State Journal countersues Finance Cabinet over transparency

A suit brought against The State Journal by the Finance Administration Cabinet moved a step toward resolution earlier this week.

On Wednesday, the newspaper filed a request for summary judgment, or a verdict before trial, in its dispute over whether committees such as the one recently charged with selecting a developer to demolish and replace the Capital Plaza Tower are subject to Kentucky’s Open Meetings Act.

As part of its motion for summary judgment, the newspaper is also countersuing the Finance Cabinet for delaying access, without sufficient explanation, to a reporter’s request for records of the Capital Plaza project bids after a contract had already been awarded.

“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 any evaluation team, bid score, and the final terms agreed to,” the cabinet wrote in its suit filed in November.

The Capital Plaza redevelopment contract was awarded to Lexington-based developer-contractor team CRM/D.W. Wilburn on Dec. 19. The cabinet did not provide The State Journal copies of the bids until last month. According to the Kentucky Open Records Act, a public agency is required to provide records within three business days unless it gives a “detailed explanation of the cause” for the delay.

In the case “Finance and Administration Cabinet v. Alfred Miller” — since renamed “Finance and Administration Cabinet v. The State Journal” — the cabinet argued that an “overbroad interpretation” of the Open Meetings Act could undermine its procurement process. Exposing the identities of selection committee members to public scrutiny would put them at risk of improper contact, lobbying and public opinion pressure.

The cabinet asked for the reversal of an attorney general’s decision concluding that such committees were indeed subject to the Open Meetings Act, as the newspaper had repeatedly asserted.

In the newspaper’s motion filed Wednesday, Director of the Bluegrass Institute’s Center for Open Government Amye Bensenhaver, who is representing The State Journal, writes that the cabinet’s stance is “tantamount to an argument that ‘darkness is the best disinfectant’ ” and a “direct affront to the express language of the Open Meetings Act.”

A related effort by the Finance Cabinet to change the law in question also hit a roadblock on Friday. The state Senate removed House Bill 302 from its consent calendar after backlash from transparency advocates. In addition to excluding electronic communications received using a private electronic device from the definition of public record, the bill also would have amended the Open Meetings Act to exempt “built-to-suit” selection committees.

That same language previously appeared in House Bill 216, sponsored by state Rep. Jason Petrie, R-Elkton. That bill remains stuck in the House’s State Government Committee.

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