. The release of the 2017 actuarial analysis
The biggest story in 2019 was, chronologically, the last. On December 20 Governor Andy Beshear released the actuarial analysis of the former governor's 2017 "Keeping the Promise" pension reform plan, demonstrating the ultimate value of Kentucky's open government laws.
For two-plus years, the former governor â through his surrogate, the state budget director â resisted disclosure of the actuarial analysis to open records requester Ellen Suetholz. His goal? To conceal the truth that "the proposed 2017 reforms would have cost the state more and forced out many more career employees."
On December 24 we wrote, "Governor Beshear did what the law required. It is, of course, ironic that we are obliged to thank him for simply discharging his statutory duties. Nevertheless, we are grateful for his recognition that the public has a right to know the unvarnished truth and to equip itself with the power which knowledge gives."
Release of the actuarial analysis reaffirms why we fight to preserve our right to know.
https://www.facebook.com/419650175248377/posts/583586772188049/?d=n
2. Victories in state court
Kentucky's courts dealt public agencies a series of defeats in opinions vindicating the principles of open government. The courts:
• rejected attempts to expand the preliminary documents exceptions as well as the exception authorizing nondisclosure of records shielded from disclosure by the attorney-client privilege;
• repudiated the Legislative Research Commission's argument that its denial of requests for records of the LRC and the General Assembly is final and not subject to judicial review;
• determined that federal law protecting student education records does not extend protection to records generated by and for universities involving student allegations of staff sexual harassment;
• unsealed records compiled by the Kentucky Attorney General in the Purdue Pharma litigation that had been sealed by the parties as a condition of settlement;
• recognized the public's right to know the identities of the shareholders in Braidy Industries; and
• declared that "the Attorney General's statutory authority to request additional documents for substantiation [in an open records appeal] constitut[es] a compulsory directive" to public agencies.
Several cases remain in the courts.
Some, including cases involving access to university sexual harassment records, and a case involving records relating to surveillance cameras in Lexington's parks, were returned to the lower courts for additional factual findings.
Others also remain in the courts, including cases involving access to Louisville's Amazon incentive package; state police internal affairs investigations; executive and legislative branch sexual harassment records; records of the Kentucky Medical Services Foundation; 466 pages of entirely redacted records involving the former chief information officer, Charles Grindle; a state police uniform citation database ostensibly developed for internal use only and therefore "inaccessible to the public."
Finally, a number of cases remain in the courts in which the sole issue is the imposition of attorneys' fees on public agencies for willful nondisclosure of open records.
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3. Failed legislative attempts to narrow the public's rights under the open records law
2019 also witnessed an unprecedented legislative assault on the public's existing rights under the open records law through the attempted addition (or "clarification") of several exceptions to the law.
Fortunately, opponents defeated these efforts that might have otherwise:
• created a new exception for "information acquired by the Department of Revenue in tax administration" consisting of final rulings in tax administration cases which the Supreme Court had recently declared open records;
• created a residency requirement, limiting access to state and local public records to residents of the Commonwealth;
• expanded the exception for confidential or proprietary information to include trade secret, financial information, identity or investment interest of shareholders, present or future business plans, rejected economic development incentives, and "information declared confidential by the Kentucky Economic Development Finance Authority";
• "clarified" that a preliminary record must be incorporated into final action to forfeit protection;
• deprived litigants of the right to use the open records law to access records;
• eliminated judicial review of the Legislative Research Commission's denial of an open records request;
• restricted access to personnel records of certain classes of public employees including police officers;
• assigned personal liability to a records custodian who improperly released "protected information"; and
• required requesters with an "improper purpose" to pay a public agency's attorneys' fees in any resulting lawsuit.
There is good reason to believe that some or all of these bills will re-emerge in the 2020 legislative session.
The League of Cities has advocated for a residency requirement as a purported offset to increased demands resulting from the recognized use of email as a means of transmitting requests. And a bill that would prohibit disclosure of gruesome photos or videos used in court has already been pre-filed.
https://www.kentucky.com/news/politics-government/article226856309.html
https://www.wkms.org/post/state-senator-danny-carroll-says-he-didn-t-wr…
https://www.facebook.com/notes/kentucky-open-government-coalition/legis…
4. Auditor's special examination of retirement systems compliance with transparency laws
On August 27, Auditor Mike Harmon issued a special examination of the Kentucky Employees Retirement System and the Kentucky Teachers Retirement System in which he concluded that the two systems have "abdicated [their] responsibility to abide by the Open Records Act."
Both systems, Harmon concluded, have "fallen drastically short of what is required by the law," 2017 SB 2, requiring posting of investment contracts. He identified "clearly unnecessary redactions," such as contract date and table of contents, in some contracts, and objected to the systems' practice of permitting investment managers to decide what the public should and shouldn't know.
Not surprisingly, the KERS and the KTRS took exception to the special examination, arguing that transparency hurts members and the public by "detrimentally affecting [the systems'] ability to invest."
It is widely believed that the retirement systems will seek a legislative cure in 2020 by continuing to minimize the impact of SB 2.
https://www.courier-journal.com/story/news/politics/2019/08/27/kentucky…
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5. At long last emailed open records requests
On June 27, Kentucky formally recognized the duty of all public agencies to accept open records requests submitted by email. The long overdue change came about as a result of a bill, SB 230, sponsored by Sen. Wil Schroder.
As a result, acceptance of emailed request is now mandatory.
Or is it? Agencies opposed to the change in the law soon argued that the law, poorly drafted by any standard, preserves their right to deny emailed requests. Indeed, they argued, the new law may actually limit requesters' options, authorizing the agency, and not the requester, to determine what mode of transmission the requester must use.
The attorney general has attempted to lay this dispute to rest in two open records decisions recognizing that the clear intent of SB 230 was to require agencies to accept emailed records requests and determining that public agencies "are obligated to respond" to emailed requests and "may no longer continue the former policy of refusing" them.
In an interim committee meeting conducted a few months ago, Sen. Schroder opened the door to revision of the poorly written statute.
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6. Moral victories for the open records law
In at least three instances, public agencies retreated from previously held positions that records in their possession were not accessible to the public.
• Under growing pressure resulting from an unprecedented number of thoroughbred deaths on racecourses, the Kentucky Horse Racing Commission in June released information contained in horse fatality reports that it had previously refused to disclose.
https://www.facebook.com/419650175248377/posts/472281413318586/?d=n
• Following a brief tussle in the Fayette Circuit Court, Historic Courthouse LLC agreed to release financial records relating to its management and oversight of the $32 million renovation -- $22 million in public funds -- of the former Fayette County Courthouse. On December 14, the governing board took additional voluntary steps aimed at increasing transparency.
https://www.facebook.com/419650175248377/posts/578870082659718/?d=n
• In August, The Courier Journal published a series of devastating articles focusing on "Why Kentucky can't stop hurting â and killing — its children." The story was a follow-up to a series published three years ago following a contentious five year legal battle with the Cabinet for Health and Family Services for access to child fatality and near fatality records. In 2016, the courts issued scathing indictments of the Cabinet's "culture of secrecy" and awarded substantial penalties and attorneys' fees to The Courier and other newspapers totally over $1 million. The Courier's Debby Yetter confirmed that she encountered no resistance from the Cabinet to her request for child fatality and near fatality records in 2019.
https://www.facebook.com/419650175248377/posts/493970961149631/?d=n
7. A failed attempt to SLAPP a local critic into silence
In an opinion issued in late 2018 the Spencer Circuit Court rejected the City of Taylorsville's attempt to silence local critic and frequent open records requester Lawrence Trageser by suing Trageser for compensatory and punitive damages. The city alleged that Trageser negligently acquired and published public records.
The lawsuit has properly been characterized as a SLAPP, Strategic Lawsuit Against Public Participation, aimed at intimidating Trageser and draining his financial resources. In dismissing the city's claim the court admonished, "the purpose of the open records act is to provide 'any person' with the opportunity to obtain 'free and open examination of public records,'" and not to provide "an avenue for attack against a person who did not use the open records act to obtain a public record."
Inexplicably, the city appealed the circuit court opinion.
The lawsuit is pending in the Court of Appeals. It may have contributed to Rep. Nima Kulkarni's introduction of an anti-SLAPP bill, BR 901, in the 2020 legislative session. Support for the bill extends across party lines.
https://www.facebook.com/1846598708/posts/10212495006330628/?d=n
8. U.S. Supreme Court opinion reversing years of interpretation of the Freedom of Information Act
In June, the U.S. Supreme Court dealt a substantial setback to federal transparency laws in Food Marketing Institute v. Argus Leader Media.
The Argus Leader relied on a 1974 case that required a showing of "substantial competitive harm" from disclosure of records containing proprietary information.
In affirming Food Marketing Institute's position that commercial or financial information is confidential under FOIA if it is "both customarily and actually treated as private by its owner and provided to the government under an assurance of privacy," the Court overruled the 1974 federal appeals court ruling that had guided interpretation of the federal exemption for decades.
The dissenters noted that"the whole point of FOIA is to give the public access to information it cannot otherwise obtain."
"Given the temptation, common across the private and public sectors, to regard as secret all information that need not be disclosed," the dissent noted, "the majority's reading will deprive the public of information for reasons no better than convenience, skittishness, or bureaucratic inertia."
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9. Creation of the Kentucky Open Government Coalition
In the midst of the 2019 legislative crisis, the citizen-based Kentucky Open Government Coalition was born during Sunshine Week.
Our goal? To preserve, and perhaps one day, extend existing rights under our state's public access laws.
The Coalition has since incorporated as a nonprofit and obtained 501(c)(3) status, established a governing board consisting of representatives of the media, the legal community, and the League of Women Voters, and established an active Facebook presence. We have engaged with the National Freedom of Information Coalition, which has provided tremendous encouragement and support, and participated in public events and educational outreach.
Opportunities for informing the public about Kentucky's open government law, and threats to those laws, regularly present themselves. We hope to expand our efforts in the coming years.
https://www.facebook.com/1846598708/posts/10211372729274403/?d=n
10. A new day â and decade -- rising
As key players in the future of Kentucky's open government laws, Governor Andy Beshear and Attorney General Daniel Cameron have already been tested to a lesser or greater extent.
Since taking office on December 10, Beshear has evidenced a strong commitment to the laws by releasing the actuarial analysis; cancelling an $8.5 million no-bid contract awarded by the Bevin administration to a non-profit entity, Commonwealth Center for Commercialization, in the name of transparency; and directing all executive branch agencies to comply with the new law requiring acceptance of emailed open records requests.
Tougher tests no doubt lie ahead.
Cameron, who took office on December 17, continues to meet statutory deadlines for issuance of open records/meetings decisions. The front page of his website contains a direct link to open records and meetings decisions. But no decisions have been posted on the website -- as they regularly were in the past on the Monday following their release -- since December 6.
If he is committed to open government in both word and deed, Cameron will give deference to the veteran open records/meetings staff in internal disputes concerning the laws, support educational initiatives aimed at enhancing understanding of the laws, and defend the laws against legislative attempts to undermine them.
The future of Kentucky's open government laws turns, at least in part, on Cameron's understanding of his statutorily assigned role in mediating open records and meetings disputes. It is critical that he embrace the well-developed body of law recognizing that "the people, in delegating authority, do not give their public servants the right to decide what is good for the public to know and what is not good for them to know; the people insist on remaining informed so they may retain control over the instruments they have created."
