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Amye Bensenhaver: Top Ten ’21 Open Government Stories amid hollow ‘commitments’ to transparency

First 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.

1. New laws impede the public’s right to know

Stalled by COVID in 2020, state lawmakers seized the opportunity to erect statutory barriers to public access in 2021. In spite of organized media and stakeholder opposition, new laws were enacted that resulted in:

• A new exception to the open records law for inspection of photographs or videos (excluding body cam video) that depict the death, killing, rape, or sexual assault of a person – ignoring the value of bystander and surveillance videos in holding police and corrections officials, among others, accountable and ignoring the existence of the decades old privacy exception that protects these photos and videos if no public interest is advanced by their disclosure.

Questions have been raised about the intended scope of the exception. Is it meant to apply to the moment of death only or, more broadly, the period before and after. The exception has already been invoked to deny the public access to jail surveillance video depicting corrections employees’ responses to inmates’ medical crises and deaths.

Amye Bensenhaver

• A bill package quietly introduced in committee as a substitute for a bill “to introduce gender neutral language to statutes relating to financial institutions,” and passed out of the House of Representatives in less than 48 hours that:

1. restricted the use of the Kentucky open records law to Kentucky residents, narrowly defining that term “resident” until lawmakers were persuaded to broaden it;

2. mandated – later amended to “permitted” – the use of a standardized open records request form;

3. extended the deadline for agency response to an open records request from three business days to five business days;

4. introduced two new exceptions to the open records law, one so vaguely worded (“all public records or information the disclosure of which is prohibited . . . by state law”) — when juxtaposed with an existing exception for records made confidential “by enactment of the General Assembly” — that its purpose remains a mystery; and

5. removed the General Assembly and the Legislative Research Commission from the open records law, insulated the legislature’s denial of records requests made under KRS 7.119 – lawmakers’ “equivalent” of the open records law – from judicial review, and created an exclusive mechanism for internal review of those denials.

As expected, the residency requirement has created impediments to requesters inside and outside the Commonwealth. Nonresidents needing Kentucky records – and, yes lawmakers, that need legitimately exists — have been forced to locate willing residents to file their requests, and some public agencies have improperly demanded proof of residency as a condition of fulfilling requests.

The “permissive” standardized form has, in some places, been treated as mandatory. Requesters have been forced to accept (and pay for) hardcopies of electronic records at their physical addresses (rather than receiving electronic copies at their email addresses).

And that KRS 7.119 mechanism for review of LRC’s denial of requests for General Assembly or LRC records? In what is believed to be one of the first tests of the review mechanism, lawmakers ignored the appeal. Months after the appeal was filed, LRC’s denial was deemed affirmed with no consideration.

2. Redistricting behind closed doors

Ignoring requests from the Kentucky League of Women Voters for the appointment of an advisory commission to conduct open meetings and receive public input on the redistricting process — like those commissions with a primary or advisory role in 21 states — Republican lawmakers shuttered the process in Kentucky. Although lawmakers pointed to “a few open committee meetings about redistricting” and receipt of “some comment,” public objections to the lack of transparency in the redistricting process fell on mostly deaf ears.

Lawmakers released a House district maps on December 30 — five days before the start of the 2022 legislative session — and expect to release state Senate and U.S. congressional district maps during the first week of the session. Critics, including minority lawmakers, characterize the limited disclosure and lack of detail as “an attempt at fake transparency” and express continuing concern that “it wasn’t an open and transparent process.”

3. Legislative impeachment proceedings

The 2021 Kentucky Impeachment Committee – which met from January 11 to February 23 — touted a “major change” in its proceedings from impeachment proceedings of the past. Despite claims that it would not consider impeachment petitions filed against Governor Beshear, Attorney General Cameron, and Rep. Goforth “behind closed doors,” the committee conducted more than 16 hours of impeachment business in closed session and virtually no business in open session. Having already dismissed the petition to impeach Goforth – based on expert testimony that a legislator cannot be impeached — the proceedings culminated in a 4.5 hour closed session and a recommendation that no further action be taken on the petitions.

The committee released a summary report of its recommendations, but the verbal “give and take” that yielded those recommendations remains a mystery.

4. University secrecy

Financial mismanagement on a grand scale brought Kentucky State University to the brink of ruin — resulting in a state takeover, the hasty departure of President Christopher P. Brown, and a request for a $23M bailout. This emerged as a major story in 2021. While regents declared they were wholly unaware of the “liquidity crisis,” the university took action to silence the single regent who blew the whistle on the Brown administration, a staff member who was fired soon after a State Journal article appeared in which she discussed the crisis. Meanwhile, the university and its foundation continued to stonewall media open records requests. To avoid disclosure of records relating to Brown and his expenditures, the KSU Foundation sued The State Journal. The foundation challenged a favorable attorney general ruling — obtained by the newspaper — that mirrored a 1992 Kentucky Supreme Court opinion declaring the KSU Foundation a public agency for open records purposes. That case is pending in the Franklin Circuit Court.

Western Kentucky University continued to resist the Heights Herald’s efforts to access sexual harassment investigative records following a 4½ year legal battle that the university naively expected to conclude with the production of “seriously over-redacted” records. Attorneys for the newspaper indicate that the legal battle will continue.

The secrecy surrounding WKU’s Name and Symbols Task Force generated additional concern. Formed in 2020 – and comprised of nine faculty members, one regent, and one student – the task force was charged with recommending changes to “problematic names” on the WKU campus. It conducted no public meetings and made no effort to comply with the open meetings law. Members agreed (or were required) to sign nondisclosure agreements which a university spokesperson later described as “extremely common” at universities for matters that “could be devisive or controversial.” Subsequent reporting confirmed that the practice was widespread at WKU.

In December, veteran WKU administrator and 25 year general counsel Deborah Wilkins – who was described as “a force for transparency at WKU” — was “relieved or her duties” and “scrubbed from the university’s website.” University administrators were described as “tight lipped” about the reasons for Wilkins’ dismissal. They were similarly tight lipped a few days later when WKU’s Board of Regents “quietly” (without public discussion) approved 25% to 50% pay raises for many administrators against the backdrop of staff and faculty raises of 1.5% and tuition hikes.

We won’t address recent affronts to open government at the University of Louisville and the University of Kentucky, but would be remiss in failing to note that in November, the Kernel reported a major backlog of open records requests at UK (the public agency censured in March by the Kentucky Supreme Court for its handling of open records requests). The university attributed the backlog to the absence of the records custodian and the loss of her assistant – an excuse to which past attorneys general have been largely unsympathetic.

5. The Kernel case concludes in victory – the Heights Herald case picks up steam

In March, 2021, the Kentucky Supreme Court issued a decisive victory to The Kernel Press in its protracted legal battle with the University of Kentucky for access to records relating to the university’s investigation into student allegations of sexual harassment leveled against tenured entomology professor James Harwood. The Supreme Court excoriated the university for its handling of the request and rejected the university’s preliminary documents and Family Educational Rights and Privacy (FERPA) arguments. The Court returned the case to the Fayette Circuit Court for review of the university’s “specific privacy interest exemption claims as to the specific redacted documents and proposed redactions.”

Negotiation ensued and the Kernel received heavily redacted copies of the disputed records in May. UK continued to resist the newspapers demands for fuller disclosure about Harwood (to assess the seriousness of the professor’s conduct, the thoroughness of UK’s investigation, and the appropriateness of UK’s response).

In August, the Kernel announced that it would not take UK back to court over continuing university recalcitrance and risk undermining the “progress made in the Kentucky Supreme Court win.”

In an August editorial, the Kernel summarized the six year legal juggernaut:

“UK tried to play the long game. In reality, UK has shown its willing to put the safety of its students at risk in order to maintain an appealing image. But in the end, after six long years of fighting Kernel journalists, advisors, and attorneys, UK has reached the same outcome it would have by following the law and turning investigative documents over to the Kernel. Thanks for playing, UK. But when we lose sight of the truth, no one wins.”

Not long after the Court issued its opinion favoring access to university sexual harassment investigative records, WKU agreed to release its own long-disputed investigative records to the Heights Herald. The university subsequently disclosed 1,896 pages of heavily redacted records, signaling – in Heights Herald attorney Michael Abate’s view – that the university was acting in “bad faith” and a “continuation of a culture that is totally averse to transparency.” Abate has indicated that the Heights Herald is prepared to continue the battle in court

(To be continued: See Part Two tomorrow)

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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