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Amye Bensenhaver: Kentucky Open Government Coalition offers a brief look at the 2020 Top stories


As a particularly painful year draws to a close, the Kentucky Open Government Coalition takes a look at the top ten stories of 2020.

1. Student journalists lead the open government charge.

The Kentucky Kernel had its day in the Supreme Court on October 23 and awaits an opinion in The Kernel Press, Inc., d/b/a The Kentucky Kernel v. University of Kentucky. The open records case will determine whether public universities can evade full accountability for their own action — or inaction — by invoking federal student privacy laws. In this case, the laws were used to shield from public disclosure records generated in an investigation into student allegations of sexual harassment leveled against a professor who received a remarkably generous settlement in exchange for his resignation.

Amye Bensenhaver

For its tenacity in this five year battle in the courts, The Kernel received the University of Kentucky Scripps Howard First Amendment Center’s 2020 James Madison Award for outstanding contribution to the First Amendment. The first newspaper to receive the award in its 15 year history, UK Center for Rural Journalism and Community Issues director Al Cross declared the award “a testimony to the power and place of student media, not just on campuses but in society at large.”

Using records obtained through the open records law, student journalists at Louisville’s Manual High School made national headlines when in October they broke the news that Kentucky State Police cadet training materials from 2013 contained references to Adolph Hitler and exhortations aimed at promoting ruthless violence. Subsequent RedEye reporting, and effective use of the open records law, toppled the commissioner of State Police and prompted comprehensive review, reappraisal, and policy change.

2. The pandemic threatens the public’s right to know.

Kentucky moved quickly in early March to address the threat to public health posed by COVID-19. As other states dramatically altered or suspended their public records and meetings laws altogether, Kentucky took a reasoned approach, enacting SB 150 on March 30.

The temporary modifications to open records and meetings laws in Kentucky included an extension of the three working day deadline for agency response to records requests to ten days and provision for video – or, in limited cases, audio only — teleconferenced public meetings. 

The modifications will lapse when the declared state of emergency is lifted.

The state’s official response was swift and measured. State and local agency implementation of these temporary changes was substantially less successful.

3. Public agencies exploit the pandemic to evade accountability under the open records and meetings laws.

 

Within days of the enactment of SB 150, reports of public agency abuse surfaced as agencies unapologetically subordinated the public’s right to know to more “pressing” public business. 

On April 7, KyCIR reported that Louisville Metro denied its request for three weeks of spending records based on the thin claim that “staff necessary to respond to this request are also devoted to assisting in the city’s response to the COVID-19 pandemic; thus, it would be a burden not only to them, but also to the residents of Louisville Metro relying on Metro’s work if they were to respond to this request at this time.”

Public agencies across the state followed suit by engaging in legally indefensible delaying tactics.

Agencies struggled to adapt to the logistical challenges of video or audio teleconferenced meetings. These included disruptions in transmission and harassing interruptions (Zoombombing) intended to disrupt. In some cases, officials exploited impediments to public engagement at face to face meetings to advance non-urgent agendas.

Some agencies elected to ignore the temporary modifications to the open meetings law altogether. The Kentucky General Assembly was a chief offender in this regard. On more than one occasion, its members refused to hold themselves to the requirements they established in SB 150 for all other public officials.

4. Legislative assaults on the public’s right to know continue.

 

In a pattern that has now become familiar, lawmakers began the 2020 legislative session with multiple bills abridging existing rights of public access under the open records law. 

These included proposed restrictions on access to  “gruesome” photographs and videos depicting certain violent acts or scenes (HB 174); public defender litigation files (HB 443); police pursuit policies (HB 298); laws “clarifying” retirement systems’ secrecy relative to investment manager fees (SB 219); and laws placing control of the timing and release of actuarial analyses of pension bills in the presiding officers of the House and Senate or the LRC director (HB 194, House Floor Amendment 1) rather than the retirement systems.

All, mercifully, were unsuccessful.

2020 ended with Rep. John Blanton’s 2021 pre-filed bill aimed at excluding the first and last names of judges, prosecutors, and law enforcement officers — and related personal information — in any and all public records from the open records law, criminalizing dissemination of the information, and requiring the redaction of the information in publicly accessible agency records systems (RS BR 985).

Not an auspicious beginning to the 2021 legislative session.

5. Law enforcement evasion of the open records law is exposed.

The fatal police shooting of Breonna Taylor on March 13 focused attention on law enforcement agencies’ entrenched practice of obstructing access to public records and ignoring black letter law which mandates disclosure under well-defined circumstances. Investigations surrounding her case were shrouded in secrecy, precipitating a number of open records lawsuits between The Courier Journal and Louisville Metro.

Other incidents raised public awareness of the lengths to which law enforcement agencies will go to avoid accountability.

On March 24, WDRB sued Louisville Metro Police Department for its refusal to disclose the names of officers under investigation for misconduct relating to “an alleged alcohol and sex party at the homicide unit” in 2019. In June, WBKO announced that the Kentucky State Police refused to disclose records relating to a Glasgow man, Jeremy Marr, who died in police custody after he was apprehended for allegedly burglarizing a home. In August, The State Journal obtained a favorable ruling from the attorney general in an open records appeal involving access to the initial report in KSP’s investigation of the non-fatal police shooting of a Frankfort resident. KSP did not appeal the ruling but refused the newspaper’s demand for the record until late December. October witnessed Louisville Metro’s delayed release of heavily redacted copies of the disciplinary records relating to the officers involved in the fatal shooting of Breonna Taylor. And on Christmas Eve, The Courier Journal sued LMPD for willfully concealing 750,000 records in the Explorer Scout sex abuse case. Because it involves allegations that officials lied about the existence of responsive records at the time of the original request and subsequently removed the records to avoid full disclosure, this is, perhaps, the most disturbing of all of these incidents.

In November, WDRB aired a scathing report on its three year battle to obtain investigative records relating to four state troopers “caught in illegal steroid operations.”

Within days of the report, KSP hired a former assistant attorney general and open records/meetings staffer to advise on open records matters and improve compliance. She was hired into a nonmerit position subordinate to KSP’s general counsel. With two strikes against her, her prospects for making meaningful change are uncertain.

It is unclear what, if any, steps Louisville Metro has taken to address the problem of pervasive secrecy.

6. Attorney General Daniel Cameron reinvents his role as open records and open meetings mediator.

Although he regularly professes a commitment to transparency, Attorney General Daniel Cameron’s track record to date raises serious doubt.

Cameron, who took office on December 17, 2019, when his predecessor, Andy Beshear, was sworn in as governor, has changed the face of open records and meetings decisions, deviated from forty-plus years of interpretation of the laws without a specific legal basis for doing so, and – perhaps most shockingly – publicly expressed confidence in “the candor and diligence of the agencies subject to the act.” 

Had he made that statement on December 18, 2019, Cameron’s naivete might be excusable, but this statement was made nearly a year later in the context of inquiries concerning LMPD’s misrepresentations about the existence of records responsive to The Courier’s request for the Explorer sex abuse investigation.

Indeed, in a break from past practice The Courier has regularly bypassed administrative review of open records disputes by the Office of the Attorney General and taken its disputes directly to circuit court in the past year.

Cameron’s shrinking full time open records and open meetings staff now consists of one nonmerit and one merit employee. He rarely exercises his authority to conduct confidential inspection of disputed public records or request additional documentation from the agency to substantiate its denial. In fact, he withdrew his predecessor’s motion to intervene to clarify the scope of that authority in pending litigation between universities and student newspapers.

Clearly, Daniel Cameron intends to leave his mark on Kentucky’s open government laws, and that mark is unlikely to redound to the public’s benefit.

7. Governor Beshear settles pending open records litigation he inherited from the previous administration.

Within days of taking office in December 2019, Governor Beshear began releasing public records that the Bevin administration refused to disclose and that had been tied up in litigation.

The most notable of these were the actuarial analysis of Bevin’s 2017 pension reform plan, records identifying shareholders in Braidy Industries, and records involving allegations of sexual harassment against officials in executive branch agencies.

Beshear was the first Kentucky attorney general to ascend directly from that office to the governor’s office since the attorney general was statutorily assigned the role of dispute mediator in open records and meetings disputes. As attorney general, he had determined that the nondisclosure of these records constituted violations of the open records laws. Continued resistance to disclosure in the courts would have defied logic.

Interestingly, the closest precedent for Beshear’s settlement of pending open records litigation upon taking office was that of his predecessor, Matt Bevin. In 2016, Bevin settled an open records dispute involving access to child fatality records maintained by Governor Steve Beshear’s Cabinet for Health and Family Services that had lingered in the courts for years.

8. Citizen advocacy of Kentucky’s open government law continues to play an important role in 2020.

 

In the single most notable case, citizen advocate Lawrence Trageser secured a favorable ruling from the Kentucky Court of Appeals in a dubious lawsuit seeking compensatory and punitive damages that the City of Taylorsville filed against him for publication of records obtained by formal and informal means.

In a published opinion, the court admonished the city for filing the lawsuit, declaring that “the government can use the Open Records Act as a shield; [but] it cannot use it as a sword.” The court affirmed an award of $30,950 in statutory penalties for Trageser and $23,468 in fees for his attorney, Jeremy S. Rogers. A partner in the law firm of Dinsmore & Shohl, Rogers is a widely respected First Amendment advocate and a Kentucky Open Government Coalition co-director.

As a pro se litigant, Trageser also obtained a favorable published opinion from the Court of Appeals in a legal battle with the Kentucky State Police to obtain records relating to police misconduct. 

Although the opinion mostly reaffirmed longstanding interpretation of the preliminary documents exceptions to the open records law, the importance of this reaffirmation in 2020 cannot be overstated since law enforcement agencies regularly ignore the older opinions.

9. HIPAA and FERPA are falsely invoked as a barrier to COVID-19 data access.

While questions have occasionally arisen about the timeliness of, or discrepancies in, Kentucky COVID-19 data, state officials have been applauded for their candor in disclosing de-identified data.

Other states have not been as transparent, impeding the public’s ability to make informed health decisions by refusing to disclose data. Their pretext, generally, has been the Health Insurance Portability and Accountability Act (HIPAA) and the possibility of individual patient identification.

Universities and school districts in other states have also refused requests for de-identified COVID-19 data based on disingenuous interpretations of the Family Educational Rights and Privacy Act (FERPA), and the purported impact on student privacy, as well as HIPAA.

10. Kentucky’s courts continue to resolve open records disputes in favor of the public’s right to know.

 

The courts dealt public agencies a series of defeats by:

• granting the current state budget director’s and Ellen Suetholz’ joint motion to dismiss the former budget director’s appeal from a circuit court ruling in favor of Suetholz in open records litigation involving access to the actuarial analysis of the 2017 pension reform plan and awarding Suetholz’ attorneys $72,833 in fees;

• affirming the public’s right of access to the Kentucky State Police uniform citation database containing an estimated eight million entries and rejecting KSP’s claim that the database is private and cannot be redacted;

• affirming a citizen’s right of access to KSP investigative files involving trooper misconduct, rejecting the agency’s claim that the files were preliminary, and ordering the designation of the previously unpublished opinion to be changed to a published opinion that can be cited and relied upon as legal precedent; and

• issuing a published opinion flatly rejecting a city’s lawsuit seeking compensatory and punitive damages from a citizen for publication of records obtained through the open records law and a source and excoriating the city for its attempt to use the law as “a sword” against the citizen.

2021 will not, we trust, disappoint as the courts examine open records disputes between the Finance Cabinet and former attorneys for Governor Matt Bevin relating to the return of communications concerning pardons removed by the attorneys at the conclusion of Bevin’s administration; between The Courier Journal and Louisville Metro, LMPD, and others relating to the investigative files in the Breonna Taylor case and the Explorer sex abuse case; and between Attorney General Daniel Cameron and American Oversight relating to the attorney general’s refusal to disclose records relating to the Ballot Integrity Task Force.

Concluding where we began, we anxiously await the Kentucky Supreme Court’s ruling in The Kernel Press, Inc. d/b/a as The Kentucky Kernel v. University of Kentucky, a case whose open records implications extend far beyond the dispute from which it arose and whose outcome may presage a new era for open government in Kentucky.

See these links:

https://www.facebook.com/419650175248377/posts/793412611205463/?d=n

https://www.facebook.com/419650175248377/posts/767440590469332/?d=n

https://www.facebook.com/419650175248377/posts/723653008181424/?d=n

https://yubanet.com/usa/watchdog-sues-kentucky-ag-for-records-related-to-ballot-integrity-task-force/

Amye Bensenhaver is a retired assistant attorney general, open government advocate, and blogger for the University of Kentucky Scripps Howard First Amendment Center. Along with Jennifer P. Brown, former editor of the Kentucky New Era and publisher of an online news site in her hometown of Hopkinsville, she recently helped establish the Kentucky Open Government Coalition to provide a voice for all citizens who support government transparency and accountability.


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