'The Post': A reminder of the importance of the courts in defending the public's right to know

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A recent article in the Corpus Christi Caller Times heralds the release of “The Post”--Steven Spielberg’s dramatization of the internal and external battles that accompanied the Washington Post’s 1971 publication of the Pentagon Papers--and reminds us of the importance of the courts in protecting the public’s right to know at the federal, state and local level.

The article focuses on the challenge now confronting Texans in exercising their rights under the state’s Public Information Law—the Texas equivalent of Kentucky’s Open Records Law-- following a major setback in the courts and “a mighty but ill-fated [legislative] effort to put some of the teeth back into Texas’ open government laws.”

That case, The Boeing Company v. Ken Paxton, involved a public information request for, among other things, the lease between the Boeing Company and the Port Authority of San Antonio. Boeing resisted disclosure of portions of lease containing what it deemed proprietary information, unsuccessfully litigating the issue through the Texas Attorney General’s Office, a trial court, and the Texas Court of Appeals. However, Boeing prevailed in the Texas Supreme Court.

The Court’s opinion, the Caller Times observes, “opened up a loophole that pretty much allows businesses to declare almost anything to be a trade secret, even how much a city pays an entertainer for singing at a city celebration.” And, as noted, attempts to legislatively close the loophole have not yet succeeded.

Anyone who needs a reminder about the importance of the public’s right to know should take a moment to watch Texas Representative Terry Canales impassioned speech on the House floor indicting those who blocked efforts to reinvigorate the Texas Public Information Law. “Some say ignorance is bliss,” he declares, “I say information is power.” Take a moment to watch.

Kentucky’s Open Records Law contains a narrow exception for “records confidentially disclosed to an agency or required by an agency to be disclosed to it, generally recognized as confidential or proprietary, which if openly disclosed would permit an unfair commercial advantage to competitors of the entity that disclosed the records.” The corresponding exception in Texas’s law is much broader.

It is highly unlikely that the Kentucky attorney general, a Kentucky circuit court, the Kentucky Court of Appeals, or the Kentucky Supreme Court would affirm Boeing’s position under Kentucky law if the same issue were presented here. This is primarily because a lease is not a record “confidentially disclosed to an agency or required by an agency to be disclosed to it.” Kentucky’s exceptions must be “strictly construed,” and a lease does not qualify for protection under the first part of the exception.

In this, Kentucky is fortunate. Our attorney general and courts must interpret the narrowly worded exceptions to the Open Records Law strictly and in a manner consistent with the legislative presumption favoring openness. And they only rarely disappoint.

In the most recent example of judicial protection of the public’s right to know, the Franklin Circuit ordered the Kentucky State Police to pay $24,000 in attorney’s fees, costs and penalties in a case involving a mother’s protracted battle to obtain records relating to the disappearance of her daughter in 1995. On January 5, the court sanctioned KSP because it “lacked plausible justification for withholding the records” and “did so in conscious disregard of [the requester’s] rights.”

Kentuckians owe a tremendous debt to the framers of our Open Records Law, the legislators who enacted and have preserved it, and those who have championed it inside and outside the courtroom through its forty plus year history. But administrative and judicial protection of the Open Records Law is essential to a vigorous Open Records Law and an informed people. Like Texas Representative Canales, the Center for Open Government believes that information is, in fact, power.

-Amye Bensenhaver is director of the Bluegrass Institute Center for Open Government.