A nonprofit publication of the Kentucky Center for Public Service Journalism

Amye Bensenhaver: A disturbing report on status of ’21 Open Government; perhaps ’22 is less unkind

Second of two parts

The Kentucky Open Government Coalition has once again compiled its list of the Top Ten Open Government Stories of the year. In 2021, lawmakers, public officials, public agencies, and a few individuals planted hundreds of seeds, and shoveled on copious amounts of hollow “commitments” to transparency as fertilizer, providing undeniably fertile ground for our selections.

6. The secret report that cost taxpayers $1.2 million

The Kentucky Public Pension Authority resisted multiple demands that it release a report – for which Kentucky taxpayers bore the cost of $1.2M — purportedly documenting a New York law firm’s investigation and findings into “specific investment activities conducted by the Kentucky Retirement Systems to determine if there are any improper or illegal activities on the part of the parties involved” that are the subject of litigation involving major hedge fund firms.

KPPA contracted with the New York law firm, Calcaterra Pollack, in late 2020, and Calcaterra Pollack delivered the final report – which was shared with the Kentucky Attorney General – in May 2021.

Amye Bensenhaver

KPPA denied open records requests submitted by the Courier Journal, the Herald-Leader, Kentucky Government Retirees – a labor organization with 15,500 supporters that advocates on pension issues for retired public employees – and the Kentucky Open Government Coalition, among others. KPPA characterized Calcaterra Pollack as its “legal representative” and invoked the attorney-client privilege and work product doctrine in support of its denial of multiple requests. The Attorney General also denied open records requests for the report.

Public interest in KPPA’s disdain for the public’s right to know seems to have waned, but the issue remains an urgent one. Can a public agency evade accountability, and the open records law, by contracting with a private law firm – at taxpayers’ expense — to conduct an investigation into the public’s business and possible abuse of the public trust, then avoid accountability by invoking the attorney-client privilege? In at least one unrelated case involving a private attorney’s investigative report produced under contract with a public agency, the Franklin Circuit Court in 2020 said no, “The taxpayers paid for this report. They have a right to review it in full.”

7. The ongoing COVID crisis, coupled with disruptions at public meetings, result in modifications in meetings practice

Problems surrounding the Kentucky General Assembly’s intent and methodology in extending 2020’s Senate Bill 150 temporary modifications to the open meetings law into 2021 – including a provision for video teleconferencing of public meetings and “virtual” public participation – were eclipsed by the controversy surrounding public comment. Agencies explored various options to preserve public comment, including email comment, generating concerns about meaningful public input.

Kentucky’s open meetings law establishes the public’s right to attend public meetings, and to see and hear the meeting, but does not establish the right to participate by comment.

As agencies returned to in-person meetings and resumed in-person comment in 2021, new challenges arose. Controversial topics ignited heated debate and threats of violence. These disruptions prompted public agencies like the Jefferson County Board of Education to suspend in person comment and return to email comment.

In November, an attorney filed suit in Campbell Circuit Court challenging the Campbell County Board of Education’s requirement that attendees at board meetings wear masks. The plaintiffs allege that the requirement violates that section of the open meetings law which provides that “[n]o conditions other than those required for the maintenance of order shall apply to the attendance of any member of the public at any meeting of a public agency.” The case resulted in the board’s decision to cease in-person, and returned to video teleconferenced, meetings. It is pending.

8. Police accountability still in the news

In January, Louisville Metro released the $190,000 taxpayer funded Hillard Heintze audit of the Louisville Metro Police Department – an agency plagued by public mistrust born, in part, of secrecy and defiance of the open records law. The report, awkwardly designated “confidential and proprietary” on every one of its 155 pages, contained no reference to open records compliance or the public’s right to know.

Not surprisingly, the consultant’s recommendations did little to stem the tide of open records disputes/litigation involving access to LMPD’s use of force investigations and police disciplinary records.

A new wrinkle emerged in July when the Courier Journal reported that LMPD may have “intentionally dodged a paper trail” to evade open records disclosures relating to its decision to demote Maj. Aubrey Gregory. Attorneys for the Courier worried that this signaled “a new era” where agencies avoid accountability “simply by not creating records in the first place.” In November, the Courier reported on a new police contract that included provision for the hasty destruction of “informal” complaints of police misconduct. Governing state records management law does not recognize a distinction between “formal” and “informal” complaints.

Governor Beshear’s announcement in mid-November that his 2022 budget request for the Kentucky State Police would include $12.2M to equip Kentucky State Police troopers with body cameras for the first time followed an in depth investigation into police shootings in rural areas by the Kentucky Center for Investigative Reporting, WDRB’s September Sunday Edition, “Lack of trooper cameras clouds Kentucky State Police cases,” and a Lexington Herald-Leader editorial that concluded:

“Those who vow to protect and serve should be more interested in telling the public about their faults and those of other police departments. The thin blue line of silence serves no one, particularly not police themselves. Its time for them to do better and develop a ‘standard operating procedure’ on transparency and accountability. Being accountable to no one serves no one.”

9. The battle for public access to public official and employee communications about public business on private devices and accounts

In July, Attorney General Daniel Cameron issued the first of a series of open records decisions resurrecting a widely repudiated 2015 decision by former Attorney General Jack Conway. Both ignored caselaw, and years of internal agency authority, recognizing that “it is the nature and purpose of the record, not the place where it is kept” that determines its status as a public record. Both ignored the plain text of the open records law and the definition of the term public record which includes documentation, regardless of physical form or characteristics, that is “prepared, owned, used, in the possession of, or retained by a public agency.” Conway, and later Cameron, determined that because public official/employee communication about public business conducted on private devices or accounts was not “possessed” by the public agency the official or employee served, it was not a public record.

Following the Kentucky Department of Fish and Wildlife Commission’s denial of the Kentucky Open Government Coalition’s open records request for emails and texts relating to Commission business sent and received on commissioners’ private devices and accounts, the Coalition filed suit in Franklin Circuit Court against the Commission on September 3. The Coalition is represented in the case by First Amendment and open records law experts Michael Abate, Jon Fleischaker, and Rick Adams of the Louisville law firm Kaplan, Johnson, Abate, and Bird.

Abate asserts that the case presents “one of the most important Open Records issues ever to arise under the Act,” and one that, if not decided in favor of the Coalition and the public, “will gut the Open Records Law.”

The parties have filed cross-motions for summary judgment. Judge Thomas Wingate heard oral arguments in the case on December 6, and the parties await an opinion.

10. Kentucky Attorney General finds new and creative ways to undermine the public’s right to know

In September, Courier Journal reporter Andy Wolfson explored “How Attorney General Daniel Cameron has eroded Kentuckians’ access to public records.” Wolfson concluded, “The fact is, Cameron and the lawyers under him have done more in his first two years in office to dramatically curtail the public’s right to know than any attorney general in recent memory.”

Wolfson analyzed the numbers, determining that “Cameron’s staff affirmed government agencies rulings in full 54% of the time compared with 44% under Beshear.” Cameron’s office, Wolfson found, “tended to give the benefit of the doubt to law enforcement and government officials with rulings in several areas, expanding their ability to keep information secret.” Kentucky Open Government Coalition director Amye Bensenhaver stated it more succinctly, asserting that Cameron regularly “rubber stamped” agency denials. Kentucky’s most widely recognized champion of open government, attorney Jon Fleischacker, declared that Cameron “misstated the law” to give public agencies “a free pass.”

That “free pass” has manifested itself in other ways. Cameron has sparingly utilized his statutory authority to review disputed records to independently confirm or refute an agency’s reliance on an exception to the law. He has rarely employed the same statute to solicit additional documentation from the agency to expand his understanding of the legal issue before him. This is consistent with Cameron’s 2020 request to the Warren Circuit Court that the court dismiss former Attorney General Beshear’s intervening complaint — in WKU’s lawsuit against the Heights Herald — to clarify the scope of that statutory authority to review disputed records or solicit additional documentation.

In a more subtle move, Cameron “demoted” “Government Transparency” from an agency “Priority” — with a direct link on the homepage of his website — to a “Resource,” requiring the user to dig deeper into the website for information about open records and meetings.

Finally, Cameron made abundantly clear that he does not believe he is constrained by the body of internal agency authority issued by past attorneys general in resolving open records and open meetings appeals. He has, as Wolfson notes, deviated from past decisions without legal justification (such as a change in the law or an appellate opinion repudiating past attorneys general decisions). He has demonstrated an obsession with brevity in those decisions that frequently does violence to their value to the public.

Facts and arguments, it appears, are cherry picked to advance a predetermined agenda driven outcome.

Cameron’s office declares that its open records and open meetings decisions are guided by “the rule of law.” The “rule of law” in Cameron’s case is the office playbook for eliminating those pesky decisions issued by his predecessors that have “caused inconvenience or embarrassment to public officials or others.”

So there you have it. Let’s hope 2022 is less unkind to the public’s right to know.

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 helped establish the Kentucky Open Government Coalition to provide a voice for all citizens who support government transparency and accountability. 

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