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The State of Transparency in the Commonwealth of Kentucky

By Jon L. Fleischaker, Michael P. Abate, and Cassie Chambers Armstrong

Transparency is under attack in Kentucky. Historically, Kentucky has had one of most expansive Open Records Acts in the country. As a result, the press—and the public—have enjoyed broad access to government records. Yet Republican lawmakers—including the current Governor's administration—are seeking to curtail that access, using both legislative and judicial channels to achieve their goal.

In particular, the administration has taken the view that the public does not have the right to access the disciplinary records of public employees—particularly in cases where it has argued it was unable to substantiate the alleged misconduct. However, in the recent past, records the government was forced to disclose under the law have shown numerous instances where the agency's finding of "unsubstantiated" was not warranted by the actual facts. Nevertheless, in current cases the government has argued that releasing the records would be an unwarranted invasion of the accused employee's privacy. Currently, there are several pending lawsuits against various state agencies and universities that involve this issue.

At least three of these pending cases involve disciplinary records specifically related to sexual harassment or sexual assault. In Commonwealth of Kentucky, Cabinet for Health and Family Services, v. the Courier-Journal Inc., Franklin Circuit Court, No. 18-CI-1036, for example, the government refused to disclose the name of an accused harasser, whose actions allegedly caused a senior-level Cabinet official to resign.

The government's sudden interest in shielding employee disciplinary records from public view may explain the introduction of SB 14, which threatens to eviscerate the Open Records Act. Kentucky State Senator Danny Carroll pre-filed SB 14 just before the start of the 2019 Kentucky legislative session, stating that the bill was intended to shield the personal information of public employees. In reality, though, the bill would close to the public many records about how government agencies are performing their primary functions, and prohibit release of any information about misuse or abuse of government power.

About SB 14

SB 14 applies largely to public employees entrusted with the power to sanction, punish, or investigate private citizens—including police officers, judges, and child abuse investigators (among others). The exempted workers perform some of the most sensitive and public-facing functions of government, and records related to these employees are among the most important for the public to monitor.

SB 14 would prohibit the public from accessing a broad swath of information about these employees, including records related to financial information, employee performance, and employee discipline. The latter two categories of information are the most troubling, as they would allow agencies to withhold the very kind of information that has produced important systemic reforms—for example, information about misconduct by police officers or whether a Cabinet for Health and Family Services employee accused of turning a blind eye to child abuse had ever received a poor evaluation at work (both actual examples of information previously obtained under the Open Records Act).

Other categories of exempt information are so vaguely defined that it is impossible to identify exactly what types of information would fall into them, or how a court would choose to define them. For example, SB 14 prohibits disclosure of "financial information" but does not elaborate on exactly what type of information falls into this broad category. Would that cover information about a public employee's salary or accusations that senior officials were paid well above the typical range for their position (another issue that was disclosed multiple times in recent years thanks to the Open Records law)?

In addition to changing the types and categories of records that the public can access, SB 14 also dramatically alters the current enforcement mechanisms of the Open Records Act. For one, the bill imposes personal liability on state officials who disclose information protected by SB 14, making them liable for up to $500 per violation of the law—a provision that appears designed to encourage records custodians to err on the side of redacting and withholding information.

SB 14 also requires the judge in any case brought under the law to determine why someone seeking records is doing so, and whether he is doing so for "an improper purpose." If a judge determines that an improper purpose exists, the judge can deny the requester fees to which he would otherwise be entitled and must impose on the requester the costs and attorney's fees the government incurred in defending against the request. The bill does not elaborate on what might be considered "an improper purpose" other than to note that actions intended to violate the law or be "frivolous" would fall into this category. This expansive definition would give judges substantial leeway in deciding whether a requestor's motives were worthy or not. Similarly, this provision would force every-day citizens and media organizations to pick up the government's legal bills merely for requesting access to public records.

It is also unclear whether SB 14 is meant to change the process of Attorney General review. In Kentucky, those aggrieved by an agency's decision to withhold records have the option to request the Attorney General issue an opinion regarding whether the government is required to disclose those records. SB 14 may be designed to curtail this process and force those seeking records to automatically turn to the courts for redress—a process that is more expensive and time-consuming than Attorney General review. Such an outcome would be in line with the government's behavior in other cases, where numerous agencies have refused to hand over records to the Attorney General's office for the review process. These agencies are—for the first time in the history of the Open Records Act—advancing the argument that they have a choice regarding whether to comply with the Attorney General review process.

The bottom line is that SB 14 is an attempt to eviscerate the Open Records Law as an effective tool for the public to monitor the actions and activities of large and important parts of state and local government. It effectively would reverse over 40 years of court rulings that have allowed the public to see what its government agencies are actually doing in its name.

Fighting for Transparency

After SB 14 was introduced, the Kentucky Press Association quickly and publicly condemned it. Media outlets across the state began to run stories explaining what the bill was, and how it would eviscerate the protections provided by the Open Records Act. Within a few days, Senator Carroll withdrew SB 14, citing the concerns raised by the Kentucky Press Association as the reason for his decision. See Kentucky lawmaker to withdraw bill that would gut open records law, Louisville Courier Journal, Jan. 9, 2019.

Advocates for transparency have experienced other wins lately, particularly in the courts. Lower courts have ordered the government to release records of unsubstantiated employee misconduct in full—records that the government sought to shield from public view. In Commonwealth of Kentucky, Finance and Administration Cabinet v. Kentucky Public Radio, Franklin Circuit Court, No. 18-CI-335, for example, the court held that the government acted improperly when it redacted the names of employees accused of sexual harassment, witnesses to alleged events, and other information from public records. The court is considering fee motions filed in the case, and at least one of the government agencies involved has announced that it will appeal after that final issue is resolved.

The fight to protect the Open Records Act in Kentucky is far from over. Media advocates must continue to challenge the administration's refusal to release public records in the courts. And although Senator Carroll said that he would "take a step back" from SB 14, he has not foreclosed the possibility of reintroducing the legislation in the future. Senator Carroll plans to meet with representatives of the Kentucky Press Association to further discuss the bill, but there is no guarantee that those discussions will lead to agreement. Given the seemingly concerted effort by those in government to limit the Open Records Act, it will be important for the press, media lawyers, and other interested parties to remain vigilant.

Jon L. Fleischaker, Michael P. Abate, and Cassie Chambers Armstrong are attorneys with Kaplan Johnson Abate & Bird LLP in Louisville KY.

 
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