Editor’s Note: The change proposed by Bluegrass Institute and Amye Bensenhaver in this speech to the State Government Bar Association, have not been presented to nor discussed with the Kentucky Press Association. KPA has not taken a position on any of these changes at present.
By Al Cross, Director, Institute for Rural Journalism and Community Issues, School of Journalism and Media, University of Kentucky
A conservative, libertarian policy center has teamed up with a widely recognized expert on Kentucky’s open-government laws to propose several major changes to the law, which haven’t been greatly revised in more than two decades. The Kentucky Press Association has been wary of opening up the laws for fear the General Assembly would leave them weaker, not stronger.
Amye Bensenhaver, who for 25 years was the leading official interpreter of the open-records and open-meetings laws, presented her recommendations to the State Government Bar Association in Frankfort Tuesday. She is director of the new Center for Open Government created by the Bluegrass Institute for Public Policy Solutions, which plans to post the proposals online Monday.
The proposals include:
- Making the state court system subject to the Open Records Act, reversing a state Supreme Court decision, which could take a constitutional amendment.
- Strengthening the power of the attorney general’s office, which makes initial decisions in open-government cases, to get confidential information from public agencies that have denied open-records requests.
- Making texts, emails and other electronic documents created on public officials’ private devices open records when they deal with public business.
Bensenhaver’s recommendations fell into three categories: clarification of the laws, reconciliation of laws that may be in conflict, and modernization to keep up with recent technologies. In describing them, she took obvious pleasure in giving her personal opinions, something from which she was restrained as an assistant attorney general.
Clarification: The Supreme Court, citing the constitutional principle of separation of powers, ruled in 1978 that the General Assembly couldn’t apply the 1976 Open Records Act to the state court system.
The system, overseen by the court, has generally observed the law in most cases while making clear that its compliance is voluntary. “They’re not even accountable for monies they receive out of the General Fund,” Bensenhaver said. “There may be some core functions” that need to be exempt, but not the spending of public dollars, she said.
When a public agency denies an open-records request, the requester can make a no-cost appeal to the attorney general. The law says the attorney general can request copies of the records to help decide the issue, but must not disclose them. The law does not say explicitly that the agency must provide the records, but that is its clear intent, Bensenhaver said.
The University of Kentucky has refused several times to give the attorney general records for review, saying other laws allow it to do so. Bensenhaver said the law should be rewritten to let the attorney general “declare that an agency’s refusal to comply with his request for additional documentation constitutes agency failure to meet its statutory burden of proof and to find against the recalcitrant agency on that basis alone.”
When it comes to the Open Meetings Act, one problem is “serial meetings” of less than a quorum of members who discuss public business and collectively amount to a quorum of an agency board. The law says any such series of meetings “held for the purpose of avoiding” openness is subject to the law, but allows meetings “to educate the members on specific issues. Typically, members say they didn’t intend to circumvent the law or say such meetings were only educational, so the law is “kind of limp,” Bensenhaver said.
She noted that UK trustees held a series of such meetings on the university budget. She asked, “What could be more interesting to the public, as tuition rates rise?” and recommended that the General Assembly should redraft the law “to ensure that the purpose supporting its enactment is not defeated.”
One of the vaguer open-government laws is the one that applies the Open Records Act to any “body” that gets from state or local government at least 25 percent of the money that it spends in Kentucky. In 2012, the General Assembly said that rule applied to “any fiscal year” but exempted money paid for goods or services obtained through public, competitive bidding.
“What they did in 2012 was quite unfortunate,” Bensenhaver told the state-government lawyers. “It allows an awful lot of big fish to get through the net.” She made no specific recommendation for a change, but said legislators need to decide the intent of the original law “and develop language that achieves that goal” and allows the attorney general to get information to determine whether an entity has reached the 25 percent threshold.
Jim Waters, president of the Bluegrass Institute, said he has had discussions with legislators about the 25 percent law, which has been the topic of unsuccessful legislation in the last two sessions, and the extension of the records law to the court system.
Reconciliation: There are gaps, overlaps and conflicts between the Open Records Act and the Open Meetings Act. Bensenhaver said the General Assembly needs to reconcile them.
For example, a public agency board may discuss a proposed budget in an open meeting but refuse to release copies of the budget on grounds that it is a preliminary document. (City councils can’t do that, under a 2010 records decision obtained by KPA for the Midway Messenger.) Another issue is employee performance evaluations, which have some legal protection but must be discussed in open session.
Bensenhaver said the legislature should reconcile the conflicts “in a manner that promotes responsible agency discussion and meaningful public scrutiny,” with an open-meetings exception for discussion of exempt records. “Where the public’s right to know outweighs any actual need for confidentiality, the laws should permit access to records and discussion of records,” she said.
Bensenhaver also called for repeal of “a very dangerous provision” of the meetings law, which arguably exempts most agencies from the requirements for going into a closed session. She said the courts have ignored the conflicting laws, and the attorney general’s office has construed them “in a manner that avoids consequence,” but the laws “could be used to justify unannounced closed sessions and final action in closed session.”
Also, Bensenhaver said the open-meetings law needs to place the burden of proof in an appeal on the public agency, just as the open-records law does. “The agency has a monopoly on the facts but is not required to sustain its action by proof (such as sworn affidavits of members),” she wrote.
Modernization: Aside from adding references to email for correspondence, Skype for teleconferences and smartphones and scanners to “reproduce records onsite,” Bensenhaver identified two major areas that need better definition to keep up with modern technology that has caused agencies to create many more records.
She said the legislature needs to better define “unreasonable burden” on an agency as an excuse to deny a records request. She said the 1976 General Assembly “couldn’t envision requests that would involve millions of records.”
Bensenhaver called for reversal of a “poorly reasoned” open-records decision by Jack Conway on his last day as attorney general in 2015, exempting records created by private devices such as smartphones. “That decision would not withstand judicial scrutiny for one minute,” she said. “You’re essentially saying, do all your business on private devices, and don’t even discuss it at a public meeting.”
Bensenhaver wrote, “These records are public records . . . despite Kentucky officials’ reluctance to acknowledge their status as such. This reluctance poses the gravest threat to open meetings, open records and government accountability generally.”
Finally, Bensenhaver said penalties for violating open-government laws need to be “enhanced,” by making an agency pay the requester’s legal fees and court costs if the agency loses at the attorney general’s office and again in circuit court. “Such a revision would discourage agencies from initiating bad-faith appeals and encourage citizens to pursue their rights under the open meetings and open records laws with less fear of incurring financial hardship should the dispute go to court,” she wrote.
Bensenhaver was asked whether opening up the laws could lead to the attorney general’s office losing its quasi-judicial powers, since Democratic Attorney General Andy Beshear is at odds with Republican Gov. Matt Bevin and Republicans also control the House and Senate.
She said the best solution would be to keep such reviews out of any political office, and noted that some states have created independent authorities to make initial rulings on open-government appeals.
The newest of those is the Iowa Public Information Board, which has nine members appointed by the governor and confirmed by the Senate. No more than three members represent the news media, and no more than three represent local governments. The members serve staggered four-year terms, and are balanced by party and gender.
Bensenhaver resigned from the attorney general’s office last summer, saying she was put “under considerable duress” by Beshear and his lieutenants, “the last straw” being a reprimand for talking to a journalist writing a story on the 40th anniversary of the records law. She said her difficulties reflected an increased politicization of the AG’s open-government role under Beshear and Conway.