Case Study: Kentucky’s Open Government Enforcement
An NFOIC review of decisions by the Kentucky Attorney General for two years (2016 and 2017) reveals a high prevalence of noncompliance by state government: 49 percent of 2016 open records decisions exhibited a violation of the records act, while 48 percent of 2017 open records decisions did.
Amye Bensenhaver, co-founder of the Kentucky Coalition for Open Government, and former assistant attorney general of Kentucky for 25 years, specializing in open records disputes, predicted that the rate of noncompliance would rise in the coming years.
Sixty of the 511 records decisions (about 12 percent) included a violation for improperly stating an exemption.
Jon Fleischaker, a Kentucky attorney who penned Kentucky’s original open records law, stated the problem is public agencies often cite improper exemptions and ignore settled law in the process. “You have public officials that are reaching,” Fleischaker said. “And if they have a lawyer and they go to the books they’ll figure out that there are a lot of cases that say ‘No, they can’t do that. This has already been decided.’ ”
Seventy-four of 511 (about 17 percent) of the records decisions exhibited an agency improperly withholding records. “There are (officials) who misinterpret, people who don’t understand… what their obligations are. I don’t think (withholding records) rises, 90 percent of the time, to anything that’s a knowing effort to avoid it,” Fleischaker said. 2020 National Freedom of Information Coalition www.nfoic.org 20 (Figure 3) History of open government decisions : Kentucky Attorney General Open Government decision counts since 1993. The party of the governor at the time is shown either in red (Republican) or blue (Democrat).
There was a decline in the overall number of decisions during the administration of Gov. Steve Beshear (D) from 2007 to 2015, and an increase in disputes under just defeated Gov. Matt Bevin (R), in 2015, which has since fallen. Among the most common types of violations are those based on time, like failing to respond in a timely manner to a request or allow for the inspection of records. Eighty-four of the 511 records decisions (about 16 percent) exhibited a form of time-based violation.
These violations are treated as procedural as opposed to substantive violations. “I don’t consider, and I know Fleischaker doesn’t consider, a procedural violation a petty violation. It’s still a violation,” Bensenhaver said. 2020 National Freedom of Information Coalition www.nfoic.org 21 (Figure 4) Common violation types compared: These two charts illustrate the relative frequency with which improper withholding and time violations are found compared to decisions finding other types of violations and those in which no violation was found, reflecting combined yearly totals for 2016 and 2017.
Playing with public money One other structural component of noncompliance in Kentucky is that civil penalties fall on the agency, not the individual. Because Kentucky will ultimately pay the bill, the agency has the resources — in the form of state attorneys — to devote toward litigation and the appellate process, allowing the state to appeal as many times as allowable to avoid disclosing the record. Unlike requesters, however, the public agency usually does not incur hourly attorneys fees. “They’re using their time (on the public records dispute) instead of someplace else … but it’s easy to hide that expense,” Fleischaker said. “It goes toward a different line item: Personnel. And nobody goes back to look at that stuff.”
Jason Riley, a Kentucky journalist, stated that some state agencies feel they are exempt from the law since penalties aren’t rigorously enforced against them. “Some agencies know how to work the system in their favor so as to not have to provide records they don’t want to provide unless a citizen or media outlet is willing to pay a lot of money and wait,” Riley said. 2020 National Freedom of Information Coalition www.nfoic.org 22 According to Bensenhaver, no other state agency is as notorious for violating the state’s open records act than Kentucky State Police (KSP). For all decisions where KSP was a party between 2016 and 2017, the Attorney General found them in violation of the Kentucky Open Records Act on 19 occasions, or 59 percent of the time.
Riley and WDRB, a Kentucky-based news service, found KSP was the most frequent violator of the Kentucky Open Records Act compared to any other state agency over the last five years after conducting a review of Attorney General decisions.
According to Bensenhaver, Riley, and Fleischaker, the Kentucky State Police also frequently appeal those decisions where the Attorney General finds a violation, which simultaneously lengthens litigation and makes proceedings more expensive. “We won about $11,000 in fines and attorney fees earlier this year from Kentucky State Police,” Riley said. “But they have appealed that ruling.”
One obstacle for Kentucky requesters is retaining an attorney to enforce the Attorney General’s decision — though enforcing the decision is simple in legal terms, according to Fleischaker: Members of the public who choose to represent themselves might struggle to get enforcement because of their lack of familiarity with legal procedures.
More importantly, in order to appeal the decision of the Attorney General under state law, the agency is procedurally required to sue the requester to prevent the record from being released. “This requires the citizen or news media to pay for an attorney, file motions, go to hearings and wait for a judicial ruling,” Riley said. “Many people give up, and those that don’t may wait years to see the records.” Looking Ahead