Bluegrass Beacon: Holding public records hostage

Amye Bensenhaver

By Amye Bensenhaver, Guest Columnist

Editor’s note: The Bluegrass Beacon column is a weekly syndicated statewide newspaper column posted on the Bluegrass Institute website after being released to and published by newspapers statewide.

While employed as an instructor at the University of Kentucky’s School of Journalism, former hostage Terry Anderson recounted his five-year battle with federal agencies to obtain copies of public records under the Freedom of Information Act (FOIA) relating to the government’s efforts to secure his release from Hezbollah kidnappers during his nearly seven-year captivity.

Anderson described his bemusement when agency officials suggested he obtain signed releases from his former captors to expedite disclosure of the records he sought and protect his captors’ privacy. He shared his frustration when the records he received consisted almost entirely of newspaper articles and photos.

Although the content of the records ultimately disclosed to him was disappointing, Anderson’s protracted struggle illustrates, as the federal courts have observed, that “the value of information is partly a function of time.”

In the federal case recognizing this well-entrenched principle of records-access law, the U.S. Department of Justice postponed access to records requested under FOIA for up to 15 years.

The federal court decided that the delay was excessive, noting “Congress gave agencies 20 days, not years, to decide whether to comply with requests and notify the requesters.”

The court acknowledged that the Freedom of Information Act “doubtless poses practical difficulties for federal agencies,” but refused to “repeal it by a construction that vitiates any practical utility it may have.”

In other words, the court was unwilling to erode the principle of timely access to public records as an accommodation to the agency’s burden – real or imagined – and suggested that the agency present its concerns to Congress.

Kentucky’s public officials regularly complain about the three-day statutory deadline for responding to a request under the Open Records Act.

Lawmakers undoubtedly adopted a short turnaround for agency response in recognition of the fact that “the value of information is partly a function of time.”

The Kentucky Attorney General’s office in a recently issued decision admonished Louisville Metro Government for failing to explain the reasons for a 45-day delay in producing records responsive to a series of broadly worded requests relating to a complaint of sexual harassment, hostile work environment and retaliation filed by a Louisville Zoo employee.

The attorney general found that the facts on appeal supported the delay in producing the records beyond the three-day statutory deadline based on proof that just one of the multiple requests involved more than 23,000 records.

Delays in producing public records by state and local agencies in Kentucky may pale in comparison to delays at the federal level but are no less offensive to the principle that “the value of information is partly a function of time.”

Perhaps the solution to this and other problems lies in the statutory revision of the 40-year-old law.

Any such revision must be faithful to the law’s strongly worded statement of legislative policy favoring the public’s right to know but recognize the dramatic changes in the public-records landscape since the law’s enactment in 1976.The newly created Bluegrass Institute Center for Open Government proposes revising the commonwealth’s open records and meetings laws in a new report, “Shining the Light on Kentucky Sunshine Laws.” We identify deficiencies in the laws exposed by successive legal challenges, suggest where revision is needed and make recommendations for change.

Our goal is to preserve what is best in the open meetings and records laws but encourage lawmakers to close loopholes in the laws that are frequently exploited by state and local agencies at the expense of the public’s right to know. Doing so will ease the burden on public agencies, reduce the likelihood of legal challenges, preserve administrative and judicial resources and, above all, promote the clearly stated policy of open, transparent and accountable government.

Amye Bensenhaver is director of the Bluegrass Institute Center for Open Government at www.bipps.org. She wrote nearly 2,000 legal opinions regarding open records and meetings laws during a 25-year career as a Kentucky assistant attorney general. She can be reached at abensenhaver@freedomkentucky.com.