One year later: what the attorney general and I learned about the value of Kentucky's sunshine laws

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At 9:01 p.m. on August 31, 2016, I sent an email to several friends and colleagues from my office in the basement of the Capitol. The subject line read, “Catch you on the flip side.” It contained the following message:

"As many of you know, this is my last day of service to the Commonwealth (and it’s been a late one). I wanted to let you know that if I can ever assist you with anything open records/meetings related (or otherwise, within reasonable limits), please feel free to call or email me.  This is not a decision I made by choice and I fully intend to remain involved in open records/meetings, in some capacity, going forward. I will try to make myself useful. It’s been a great pleasure knowing and working with all of you."

I had served as an assistant attorney general in the opinions branch of the office’s division of civil and environmental law for the previous 25 years in what I once described as the “best job in state government,” authoring open records and meetings decisions, educating public officials and others about these laws, and assisting the public in using the laws “to make transparent the operations of the state's agencies.”

Conditions in the office had deteriorated over time, and it was clear that my services were no longer valued or desired. I did not know, as I left the Capitol for the last time that evening, what awaited me or, more importantly, what awaited the area of law in which I had worked for many years.

In the next several days, I learned that there was an unspoken appreciation for the value of service to Kentucky’s sunshine laws. Across the state, the media and the public responded to these events. The Advocate Messenger wrote that news of my departure was “like reading that the Bengals had cut A.J. Green just before the season opener because the new quarterback doesn’t like his running style.” A friend later explained to me that being referred to as the “A.J. Green of government transparency” was a good thing.

And in what has to be described as the most unique, and certainly the best, retirement gift I could have imagined, the Lexington Herald-Leader ran an editorial cartoon depicting the circumstances of my departure.

Happily, my retirement has yielded many positive outcomes.

Having been named director of the Bluegrass Institute’s Center for Open Government, I continue to work on open records and meetings initiatives in a respectful environment -- where politics plays no role --  with a staff whose commitment to open government is absolute. At last I am free to express my opinions, assist others, and advocate for meaningful and much needed change to our widely respected but outdated laws without fear of retaliation or reprimand.

Most importantly, the attorney general has awakened to the reality that the open records and meetings laws invest him with the public trust. His statutory functions must be, and now are, being discharged in an atmosphere as nearly free from political intrusion as is possible in an elective office.

In June, 2016, his office issued 16-OMD-124 -- a 21 page decision that was overtly political and legally incorrect -- holding that the Kentucky Retirement Systems violated the open meetings law when the governor dispatched the state police to its meeting. The attorney general gratuitously devoted several pages to criticism of the governor rather than the legal issue actually presented. One year later, the decisions issued by his open records and meetings staff reflect an objective and balanced analysis of the laws.

Contrary to critics’ beliefs, the decisions are no longer politically driven. I may not always agree with them, but they generally represent a reasoned interpretation of the facts and law. The only known exception is this attorney general’s failure, when the opportunity presented itself in 16-ORD-262, to overrule a notoriously bad open records decision issued by his predecessor on his last day in office holding that electronic communications concerning public business exchanged by public officials and employees on personal devices are not subject to the open records law. He has otherwise permitted his staff to properly discharge this statutory function.

Through no fault of the open records and meetings staff who wrote the decisions, statutory deadlines for issuance of open records and meetings decisions were ignored in the last several years of the previous attorney general’s administration. This bad habit – a violation of the statutes -- carried over into the first year of the current attorney general’s administration. Since September, 2016, the deadlines have been closely observed.

These improvements are reflected in the weekly press release of open records and meetings decisions issued by the attorney general’s office. The release also suggests that the attorney general avoids assignment of politically sensitive appeals to non-merit staff. His merit staff still suffers under the weight of an enormous workload, but they are finally accorded the respect they were once denied.

And for the first time, the attorney general has intervened in a circuit court appeal of an open records decision to defend ”the single most important tool [his staff has] in ferreting out the truth in an [open records] appeal”  presented to his office.

We can only hope that the courts’ ultimate resolution of this legal issue reflects an appreciation for the importance of the public trust invested in the attorney general in adjudicating open records and meetings disputes.

It is safe to say that none of these improvements would have taken place if I had remained in the attorney general’s office. Despite the merit staff’s best efforts, there was insufficient impetus for change until shortly after August 31, 2016.As for me, the offer of assistance with “anything open records/meetings related” that I made in that late night email to friends and colleagues stands. I can be reached at abensenhaver@freedomkentucky.com or 859.444.5630.