Bargaining away the public's right to know
COG2
Twice recently we have been reminded of the problems created when public agencies offer assurances of confidentiality in spite of their obligations under Kentucky’s open records law.
In the most recent case the attorney general concluded that a commitment made by the Glasgow Electric Plant Board to protect the identities of customers participating in a TVA financed project was unenforceable. The board has 30 days from the date on which 17-ORD-135 was issued to appeal the decision to circuit court.
In June the Kentucky Court of Appeals heard oral argument in the Purdue Pharma case. The central issue there is whether a previous attorney general’s agreement with the pharmaceutical company to seal documents obtained in litigation arising from the company’s fraudulent marketing of OxyContin must yield to the public’s right to know. An opinion in that case is expected soon.
On July 18 the problem reemerged. Attending a meeting of the Frankfort Plant Board, I listened to the board’s discussion of the pros and cons of adopting a confidentiality policy presented to the board by Kentucky Municipal Energy Agency (KyMEA), a public agency created by interlocal agreement to “allow the 10 Member Municipal systems to obtain cost effective, reliable, and environmentally responsible resources.”
The board wisely rejected the policy.
Going forward, however, the board may be required to execute nondisclosure agreements to obtain “confidential” information maintained by KyMEA unless KyMEA can be persuaded that access to public records is governed by the open records law and, in the case of two public agencies, a provision of the law authorizing agency sharing of otherwise exempt public records if the exchange serves “a legitimate governmental need or is necessary in the performance of a legitimate government function.”
In each of these cases I was reminded of an early line of authority emanating from the attorney general’s office recognizing that “a public agency cannot abrogate the mandatory provisions of the Open Records Law by a promise of confidentiality which is not authorized by KRS 61.870 to 61.884.”In other words, a public agency cannot bargain away the public’s right to know but can only “promise confidentiality as far as the permissive exemptions permit.”
Kentucky’s courts have weighed in on this issue as well. In Central Kentucky News-Journal v. George Kentucky’s highest court rejected the argument that “a confidentiality agreement may impute, per se, a public record with a privacy claim superior to that of the public’s right of access,” concluding that such an agreement “cannot in and of itself create an inherent right to privacy superior to and exempt from the statutory mandate for disclosure contained in the Open Records Act.”
The Court declared that “the people of this state, through their elected representatives, have stated in the clearest of terms that it is more important that they have access to . . . information than that it remain confidential.”
Of course the open records law recognizes a legitimate need for confidentiality in fourteen exemptions approved by Kentucky lawmakers and codified at KRS 61.878(1)(a) through (n). From the exemptions “we must conclude that with respect to certain records, the General Assembly has determined that the public's right to know is subservient to statutory rights of personal privacy and the need for governmental confidentiality.”
It is these exemptions, and not promises of confidentiality, confidentiality agreements or confidentiality policies that are not grounded in these exemptions, that govern access to records in the custody of a public agency.
Thus, KRS 61.878(1)(a) protects records implicating an individual’s privacy rights when those rights are superior to the public’s right to know. KRS 61.878(1)(c)(1) protects records confidentially disclosed to a public agency that are generally recognized as confidential or proprietary if open disclosure would permit an unfair commercial advantage to competitors of the entity that disclosed the records. KRS 61.878(1)(k) and (l) protect records made confidential by separate state or federal law. And so forth.
Public agencies have no business offering assurances of confidentiality, entering into confidentiality agreements or adopting confidentiality policies that are not grounded in these and the remaining ten statutorily recognized exemptions. To continue to do so invites open records disputes and costly litigation at the expense of the public’s right to know.