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Amye Bensenhaver: Is there an ideal public records law? Kentucky is among the majority with its D+

Is there an ideal public records law among the 50 states?

MuckRock, a self-described “collaborative news site that brings together journalists, researchers, activists, and regular citizens to request, analyze, and share government documents, making politics more transparent and democracies more informed,” recently asked this question.

The article begins by noting that in a “State Integrity Report” issued by the Center for Public Integrity in 2015, only three states’ laws scored higher than a “D+”: Connecticut, California, and Alaska, each receiving a “C.” Kentucky found itself among the majority of states, receiving a D+.

MuckRock examined impediments to records access, including the number of exceptions to public inspection, copying fees, agency response time, enforcement mechanisms, and penalties for noncompliance.

Amye Bensenhaver

Although MuckRock did not mention Kentucky, either favorably or unfavorably, in its analysis, the Commonwealth stacks up well in each of these categories.

With the addition of two exceptions in July 2018, one relating to public procurement and the other relating to “communications of a purely personal nature,” the Kentucky Open Records Act contains 16 exceptions, all of which must be “strictly construed.” The addition of new exceptions to the Act is a rare occurrence. Prior to 2018, two exceptions were added in 2005, a homeland security exception and an exception for records having historic, literary, artistic, or commemorative value donated by a nonpublic donor to public depositories under terms of restricted access. The last exception before 2005 was enacted in 1994 and exempted public records developed in the regulation of financial institutions.

Compare, on the other hand, Tennessee with 563 exceptions in its public records law and Florida with over 1000 exceptions.

Florida’s law is nevertheless “touted as one of the best” because it applies to all branches of government and is embedded in the state’s constitution. Florida’s constitution also mandates single subject bills “so no exemptions get lost within larger bills.”

The same is not true in Kentucky. Our legislative branch of government operates under a modified version of the Act codified in 2003 at KRS 7.119. The administrative arm of our judicial branch operates under an open records policy recently adopted by the Supreme Court after embarrassing revelations of financial mismanagement.

Nor does Kentucky require single subject bills. This became a serious problem in the 2018 legislative session when public access exceptions and amendments were quietly appended to wholly unrelated bills.

Reasonable fees

Kentucky fares well on the issue of reasonable fees for copies, holding the line at the ten cents per page for standard hard copy records first recognized by the courts as reasonable in the 1980s, and rejecting imposition of agency staff search fees for noncommercial requesters.

But the “sale” of public information by public agencies, without regard to reasonable fee requirements imposed by the Open Records Act, is on the rise. The failure of modernizing the Act—last substantially amended in 1994—has resulted in antiquated approaches to fee calculation that drive up the cost of copies. And the apparent lack of meaningful opportunities for open records education has produced some appalling agency missteps—like the city that recently demanded payment of $5,000 by a commercial requester before it undertook a search for responsive records.

MuckRock applauds California for its ten-day agency response time—identified as one of the shortest in the nation—but notes that the state lacks a formal appeals process or other enforcement mechanism and that the public’s remedies lie exclusively in the courts.

Again, Kentucky compares favorably to California. The Commonwealth’s three-business-day agency response time is considerably shorter than California’s, though abusive extensions of the deadline for response are increasingly common. Kentucky’s statutory appeal process through the Office of the Kentucky Attorney General is simple, free, and quick — 20 to 50 days by law. But the effectiveness of the appeal process is a function of the Attorney General’s commitment to the law and his/her willingness to de-politicize the process and to invest the necessary resources. And, should the dispute proceed to court, the cost and time expended increase exponentially.

MuckRock also applauds Connecticut, widely recognized for its public records law. Its law reaches all government agencies, contains a small body of 25 exceptions, has strong penalties, and establishes a Freedom of Information Commission that intervenes in records access disputes and issues orders in those disputes. But a Commission hearing may take months to schedule and the process is described as “lengthy and tedious.”

The edge goes to Kentucky here as well. Our law applies, by its express terms, to all state and local government agencies, public universities and schools, and even some private entities that derive at least 25% of their funds from state or local authority funds. As noted, our body of exceptions is smaller than Connecticut’s and our penalties –up to $25 per day for each day a record is willfully withheld as well as costs and attorneys’ fees—have yielded some dramatic judgments. In 2016, for example, Kentucky’s courts affirmed penalties in the amount of $756,000, and attorneys’ fee of more than $360,000 in a case involving the Cabinet for Health and Family Services’ willful withholding of records relating to child fatalities. Finally, our administrative appeals process takes no longer than 20 to 50 days in those cases where the Attorney General properly discharges his/her statutory obligation.

Some deficiencies

There is no clear explanation for Kentucky’s low marks or lack of recognition by MuckRock.
One thing is certain. Kentucky would have fared far worse had MuckRock looked at the two greatest deficiencies in its public records law: 1) the ease with which new exceptions can be covertly enacted and 2) the outdated educational requirements for public officials.

The 2018 legislative session witnessed the passage of several new exceptions/amendments to our public access laws that were “lost [or hidden] in larger bills.” Kentucky should consider a measure such as that recently adopted in Oregon requiring an open government impact statement — much like a fiscal impact statement—for every bill introduced.

Kentucky should also update its educational requirements for public officials. In 2005, the legislature mandated distribution of written materials relating to open records and meetings to local, school, and university officials when the officials take office or when the law is amended. But more effective methods of educational outreach are available, and the absence of an enforcement mechanism/penalty has resulted in limited compliance.

A “D+” ignores the virtues of Kentucky’s law. But much can be done to improve it, and even an ideal public records law is only as good as the public agencies that implement, interpret, and enforce it.

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 opiios related to the state’s pen records and open meetings laws.

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