State Journal files counterclaim against Finance Cabinet in Franklin Circuit Court action

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On January 26, The State Journal filed a motion for leave of court to assert a counterclaim against the Finance and Administration Cabinet in a case in Franklin Circuit Court arising from the Cabinet’s lawsuit against a reporter for the newspaper. The lawsuit seeks to reverse a favorable ruling by the Attorney General obtained by the newspaper in its open meetings dispute with the Cabinet.

Center for Open Government Director Amye Bensenhaver represents The State Journal in the action.

The case stems from State Journal reporter Alfred Miller’s attempts to attend those portions of  meetings conducted by the Capital Plaza Redevelopment Project Built-to-Suit Selection Committee that state law requires to be conducted in open session. The committee was charged with making recommendations on bids submitted by contractors under state procurement laws unique to the built-to-suit process.

As he pursued the story, Miller received repeated assurances that “upon the award of any public solicitation, the Finance and Administration Cabinet has always maintained a longstanding practice of releasing almost all records related to the award, inclusive of all bids, composition of evaluation team, bid scoring, and the final terms agreed to.”

The committee completed its duties and a contract was awarded on December 19, 2017.On December 21, Miller submitted an open records request to the Cabinet for copies of the responsive bids. He received no response to his request. The Open Records Law requires public agencies to notify a requester, in writing and within three working days, whether his request will be honored and to make the records available on the third day if they are not “in active use, in storage, or not otherwise available.” Miller received nothing.

On January 9, 2018, Miller contacted the Cabinet’s records custodian to remind her that the agency’s response was long overdue and to ascertain the status of his request. She responded that the Cabinet is “still in the process of gathering all the requested documents,” and that she “anticipate[d] to be able to respond to [Miller’s] request on or before February 1, 2018.” Miller immediately asked that she “provide a reason for the delay.” Later that day, the Cabinet’s Public Information Officer notified Miller that “we have staff gathering the information, which will need to be reviewed as well.”

Quoting KRS 61.872(5) -- which deals with requests for public records that are “in active use, in storage or not otherwise available,” and requires public agencies in such cases to provide “a detailed explanation of the cause” for further delay --  Miller again asked for “more detail on the cause of the delay.” Again, he received no response of any kind.

Based on these events, The State Journal has requested leave to amend its response to the Cabinet’s petition for review of the attorney general’s open meetings decision favoring the newspaper in order to assert a counterclaim against the Cabinet for subverting the intent of the Open Records Act short of denial of inspection. It is The State Journal’s position that the Cabinet actions  subvert the intent of the Act by impermissibly and unjustifiably delaying Miller access to the four responsive bids for over a month beyond the three day statutory deadline.

We are asking the court to order the immediate disclosure of all responsive bids and to find that the Cabinet willfully withheld the requested bids.

It is our firm belief that the ends of justice, as well as judicial economy, support our request.