As a year of unprecedented challenges draws to a close, the Kentucky Open Government Coalition presents its holiday wish list for the Commonwealth's open records and open meetings laws.

2020 witnessed the fatal police shooting of Breonna Taylor, focusing attention on the efforts of law enforcement agencies to evade accountability; public officials exploitation of the pandemic to obstruct transparency and delay access; further legislative efforts to abridge existing open government rights; a powerful university's use of its resources to impede its student newspaper's quest for a full accounting of the university's handling of sexual harassment complaints; and a new attorney general who began chipping away at well-established legal authority at the expense of the public's right to know.

These events are the backdrop to our wishes for the open records and meetings laws this holiday season.

Along with an end to the pandemic, escalating violence here and around the world, and partisan rancor, we wish for:

1. An end to law enforcement agencies' blind insistence that all records in an open investigative file are exempt from public inspection.

This position is legally indefensible. The Kentucky Supreme Court made this clear in a 2012 opinion, City of Fort Thomas v. Cincinnati Enquirer, declaring that the law enforcement exemption "does not create a blanket exclusion from the Open Records Act's disclosure provisions for all law enforcement records pertinent to a prospective (open) law enforcement action" and overruling a prior opinion's "impl[ied] blanket exemption for law enforcement records" in open investigations.

https://caselaw.findlaw.com/ky-supreme-court/1643297.html

2. An end to legislative "sneak attacks" on Kentucky's open records and open meetings law.

This includes Sen. Damon Thayer's 2018 covert attempt to re-define (and substantially narrow) the definition of the term "public record" in the open records law to exclude "emails, texts, or calls on devices paid for entirely with private funds and which do not involve government email accounts." It also includes Rep. Jason Petrie's surreptitious attempt to expand the number of exceptions to the open records law in 2019.

https://www.nkytribune.com/2018/03/bill-to-exempt-private-electronic-de…

3. A Kentucky Supreme Court opinion in Kernel Press v. University of Kentucky that ends university abuse of the Family Educational Right and Privacy Act to avoid agency accountability under the guise of student privacy.

This case presents an opportunity for the Court to reject the university's overbroad interpretation of a federal law that is intended to protect student privacy — not to insulate universities from public scrutiny. It is also an opportunity to hold all public agencies to their burden of proving that the records they withhold qualify for protection under the privacy exception, preliminary documents exceptions, and attorney client privilege, repudiating once and to put an end to "the indefensible position that records are exempt because [the public agency] says they are and must be believed."

https://www.nkytribune.com/2020/10/amye-bensenhaver-in-uk-vs-kernel-jus…

4. An attorney general who resists the temptation to re-write 45 years of open records and open meetings analysis in decisions of the Office of the Attorney General.

These decisions are grounded in statute and caselaw. The courts have frequently characterized them as "highly persuasive."

They have ensured consistency in interpretation and application of the laws by the public and public agencies.

Deviation without legal justification will result in confusion, uncertainty, and potential chaos.

Examples of the current Attorney General's propensity for deviating from past decisions include redefining "possession" of public records to exclude records that are not in the "physical possession" of the public agency — such as those stored offsite and those on personal email accounts or servers. Past modifications of the OAG's decisions were prompted by changes in the statutes or caselaw and not by the personal preferences of the sitting attorney general.

https://forwardky.com/cameron-has-begun-chipping-away-at-our-open-recor…

5. Legislative restraint.

Hastily drafted amendments to open government laws aimed at undermining existing rights are unwelcomed under any circumstances, but amendments that abridge the public's right to know introduced during the pandemic are especially offensive. Opportunities for "healthy" discussion between bill sponsors and access advocates, as well as the public, are severely impeded.*

* Sadly, this wish will not be fulfilled. On December 11, Rep. John Blanton (R-Salyersville) and Sen. Danny Carroll (R-Paducah) pre-filed bills aimed at creating new exceptions to the open records law and, in Blanton's case, criminalizing dissemination of the protected information and imposing duties on public agencies to redact the information on public databases. Cynics might argue that the sponsors are exploiting the pandemic to force through their personal agendas while opposition is muted.

https://forwardky.com/new-bill-would-obliterate-open-records-laws-creat…

6. Strict public agency compliance with the temporary statutory modifications to the open records and open meetings laws enacted in March 2020.

These laws, codified in SB 150, will expire when the state of emergency is lifted. They extend deadlines for agency response to records requests from three working days to ten days and permit agencies to conduct their meetings by video or audio teleconference. They are not suggestions or aspirational goals, they are duly enacted laws. Kentucky's public agencies have regularly ignored these statutes, indefinitely extending deadlines and failing to afford the public virtual access to their meetings.

https://www.glasgowdailytimes.com/news/froedge-calls-in-person-gepb-mee…

7. An Attorney General who fully embraces his statutory duty to adjudicate open records and open meetings disputes.This includes exercising all powers with which the laws invest him. Most importantly, it includes holding public agencies to their burden of proving that denials of records requests do not violate the law (and not naïvely relying "upon the candor and diligence of the agencies subject to the open records act").

https://www.google.com/amp/s/amp.courier-journal.com/amp/6224382002

https://www.google.com/amp/s/wkuherald.com/news/attorney-general-interv…

8. Public agency implementation of the positive lessons learned during the pandemic about expanded public "participation" through virtual access to public meetings.

Although we oppose permanent codification of any of the temporary modifications under SB 150 that would shift the existing statutory preference away from in-person public meetings, we support the implementation of practices developed during the pandemic (like remote access) that serve to engage more citizens and expand public participation.

9. Defeat of the proposal to adopt a "residency" requirement for use of the open records law.

The experience of the handful of states that have adopted these statutes teaches us that residency requirements impede both nonresident and resident access to public records, can be easily evaded, are inconsistently and ineffectively enforced, and ignore the reality that the value of the states' public records does not end at the state line.

https://m.amnews.com/2020/03/05/residency-restriction-on-open-records-w…

10. A rekindling of the spirit that informed Kentucky's open government laws at their inception.

Kentucky's open government laws were enacted in the wake of political scandals that rocked the American political system and threatened democracy. Because they were believed to signal the end of government secrecy and the beginning of a new era of openness, they were greeted by the public with great enthusiasm.

Kentucky's legislature embodied that spirit in statements of policy that were later codified in the laws.

These policies expressly promote strict public agency compliance. They recognize that the formation of public policy is public business and that free and open examination of public records is in the public interest.

Sadly, over time, enthusiasm for the laws has subsided and support has waned. Many now take them for granted and some are overtly hostile to them.

Our final wish for the coming year is for a rekindling of the spirit that gave birth to the Kentucky open records law and open meetings laws 45 years ago and a renewed commitment to the laws by public officials, the media, and the public they were enacted to serve.

Seasons greetings from the Kentucky Open Government Coalition. Sincere wishes for a happier new year.