Ambiguity allows officials to use tech toys, dodge sunshine laws

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Bluegrass Institute Center for Open Government Director Amye Bensenhaver and President and CEO Jim Waters joined Kruser and Krew on Lexington’s NewsTalk 590 WVLK-AM  this week for a segment on Bensenhaver’s report.Sunshine laws, Bensenhaver told the afternoon radio audience, are laws that “guarantee the public’s right of access to open records…and open meetings.” The state enacted the laws in parallel with the federal Freedom of Information ACT in “recognition that … we need those same kinds of guarantee of access.” These laws apply to agencies that receive at least 25 percent of their funding from the government.

Unfortunately, the sunshine laws are getting outdated. These open records and meetings laws were last updated in 1994, with the last substantial changes being passed in 1992.Twenty-five years later, much work remains to be done.

Under current statute, a public official could dodge open records laws by using Skype because of a lack of clarity in the language. Bensenhaver emphasizes the importance of change to “eliminate those ambiguities that exist in the statute.”

Bensenhaver addressed violations of the sunshine laws by two of the commonwealth’s universities.

University of Louisville’s latest audit demonstrates shocking cover-ups of blatant transgressions. The University of Kentucky has held meetings, “with trustees in less-than-quorum meetings to discuss the budget excluding the public from those meetings, she explained.”

Acting this way keeps the budget discussions off the record, she noted.

These are not isolated incidents, according to Bensenhaver.

“Based on the flaw within the statute, (lack of transparency) has been a perennial problem across the state,” she said. Ignoring transparency means “you get no public discussion of a public issue.”

Bensenhaver warned: “one of the gravest threats to public access... is a decision rendered by former Attorney General Jack Conway on the last day of his  administration.” The decision declared that “those communications between public officials, if they are conducted on private devices, do not constitute public record,” Bensenhaver declared.

“That decision is so wrong,” she declared.

Kentucky has fallen behind in addressing the need for revision, which is why the Bluegrass Institute is so deeply committed to transparency.

Amy Searl is working with The Bluegrass Institute through the Koch Internship Program.