A publication of the Kentucky Center for Public Service Journalism

Amye Bensenhaver: The year in review — open government defeats and victories in 2018

From a failed legislative attempt to undermine the open records law by redefining “public record” to exclude public officials’ communications about public business on their private devices and accounts to a series of cases reaffirming the principles that support that law, Kentucky’s open government laws experienced legislative defeats and judicial victories in 2018. Along the way, we were regularly reminded of the value of open government laws to good government.

Legislative defeats: 2018’s long legislative session dealt the open records and open meetings laws a substantial blow with the enactment of three new statutory exceptions. HB 302 erects an absolute barrier to public oversight of procurement processes, including those conducted under the widely known Model Procurement Code. KRS 61.878(1)(o) authorizes nondisclosure of all records relating to a procurement until a contract is awarded or the process is canceled. A corresponding open meetings exception, KRS 61.810(1)(n), authorizes “selection committees, evaluation committees, or other similar groups” established under state procurement laws to conduct “meetings. . . to select a successful bidder for award of a state contract” in secret.

Amye Bensenhaver

HB 302 also created a new exception to the open records law for “communications of a purely personal nature unrelated to any governmental function.” KRS 61.878(1)(p) was the result of a hastily brokered compromise between legislators who advocated redefining the term “public record” to exclude public officials’ “emails, texts or calls on devices paid for entirely with private funds and which do not involve government email accounts” and open government proponents who, recognizing that the transaction of public business on private devices and accounts to evade public scrutiny is an increasingly common practice, vigorously objected.

The legislature also amended a 24-year-old open meetings provision. KRS 61.826 was originally enacted to promote public attendance at public meetings conducted in a single site by video teleconferencing the meetings at various meeting sites across the state under restrictions aimed at protecting the public’s rights under the open meetings law. As amended by HB 592, KRS 61.826 abandons the law’s original intent, shifting the long recognized preference for the physical presence of public officials at public meetings to remote electronic participation by removing the obstacles that impeded the latter practice and eliminating the law’s original protections for the public’s rights.

Conversely, HB 373, “An Act relating to disclosure of body-worn camera recordings,” provided a model for measured and thoughtful legislative response to challenges presented by evolving technology and records keeping systems. The newly enacted KRS 61.168 affirms the application of the open records law, as well as laws relating to records management found in Chapter 171, to body-worn camera recordings, striking a balance between the public’s interest in monitoring police activity and individual privacy interests as well as the interests of law enforcement agencies.

Judicial victories: The courts countered these defeats with a series of victories for the public’s right to know.

On September 14, the Kentucky Court of Appeal ruled that a university directed audit of documentation relating to physician medical services and billings at an affiliated clinic must be disclosed. In University of Kentucky v. Lexington H-L Services, Inc. the court rejected the university’s “novel” and expansive interpretation of the preliminary documents and attorney-client/work product exclusions in favor or a narrow interpretation of these exclusions. UK has petitioned the Kentucky Supreme Court for review.

In Finance and Administration Cabinet, Department of Revenue v. Mark F. Sommer and Tax Analysts, issued on November 1, the Supreme Court recognized the public’s right of access to “great bodies of information related to the reasoning and analysis of the Department of Revenue with respect to its administration of our tax laws.” The Court determined that final rulings issued by the Department in tax assessment protests that are not appealed to the Board of Tax Appeals are subject to public inspection after personal identifiers are redacted from the rulings. A motion for reconsideration is pending in the case.

On December 14 the Court of Appeals issued an opinion in Purdue-Pharma Inc. v. Boston Globe Life Sciences Media LLC d/b/a STAT, affirming a circuit court ruling that unsealed documents obtained by the Kentucky Attorney General in a lawsuit against Purdue, the manufacturer of OxyContin, and sealed under the terms of a 2015 settlement agreement. The court reasoned that disclosure of the documents would enable the public to “assess whether [the] government[‘s] decision to compromise a valuable claim of the people adequately protected their interest or maximized the claim’s value.” The documents will remain sealed for 30 days while Purdue weighs its legal options.

In other litigation, the Court of Appeals heard oral arguments on September 25 in The Kernel Press, Inc. v. University of Kentucky. The case drew national attention in September 2016, when CNN reported on it and September 2017, when it was cited by the Associated Press as one of several examples of public agencies “turning the tables by suing public records requesters.” In this case, the University of Kentucky, sued its student newspaper, The Kernel, and the newspaper’s editor after the newspaper received a favorable ruling from the attorney general in an appeal from the university’s denial of a request for records relating to sexual harassment complaints leveled by students against a professor. The newspaper awaits an opinion from a newly assigned panel of the court following the defeat of one of the original panel members in the November election.

Also on September 25 a Jefferson Circuit Court determined that Louisville Metro Government must release the details of its failed proposal for the second Amazon headquarters. The city subsequently announced that it would appeal the circuit court’s ruling to the Kentucky Court of Appeals.
On October 5 the Court of Appeals denied the Cabinet for Economic Development’s request that it stay enforcement of the Franklin Circuit Court’s ruling that the Cabinet must disclose the names of shareholders in Braidy Industries, Inc., to the Courier Journal. In 2017, Braidy, a private company, received a $15 million direct investment from the state in exchange for a commitment to build a $1.68 billion aluminum rolling mill near Ashland. Because the court ruled on the Cabinet’s motion to stay enforcement only, the case remains on appeal.

On October 11 the Franklin Circuit Court issued opinions in two open records cases pitting the Kentucky Center for Investigative Reporting against state agencies that refused to disclose portions of records relating to complaints of sexual misconduct in the workplace. In both cases, the court rejected the agencies’ invocation of the privacy exception in this factual context because “the primary actors and witnesses are public employees, and all conduct involved took place in the public workplace,” concluding that records ”involving allegations of workplace sexual misconduct in a public agency. . .must be characterized as presumptively public.”

A third case involving the Courier Journal’s access to records relating to allegations of sexual harassment leveled by a former high ranking social services official against a male colleague at the Cabinet for Health is pending in the Franklin Circuit Court.

Audits confirm the need for greater transparency: In the midst of these victories and defeats, Auditor of Public Accounts Mike Harmon concluded an audit of the Administrative Office of the Courts in July that confirmed a lack of “sufficient policies . . . to provide transparency and oversight” within the agency. He announced the findings of an examination of KentuckyWired, the statewide broadband project announced in 2014 that has been plagued with cost overruns and missed deadlines, in September, recommending the need to ensure that “future projects are done in a responsible and transparent fashion.” In December, Harmon released an audit of the Department for Fish and Wildlife that again confirmed a “greater need for [the agency] to act in a responsible and transparent fashion” and recommended “a change in culture.” In announcing the results of an audit of the Kentucky Retirement Systems in December, Harmon advised that a separate examination, relating to the Retirement Systems’ compliance with Senate Bill 2, enacted in 2017, which included specific requirements aimed at transparency, is underway.

In spite of the legislative defeats Kentucky’s open government laws suffered in 2018, these cases, and Harmon’s findings, reaffirm that “[t]he public’s ‘right to know’ under the Open Records Act is premised upon the public’s right to expect its agencies properly to execute their statutory functions. In general, inspection of records may reveal whether the public servants are indeed serving the public, and the policy of disclosure provides impetus for an agency steadfastly to pursue the public good.”

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.

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