Basking in the sunlight of last week's open records and open meetings victories

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Few weeks have rivaled the week of October 30 to November 3 for reaffirming the principles of open government. A description of the week’s events follows.

On October 30, the attorney general ruled that the Cabinet for Health and Family Services violated the Open Records Act in denying the State Journal’s request for records relating to the “state’s involvement with Jaxton and Kirsten Dean.” Earlier this year, the State Journal reported that two year old Jaxton and his mother, Kirsten, had died in an apparent murder suicide.

The Cabinet acknowledged the existence of a past as well as a pending investigation, but denied the newspaper’s request based on KRS 61.878(1)(h), an exception that is often invoked while an investigation is proceeding.

But in a 2013 opinion, the Supreme Court established that the exception is “appropriately invoked” only “when the agency can articulate a factual basis for applying it, only, that is, when, because of the record's content, its release poses a concrete risk of harm to the agency in the prospective action.”

The attorney general's management team was slow to accept the Court’s opinion, to the great frustration of his open records/meetings staff, and in a series of open records decisions  went to great lengths to affirm agency denial of access to records in open investigative files.17-ORD-224 signals -- once and for all we hope -- the end of this strained attempt to shield investigative records from public inspection. The attorney general properly determined that the Cabinet violated the Open Records Act in withholding investigative records relating to Jaxton and Kirsten Dean without showing how release of the records “poses a concrete risk of harm to the agency in “a prospective action.” The law is clear on this point, and past open records decisions should no longer muddy these waters.

On November 1, the Franklin Circuit Court rejected –  for largely the same reasons --  the Kentucky State Police’s reliance on KRS 61.878(1)(h) to deny an open records request for records relating to a 22 year old criminal case. In Sarah Teague v. Kentucky State Police, the court identified the “potential harms articulated by KSP” which included release of “heretofore undisclosed investigative details [that might] tip off individuals involved in the crime,” “bias a potential jury pool,” or “adversely color witness recollections of the events.”

Characterizing these concerns as “vague, speculative, and extremely remote,” the court concluded that the requester, the mother of the victim in the unsolved case, was entitled to copies of 911 tapes which, strangely enough, KSP had previously permitted her to hear.

The importance of the Supreme Court’s 2013 opinion as an antidote to secret investigative activity cannot be overstated.

On November 2, the attorney general held that the Kentucky Board of Medical Licensure improperly denied a request for the recording of a disciplinary hearing involving an impaired physician and conducted under Chapter 13B of the Kentucky Revised Statutes.

KRS 13B.080(8) expressly provides that such disciplinary hearings “shall be open to the public unless specifically closed pursuant to a provision of law.” Moreover, KRS 13B.090(6) entitles  “[a]ny person, upon request, [to] receive a copy of the recording or a copy of the transcript, if the hearing has been transcribed, at the discretion of the agency, unless the hearing is closed by law.”

The board maintained that the entire recording of the hearing was shielded from public inspection by an order sealing the record. No specific legal authority, state or federal, was cited in support of the order and no evidence was presented that the hearing was “closed by law.”

On this basis -- and consistent with the unambiguous language found in Chapter 13B – the attorney general concluded in 17-ORD-231 that the Board of Medical Licensure improperly denied the requester access to the recording.

Also on November 2, the Kentucky Supreme Court confirmed the public’s right of access to the financial records of a utilities management company –  privately incorporated but wholly funded through its contract with local government -- that had evaded scrutiny since 2011.In Utility Management Group, LLC v. Pike County Fiscal Court, the Court determined that the company, UMG, was a public agency as defined in KRS 61.870(1)(h) – the “25% rule”-- when, in 2011, the Pike County Fiscal Court requested access to its business records.

UMG had denied the fiscal court’s request, asserting that it was not a public agency for open records purposes. On appeal, the attorney general rejected UMG’s position and determined that because it derived more than 25% of its funding from local authority funds, it must disclose the requested records.

As the case proceeded through the courts, opponents of the 25% rule succeeded in convincing the General Assembly to narrow its application by excluding from the 25% calculation public funds derived under competitively bid contracts. This, conveniently, included UMG. The issue for the courts, thereafter, became one of retroactive application of the amended statute to prohibit access to UMG’s business records notwithstanding the fact that it was a public agency at the time the request was made.

The Court rejected UMG’s retroactive application argument and concluded that the public must be afforded access to the business records requested in 2011.Serious problems persist with KRS 61.870(1)(h) as a consequence of the ill-advised 2012  amendment to the statute. But for now, open government advocates can bask in the sunlight of this and the others victories recounted above.

Each of these victories merits its own blog. And -- with the exception of the last -- the Bluegrass Institute Center for Open Government played a direct or indirect role in each by assisting the requesters in the development of arguments and the drafting of records request, letters of appeal, and briefs to the court.

But it was the Bluegrass Institute Center for Open Government itself that filed an open meetings appeal and secured another significant victory for open government last week. On November 1, the attorney general issued 17-OMD-228 declaring that the Kentucky House of Representatives violated the Open Meetings Act when it conducted a closed meeting of a quorum of its members in late August to discuss pension reform. An analysis of our victory in that appeal will be the subject of a future blog.

For now it’s safe to say that it doesn’t get any better for access advocates than the week of October 30 to November 3.