By Amye Bensenhaver
Kentucky Open Government Coalition

The Kentucky Open Government Coalition has once again compiled a list of the Top Ten Open Government Stories of the past year.

The central theme in 2023 was the continuing role of the courts in safeguarding rights guaranteed under Kentucky’s open government laws. For nearly every public agency abuse of the open records and open meetings laws, there was an equal and opposite judicial repudiation. Whether the abuse resulted from ignorance of or contempt for the laws, Kentucky’s courts remained the bulwark against public agency and public official affronts to Kentuckians’ statutorily guaranteed “right to be informed what their government is doing.”

Here are the Coalition’s Top Ten Open Government Stories of 2023.

1. Kentucky Attorney General’s engages in violation of the open records law over a period of three-and-a-half years

An open records dispute that commenced in July 2020 — with the submission of a request to the Office of the Kentucky Attorney General for records relating to the Kentucky Absentee Ballot Integrity Task Force by the “nonprofit, nonpartisan watchdog” American Oversight — culminated in a strongly worded Franklin Circuit Court opinion issued on July 14, 2022, holding that the OAG committed multiple open records violations.

Although the Attorney General did not appeal the Franklin Circuit Court’s opinion, he and his staff continued to obfuscate — delaying production of all responsive records and necessitating multiple trips back to court.

In July, 2023, the court authorized American Oversight “to conduct depositions of the designated representative(s) of OAG to address any factual disputes that remain unresolved regarding compliance with the prior Orders of this Court, including the scope of the OAG’s original and supplemental searches for the requested documents.”

“It appears,” the court observed, “that there continues to be a dispute as to whether the Attorney General has produced all documents and records that are required to be produced under the Open Records Act.”

The three-and-a-half year old case, we are advised, is moving toward settlement.

American Oversight v Office of the Attorney General is a reminder that the Office of the Attorney General enjoys no special privilege under Kentucky’s open government laws. Its resolution by settlement is lamentable only to the extent that critical issues it presents — in particular, the adequacy of the agency’s search for records — must await future opportunities for appellate review.

2. Louisville Metro’s track record on open records and open meetings compliance deteriorates

Secret police chief searches; nondisclosure agreements; closed collective bargaining negotiations with the Fraternal Order of Police; multiple adverse Attorney General’s open records decisions based on arbitrary delays in records production; and revelations that the backlog of open records requests has more than doubled in year one.

Extensive reporting on these affronts to transparency dashed any hope for measurable improvement in open records and open meetings compliance in the first year of Louisville Mayor Craig Greenberg’s administration.

Greenberg repeatedly claimed that he was constrained by the open records and meetings laws to conduct a secret police chief search and to engage in closed collective bargaining sessions with the Fraternal Order of Police. He lamented the open records backlog, but gave no indication he was willing to expand efforts beyond those that had thus far failed.

As the Kentucky Open Government Coalition observed, “The fault, Mayor Greenberg, is not in the law but in the choices you made.”

3. Kentucky Supreme Court will decide the scope of public access to law enforcement records in open investigations

In November 2022, the Court of Appeals ruled that “[G]eneral allegations of potential harm which would seem to apply in any criminal investigation’ are not sufficient to justify wholesale denial of an open records request for records relating to an open investigation.”

The underlying case, Courier Journal Inc. v Shively Police Department, resulted from the denial of a request for records relating to a high speed chase that ended in the deaths of a woman, her son, and a baby. In it, the court reaffirmed longstanding interpretation of the “law enforcement” exception to the open records law, KRS 61.878(1)(h), requiring proof of actual, concrete harm to an open investigation from premature disclosure of records compiled by a law enforcement agency to justify nondisclosure.

But the court went a step further.

The unanimous appellate panel expressly rejected broad application of KRS 17.150(2) “to restrict all access to information which law enforcement has which may pertain to a prospective law enforcement action,” observing that past opinions of the Attorney General and arguments advanced by law enforcement agencies “are not controlling, and we disagree with such an interpretation based on the statutory language.”

In January 2023, Shively asked the Kentucky Supreme Court to review the opinion of the Court of Appeals. On August 16, the Court granted Shively’s request. The parties subsequently briefed the case, and amicus briefs were filed — one in support of the Courier Journal’s position by retired Jefferson Circuit Court Judge John Potter and the Kentucky Open Government Coalition and another in support of the Shively Police Department by the Kentucky Attorney General.

Oral argument in the Supreme Court, and final resolution of this controversial issue, is anticipated in 2024.

4. League of Women Voters report exposes legislative schemes undermining participatory democracy

On November 29, the League of Women Voters of Kentucky published a study examining “Transparency and Citizen Participation in Kentucky’s Legislative Process” and asking the recurring question, “How Can They Do That?”

A League task force “reviewed provisions of the Kentucky Constitution, the House and Senate Rules, and the legislative record for all bills that became law during the seven 60-day legislative sessions: 1998, 2002, 2006, 2010, 2014, 2018, and 2022,” identifying the “procedures that make it increasingly difficult for citizens to be informed and active participants in legislation.”

Data analysis substantiated the threat to participatory democracy and legislative accountability in the Commonwealth of current General Assembly practices.

It is a threat that the Kentucky Open Government Coalition have condemned since the Coalition’s creation in 2019.

Adding insult to injury, in early December The Kentucky Lantern reported on a little noticed statute enacted in 2022 that eliminated the legislative process for pre-filing bills.

HB 10 “amended KRS 7.090 to remove the ability of interim joint committees to pre-file bills [and] repealed KRS 6.245, relating to pre-session filing of bills.”

This, coupled with the League’s findings and a 2021 law excluding the General Assembly and the Legislative Research Commission from the open records law, eliminated the last vestige of Kentucky lawmakers’ accountability to the constituents they serve.

In a Facebook post, the Kentucky Open Government Coalition highlighted an example of an ill-conceived pre-filed open records bill from 2019 that was wisely withdrawn as a result of stakeholder input.

No more.

“HB 10,” we concluded,” was clearly “intended to eliminate the public’s voice at a critical stage in the evolution of a bill.”

5. Court of Appeals resolves public discussion on private devices dispute in favor of public access but litigation continues

Open government advocates celebrated an October 27 opinion of the Kentucky Court of Appeals declaring that “[electronic] messages stored on personal cell phones are public records when such messages are prepared by or used by the members of the Commission and relate to or concern Commission business.”

The court’s opinion in Kentucky Open Government Coalition v Kentucky Department of Fish and Wildlife Resources Commission turned on the expansive statutory definition of the terms “public record” and “public agency,” and on its rejection of the Commission’s privacy and undue burden arguments. But at a basic policy level, the opinion emphasized:

“To hold otherwise would certainly defeat the underlying purpose of the Open Records Act as public officials could easily evade disclosure of public records by simply utilizing their personal cell phones.”

To “assuage any concerns the Kentucky Open Records Act requires public agencies to turn over private cell phones” or mandates wholesale disclosure of “all public records generated on private cell phones or private email accounts,” the court emphasized that the opinion “merely holds that ‘text messages [or emails] related to Commission business and stored on personal cell phones [or personal email accounts] of its members are public records generally subject to disclosure under the Open Records Act absent an applicable exception.’”

The Coalition’s celebration was short-lived.

Despite the court’s assurances — and the logic of its analysis — the Commission petitioned the Supreme Court for discretionary review of the opinion of the Court of Appeals on November 22. The Court has not yet ruled on the Commission’s petition.

In the meantime, public officials across the Commonwealth continue to exploit the resulting legal chaos.

6. The 490 Project settles a first-of-its-kind open records lawsuit against Louisville Metro Police Department

On April 19, a Louisville-based community organization focusing on police accountability — The 490 Project — announced the settlement of itsopen records lawsuit against Louisville Metro Police Department, a persistent open records offender. LMPD agreed to release 400 citizen complaints against LMPD officers — with limited redactions — within 14 days and to pay $15,256 in attorneys’ fees and costs to The 490 Project.

In October 2022, The 490 Project filed suit against LMPD for refusing to comply with its statutory duty to take final action on open records requests within five business days — either by disclosing nonexempt public records or identifying the legal basis for nondisclosure.

“But,” the Kentucky Open Government Coalition emphasized in an op-ed published shortly after the lawsuit was filed, “in a first-of-its-kind claim, the group alleged that LMPD subverted the intent of the open records law through the premature and illegal destruction of public records — in this case, complaints leveled against police officer that LMPD designates ‘informal’ — in contravention of state law governing the minimum retention of those records.

“This critical public records abuse has largely evaded public notice but has long been employed by public agencies as a means of evading public accountability.”

“There’s nothing sexy or cool about record retention policies,” said 490 Project organizer Cara Tobe about the group’s lawsuit, “but [they are] really important.”

The settlement was “a clear win for judicial economy[,] a clear win for taxpayers[,] and a clear and long overdue win for police accountability.”

Sadly, LMPD and Louisville Metro continue to engage in illegal conduct that thwarts access to public records to the present.

7. Oldham County Circuit Court instructs the Attorney General on the importance of legal precedent

On June 13, the Oldham County Circuit Court handed Attorney General Daniel Cameron a major defeat, reversing Cameron’s open meetings decision, 22-OMD-187, and ruling that the Oldham County Ethics Commission violated the open meetings law when it conducted a closed session that did not conform to statutory requirements designed to “maximize notice of public meetings and actions.”

In J. Albert Harrison v. Oldham County Ethics Commission, Judge Jerry Crosby II reversed a September 2022 Cameron open meetings decision in which the the Attorney General determined that although the county Ethics Commission failed to comply with statutory requirements for conducting a closed session, the Commission’s noncompliance did not violate the open meetings law.

While the court’s insistence that “an administrative agency [like the Attorney General acting under authority of KRS 61.880(2)] either must conform with its own precedents or explain its departure from them” is the single most most important takeaway in the Harrison opinion, the court also reaffirmed longstanding interpretation of the open meetings law.

In reversing the Attorney General’s decision, and voiding the action illegally taken by the Commission in closed session, Judge Crosby focused on the Attorney General’s unexplained departure from an interpretation of KRS 61.815(1) and (2) that “goes back forty plus years with no overt repudiation by the Courts or the legislature as to a different interpretation.”

Cameron’s interpretation of the statute, Judge Crosby determined, “would eviscerate most of the Open Meetings Act’s operative provisions.”

In an op-ed published shortly after the Oldham Circuit Court’s opinion was issued, the Kentucky Open Government Coalition urged Cameron’s successor to “resist the temptation to elevate his policy preference over precedent.”

“Perhaps,” we noted, “Cameron himself will learn about the importance of precedent from the defeat recently handed to him by the Oldham Circuit Count. We have not fought the battle to shine a light on state and local government for nearly 50 years only to have Cameron, or his successor, arbitrarily shut it off.”

The case has been appealed to the Kentucky Court of Appeals.

8. Louisville Metro Police Department’s Records Management Audit reveals poor oversight and faulty records management but no illegal acts

Following a series of delays, Louisville Metro released the Records Management Audit — ordered by the Louisville Metro Council on the heels of the lawsuit filed by a nonprofit police accountability group, The 490 Project — in late September.

The unprecedented records management audit of Louisville Metro Police Department — conducted over several months by Louisville Metro’s Office of Internal Audit — exposed serious deficiencies in the January 1, 2018 through December 19, 2022 review period, including:

As a consequence, public records were misdirected, misfiled, or missing altogether. The auditors found no illegalities — a questionable finding in light of evidence of unauthorized records concealment and premature destruction of public records.

Despite the seriousness of these findings, the OIA issued a relatively mild “internal control assessment rating of ‘Needs Improvement,’ indicating that the identified issues impact on operations is likely contained.” The rating was based on a “thorough understanding of the process(es) for LMPD’s records retention and management… obtained through interviews with key personnel and examination of supporting documentation.”

In an op-ed issued not long after the audit was released, the Kentucky Open Government Coalition questioned the existence of concrete steps for “pursuing corrective action on each of OIA’s nine recommendations — most with a target implementation date of August 1, 2024.” We reminded Louisville Metro and LMPD that “The 490 Project (and the Kentucky Open Government Coalition) will be tracking their progress.”

“We cannot permit the corrective actions to which LMPD and Louisville Metro have committed to languish in indifference and obscurity.

“Nor can we permit The 490 Project’s victory in its open records/records management litigation against LMPD — and the Metro Council’s commitment to securing reform in LMPD’s open records/records management programs — to be forgotten.

“The real work now begins.”

9. The courts vindicate fundamental open records principles in additional legal actions

Two other open records cases are worthy of note in the Top Ten Open Government Stories of 2023.

In an opinion issued on August 22, the Jefferson Circuit Court dismissed Louisville Metro’s open records lawsuit against open records requester Lawrence Trageser.

In Louisville County Metro Government v Lawrence Trageser, Judge Eric Haner determined:

“Louisville Metro’s position [that the Attorney General is required to ‘moot’ an appeal if all records are provided after the appeal is filed] is unreasonable because it would allow any public agency to extend the five-day requirement under KRS 61.880(1) unilaterally by forcing a requester to file a complaint with the Attorney General before responding to his request for records.”

Although correctly affirmed Trageser’s position that his appeal was not “moot,” and that the Attorney General properly found that Louisville violated the open records law, it rejected Trageser’s request for penalties and costs, including reasonable attorney’s fees.

In a blog post, the Kentucky Open Government Coalition questioned this decision:

“The court’s mixed messages may disincentivizes the cynical Louisville Metro (read “public agencies, in general) practice of ignoring statutory deadlines for responding to open records request until an open records appeal is filed. But it simultaneously incentivizes the same cynical practice by imposing a financial burden on Trageser to defend the lawsuit initiated against him — which he won.

“It’s no big deal for Louisville Metro to squander taxpayer dollars to sue private citizens to defend its ‘right’ to violate the open records law. Louisville Metro has deep financial pockets. But for Trageser — who prevailed on all but the issue of penalties, costs, and attorney’s fees — the victory came at a cost he should not be forced to bear.”

Neither Louisville Metro nor Trageser appealed Judge Haner’s ruling.

In an unrelated — but equally preposterous — case, the Kentucky State University Foundation continued to squander public resources in defending its claim that its records are not subject to public scrutiny. It did so by appealing a Franklin Circuit Court opinion that reached the opposite conclusion to the Kentucky Court of Appeals.

A 1992 Kentucky Supreme Court opinion declaring that KSU’s Foundation is a public agency for open records purposes, a 2021 Attorney General’s open records decision affirming the 1992 opinion, and the challenged 2022 Franklin Circuit Court opinion — reaffirming both — repudiate the KSU Foundation’s position.

In a blog posted soon after the KSU Foundation appealed the Kentucky Attorney General’s decision to the Franklin Circuit Court, the Kentucky Open Government Coalition commented:

“Despite recent revelations concerning financial mismanagement at KSU, the admitted role KSU officials played in approving Foundation disbursements, and singularly damning optics, the Foundation will expend public funds to evade accountability.

“As KSU seeks a taxpayer bailout to rescue it from its current financial crisis, the tenuous claims advanced by its Foundation in support of secrecy must yield to the strongly substantiated public interest in its Foundation records requested by the State Journal.

“It was, after all, secrecy that got Kentucky State University in trouble to begin with.”

The Court of Appeals case has been briefed and oral argument is scheduled in early 2024.

10. The departing Attorney General leaves a dark open government legacy

Recently surfaced, and as yet unrefuted, claims that departing Attorney General Daniel Cameron abdicated his statutory duty to distribute open records and open meetings materials to some designated public officials — for mandatory training purposes — may represent the final affront to open government Cameron perpetrated in his four year term of office.

But in a May, 2023, post examining what fate might await Kentucky’s open government laws under a Cameron gubernatorial administration, the Coalition enumerated his chief offenses.

“Whether it was outrages to open government committed in the name of ‘strict’ statutory construction or reliance on aberrant legal authority, Daniel Cameron is to thank for, among other things:

“It has been a slow and painful ‘near-death by a thousand cuts’ in Cameron’s open records and meetings dispute ‘resolution’ — resolution that for decades proceeded from clear statements of legislative policy and judicial interpretation favoring public access.” Under Cameron, dispute resolution was often driven by personal preference rather than governing legal policy and precedent.

Kentucky’s open government laws may recover, but only through reasoned enforcement of longstanding interpretation, continued judicial review consistent with that interpretation, and a much-needed legislative “hands-off” approach. When that “hands-off” legislative approach is ignored — as it inevitably will be by lawmakers who cannot resist the temptation to leave their anti-open government mark — the laws’ salvation lies in united and vociferous bipartisan opposition to any proposal to amend the existing open records or open meetings laws that divests Kentuckians of their right to be informed what their government is doing.