Rubber stamping public agencies’ denials of records requests

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The brutal murder of a nine year old girl, Amy Dye, at the hands of her adopted brother in 2011 prompted a local newspaper, The Todd County Standard, to undertake an investigation into the efforts of the Cabinet for Health and Family Services to address multiple reports from school officials and teachers about the child’s welfare.

Using the open records law, the newspaper’s editor, Ryan Craig, asked the Cabinet for records in its custody relating to the “discharge of its duties concerning. . .[the] deceased nine-year-old child.” Ignoring the three-day statutory deadline for agency response, the Cabinet seriously compounded this procedural violation by advising the newspaper that it “did not possess any records responsive to the request.” The Todd County Standard subsequently appealed the Cabinet’s denial of Mr. Craig’s request to the Attorney General.

On appeal, the Cabinet continued to insist that it possessed no responsive records. Because the Cabinet did not address the newspaper’s assertion that the child “had previously been under the Cabinet’s care,” the Attorney General’s staff exercised its authority under KRS 61.880(2)(c) to “request additional documentation from the agency for substantiation” of its position that it possessed no responsive records relating to Amy Dye.

The Cabinet flatly refused to respond to the Attorney General’s request for additional documentation.  In 11-ORD-074,  the attorney general determined that the Cabinet violated the open records law both procedurally, by failing to respond to Mr. Craig’s request within three business days, and substantively, by failing to prove that a denial of the request based on the nonexistence of responsive records was justified.

Later events confirmed the Cabinet’s duplicity in denying the existence of responsive records, its flagrant violation of the open records law, and ultimately its failure to intervene to protect Amy Dye in the face of numerous reports of abuse and neglect from school officials and others. The Cabinet prioritized the protection of its own image over the need to openly address this tragedy while demonstrating an utter disregard for the public’s right to know.

On May 15, the Bluegrass Institute commended Attorney General AndyBeshear for his decision to intervene in a number of open records cases pending in circuit courts across the state to defend his staff’s right to employ KRS 61.880(2)(c) to prove or disprove the truthfulness of the agency’s denials of records requests. As we observed, “Without this essential tool, the attorney general cannot conduct a meaningful review of the issues presented to him for resolution, which are part of the statutory duties of his office. He becomes a mere “rubber stamp” for agencies disinclined to expose their conduct to the light of public scrutiny.”

We were therefore dismayed to see that his staff failed to employ KRS 61.880(2)(c) in a number of recent appeals, essentially “rubber stamping” agencies’ denials based on the nonexistence of responsive records notwithstanding circumstances that called the agencies’ denials into question.

In an appeal involving the Boyle County Sheriff, 17-ORD-088, the requester asked for “the record of any phone calls made from the Sheriff’s Office to any division of the KSP” and any calls from KSP to the sheriff’s office from July 14 to September 1, 2016. The sheriff denied that he “ke[pt], collect[ed], or maintain[ed] any phone records” and referred the requester to the local 911 center.

Note, the sheriff did not deny that the calls took place. Nor did he indicate why official calls between two law enforcement agencies, if indeed the calls took place, would be routed through a dedicated 911 telephone line. Finally, he did not state that his office has no phone lines of its own for the conduct of routine and nonemergency agency business.

These are the lines of inquiry the AG’s staff should have pursued through requests for additional documentation to substantiate the sheriff’s denial of the request under KRS 61.880(2)(c). Additionally, the AG’s staff should have asked the sheriff if he was aware of his legal obligation to retain phone logs and billing records under the General Schedule for Local Government, at series L4969 “Telephone record/log” (one year), or series L5011 “Accounts Payable” (three years).

It is unfortunate that the Office of the Attorney General appreciates the value of KRS 61.880(2)(c) enough to defend it in the courts but not enough to actually use it in the discharge of the office’s statutorily assigned duties. Our question for him is, “Why bother?”

Amye Bensenhaver, one of the foremost experts on Kentucky’s nationally recognized open records and open meetings laws, is director of the Bluegrass Institute’s Center for Open Government.