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Amye Bensenhaver: How to succeed in open records by refusing to take ‘no’ for an answer

Al Cross, director of the University of Kentucky’s Institute for Rural Journalism and Community Issues, has succeeded where other open records disputants often fail. He did this by simply refusing to take “no” for an answer.

Cross is no stranger to the open records law, and his reputation for tenacity no doubt precedes him.

On March 20, Cross submitted a request to the Kentucky Horse Racing Commission for “an electronic copy, in Excel or Access format (not a PDF), of the list of Kentucky Breeders’ Incentive Fund Award winners, with all non-exempt address and ownership information included.”

Cross requested the records for a student who is writing a story for the Midway Messenger, a mostly online publication that his community journalism students produce for the community near Lexington.

His request prompted a three-page denial.

In its March 22 response, the commission argued that Cross’s request necessitated the nonobligatory creation of a “list” from “a working file for intra-office use” that included statutorily protected preliminary drafts, notes, recommendations, and memoranda and, if included, statutorily protected addresses the disclosure of which would constitute an unwarranted invasion of personal privacy.

To simplify matters, Cross submitted a revised request on March 24 for “the list of Kentucky Thoroughbred Breeders’ Incentive Fund Award winners for 2018, with their ZIP codes and any other address and ownership information that the commission does not consider exempt.”

Cross noted that the requested record is “not a narrative or memorandum with recommendations or opinions.” Nor, he continued, is it a draft. And because his revised request was expressly limited to ZIP codes, he disputed the commission’s position that it implicated personal privacy.

He requested a record, he explained, “that has been compiled,” and the awards announced, excluding any information the commission “believes to be exempt under KRS 61.878(4). That is a statutory requirement and thus does not constitute the creation of a new record.”

In other words, Al Cross persisted.

On March 26 the commission notified Cross that, “as a courtesy,” it “generated a customized record in Excel that includes breeders’ names and awards (together showing award winners), and zip code associated with each breeder.” In the end, he got what he wanted and in record time.

The lesson is a simple one. Do not be discouraged by the initial denial of an open records request. If clarification is sought and can be provided, provide it. If the legal argument supporting nondisclosure advanced by the public agency can be refuted, refute it. If the denial is devoid of supporting legal argument, demand it.

If these efforts fail, consider an appeal to the attorney general or the courts. A favorable outcome is not guaranteed, but some battles are worth fighting. This is especially true because many agencies rely on the public’s reluctance to challenge their denials to substantially reduce the number of open records appeals filed against them.

As the Kentucky Supreme Court has declared on more than one occasion, “the agency bears the burden of proof, and what it must prove is that any decision to withhold responsive records was justified under the [Open Records] Act.”

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. This article first appeared on the Kentucky Open Government’s Facebook page.

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