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Amye Bensenhaver: The Voice-Tribune’s key role in evolution of Ky. open records law often overlooked

Few may know or remember the importance of The Voice-Tribune — a local newspaper, established in 1949 — in the evolution of Kentucky’s Open Records Act.

The newspaper celebrated the release of its final edition — and its long history — at a gathering on August 5.

That history includes a landmark Court of Appeals’ opinion, City of St. Matthews v. Voice of St. Matthews, that some groups and individuals argued — albeit temporarily — eliminated the need for enactment of an open records law.

In 1974, the court rejected the City of St. Matthews’ reliance on the common-law rule that a person is entitled to inspect public records only if s/he has a “special interest” — only, that is, if s/he has “an interest therein which is such as would enable him to maintain or defend an action for which the document or records sought can furnish evidence or necessary information.”

Amye Bensenhaver

The City of St. Matthews had adopted this rule in permitting Voice of St. Matthews — The Voice-Tribune’s predecessor — access to “minutes of the city council meetings, ordinances and resolutions adopted by the council, docket books of the city police court” but denying Voice of St. Matthews access to:

“tax assessment records, records of tax bills and payments and cancellations or abatements thereof, payroll records, building permits, traffic accident reports, traffic arrest citations, general police arrest records, bills and invoices of the city, communications to and from public officials relating to official business of the city, invitations to bid and bids received for public projects, records of zoning authorities and financial records including checkbooks and ledgers.”

The court considered, and rejected, prior caselaw — as well as the adequacy of existing statutes — in declaring:

“The right of members of the general public to inspect public records is of such basic importance as to require a re-examination of our law upon the subject.

“The extent to which public records should be subject to inspection is a matter of public policy. Ordinarily, we look to the General Assembly, as the most direct representatives of the people, to establish public policy in matters such as this but, except in limited areas, the General Assembly has not legislated precisely upon this subject. In these circumstances, it is entirely proper and strictly in keeping with the ancient tradition of the common law for the courts to provide a policy when necessity demands it.

“We cannot find any valid basis in our society for the imposition of the requirement of the interest stated in the common-law rule as a prerequisite to the right to inspect public records. The rule originated under a monarchic form of government in which the people were subjects of the Crown. It seems to us that a rule which had its genesis under that type of government is likely to be ill-suited for application in a democratic society where the government is administered by elected representatives of the people.

“Intelligent selection of elected officers depends upon an informed citizenry and for that reason, it appears to us that public policy should favor rather than impede the right of the individual citizen to be informed as to matters relating to the operation of his government.”

Overruling prior opinions, the court declared:

“We consider the necessity of showing an interest such as would enable a person to maintain or defend a lawsuit as a prerequisite to his right to inspect a public record to be an unwarranted impediment to the right of people generally to acquire information concerning the operation of their government.”

Retreating ever so slightly from holding “that there exists in all persons a carte blanche right to inspect public records absent the showing of some prerequisite interest,” and rejecting the notion that “a person has the right to demand inspection of public records to satisfy idle curiosity or for the purpose of creating a public scandal,” the Court of Appeals held “that the right to demand inspection of public records must be premised upon a purpose which tends to advance or further a wholesome public interest or a legitimate private interest.”

With this in mind, the court established the pre-open records right of public access as follows:

“Every person shall be entitled to inspect the public records of the state or any county or municipality therein provided:

“(1) The inspection shall be conducted at reasonable times and places and in such a manner as not to unduly interfere with the proper operation of the office of the custodian of the records.

“(2) The records sought to be inspected are not exempt from inspection by law.

“(3) The disclosure of the information would not be detrimental to the public interest or violative of confidentiality under a countervailing public policy entitled to greater weight than the policy favoring free access to public records.

“When a demand for the inspection of public records is refused by the custodian of the record, the burden shall be upon the custodian to justify the refusal of inspection with specificity.”

These words echo in the open records law we know today.

Two years later, the General Assembly accepted the challenge “to establish public policy” in this critical matter by enacting the open records law — factoring in objections voiced by Governor Wendell Ford in vetoing a version of the open records law enacted in 1974 as well as the court’s concerns about the scope of the term “public record.”

Questions arose about the need for an open records law after City of St. Matthews v. The Voice of St. Matthews, some opposing its enactment, but lawmakers and LRC staff persisted — in particular, Danville Representative Joe Clarke — electing to define terminology and clearly articulate exceptions rather than open the litigation floodgates.

The resulting law has been vilified and threatened, but it survives.

And for this we can, at least in part, thank the Voice of St. Matthews — renamed “The Voice-Tribune” by one-time owner and editor, John Harralson, Jr. — which publishes its last edition after many decades this month.

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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