A nonprofit publication of the Kentucky Center for Public Service Journalism

Amye Bensenhaver: Here’s the brief version of the top ten open government stories of 2019

And now, the Reader’s Digest version of the top ten 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. The analysis revealed that “the proposed 2017 reforms would have cost the state more and forced out many more career employees.

2. Victories in state court

Kentucky’s courts dealt public agencies a series of defeats in opinions by:

• rejecting attempts to expand the preliminary documents and attorney-client exceptions;
• repudiating the Legislative Research Commission’s attempt to evade judicial review of its records’ denials;
• determining that federal law does not protect to records involving student allegations of staff sexual harassment;
• unsealing records in the Purdue Pharma litigation; and
• affirming the public’s right to know the identities of the shareholders in Braidy Industries;

Several cases remain in the courts.

3. Failed legislative attempts to narrow the public’s rights under the open records law

A failed legislative assault on the open records law in 2019 would have:

• created a new exception for “information acquired by the Department of Revenue in tax administration” consisting of final rulings in tax administration cases;
• created a residency requirement for use of the law;
• vastly expanded the exception for confidential or proprietary information;
• expanded the scope of the preliminary documents exceptions;
• eliminated judicial review of the Legislative Research Commission’s open records denials;
• restricted access to personnel records of certain public employees;
• 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 be back in 2020.


4. Auditor’s special examination of retirement systems compliance with transparency laws

On August 27, Auditor Mike Harmon’s special examination concluded that the retirement systems have “abdicated [their] responsibility to abide by the Open Records Act” and “fallen drastically short of what is required by“ 2017 SB 2, requiring posting of investment contracts.
KERS and KTRS objected, arguing that transparency hurts their members and the public by “detrimentally affecting [the systems’] ability to invest.”

Look for legislative attempts to limit systems transparency in 2020.


5. Emailed open records requests

On June 27, a new law took effect that requires all public agencies to accept open records requests submitted by email. The long-overdue change, sponsored by Sen. Wil Schroder, seemed simple enough.

But powerful opponents argued that the poorly drafted law preserves their right to deny emailed requests and actually limits requesters’ options.

The attorney general has determined that public agencies are now “obligated to respond” to emailed requests and “may no longer continue the former policy of refusing” them.

Schroder may attempt to clarify the new law in 2020.



6. Moral victories for the open records law

In at least three instances, public agencies retreated from previously held positions that records were not accessible to the public.

• Yielding to pressure, the Kentucky Horse Racing Commission in June released information contained in horse fatality reports that it had previously refused to disclose.


• After a brief legal scuffle with the Lexington Herald-Leader, 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. In December, it took additional steps aimed at increasing transparency.


• In August, The Courier Journal published a series of devastating articles focusing on “Why Kentucky can’t stop hurting – and killing — its children” as a follow-up to an earlier series published after a contentious five year legal battle with the Cabinet for Health and Family Services for access to child fatality and near fatality records. Courier reporter Debby Yetter confirmed that she encountered no resistance from the Cabinet to her request for child fatality and near fatality records in 2019.


7. A failed attempt to SLAPP a local critic

The City of Taylorsville’s appealed a circuit court opinion that it improperly attempted to silence local critic and frequent open records requester Lawrence Trageser by suing Trageser for compensatory and punitive damages.

The lawsuit has been characterized as a SLAPP, Strategic Lawsuit Against Public Participation, aimed at intimidating Trageser and draining his financial resources.

It is pending in the Court of Appeals. Rep. Nima Kulkarni has pre-filed an anti-SLAPP bill, BR 901, for consideration in the 2020 legislative session.


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.

In affirming Food Marketing Institute’s position that commercial or financial information is confidential 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 a 1974 federal appeals court ruling requiring proof of substantial competitive harm that had long guided interpretation of the law.

The dissenters pointed out that,
“[g]iven the temptation, common across the private and public sectors, to regard as secret all information that need not be disclosed, the majority’s reading will deprive the public of information for reasons no better than convenience, skittishness, or bureaucratic inertia.”


9. Creation of the Kentucky Open Government Coalition

In the midst of the 2019 legislative crisis, the citizen-based Kentucky Open Government Coalition was formed.

Its goal is to preserve, and one day extend, existing rights under Kentucky’s public access laws.

The Coalition has since incorporated as a nonprofit and obtained 501(c)(3) status, established a governing board, engaged with the National Freedom of Information Coalition, and established an active Facebook presence.

Opportunities for informing the public about Kentucky’s open government law, and threats to those laws, regularly present themselves. The Coalition hopes to expand its efforts in the coming years.


10. A new day 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 commitment to the laws by releasing the actuarial analysis; canceling an $8.5 million no-bid contract, awarded by the Bevin administration to Commmonwealth Center for Commercialization, in the name of transparency; and directing all executive branch agencies to accept 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 new decisions have been posted on the website since December 6.

If he is committed to open government, 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 open government law.

Amye Bensenhaver spent 25 years as an assistant attorney general in Frankfort and is an expert on open records and open meetings. Now out of state government, she writes about these issues. She has written more than 2000 legal opinions related to the state’s open records and open meetings laws. If you have questions or comments about Kentucky’s open records laws, please email her at missbhaver@gmail.com/em>

Related Posts

Leave a Comment