Assistant Attorney General Amye Bensenhaver shared her expertise on Kentucky's open meetings and open records laws at the Sunshine Meeting in Richmond March 26
Sixteen years ago Amye Bensenhaver was the first and only full-time attorney hired by the Attorney General's office to review and issue opinions regarding Kentucky's open meetings and open records law. It now takes three attorneys to review appeals about the state's open meetings and open records laws. The number of appeals has risen from about 50 in the 1980s to about 300 per year today.
Still the spirit behind the "sunshine" laws remains the same — public records belong to the public, not the recordkeepers and public business should be discussed before the public, not behind closed doors.
Assistant Attorney General Bensenhaver joined three other panelists March 26 at EKU's Business Technology Center for an information packed presentation on "What you need need to know about your right to know."
The meeting, sponsored by the League of Women Voters of Berea and Madison County and the student chapter of Society of Professional Journalists, was well attended by citizens and EKU students from the journalism and business areas.
One of the newest changes to the state's open records law has generated quite a bit of litigation, Bensenhaver pointed out.
In response to 9/ll issues, the state legislature added a new homeland security exemption to the list of records deemed unavailable to the public. The statute was amended to exempt "public records the disclosure of which would have a reasonable likelihood of threatening the public safety by exposing a vulnerability in preventing, protecting against, mitigating, or responding to a terrorist act."
Bensenhaver noted that the amendment was very narrowly written and requires a three-part test before it can be invoked.
One of the first challenges to the new exemption was filed by the Associated Press relating to Vice President Dick Cheney's fundraising visit to southern Indiana in 2005. After the fact, the AP was trying to determine the cost of the trip and had requested fuel receipts signed by members of the governor's executive staff to pay for the trip and the escort by Kentucky State Police from the Louisville airport.
Governor Fletcher's office and the KSP denied the request on the basis of the new homeland security exemption.
The AP’s lawsuit claimed the denial was improper and the records should be disclosed. Franklin County Circuit Court Judge Roger Crittenden ruled that homeland security exemptions to the state Open Records Act do not apply to the records from Cheney's visit and ruled that the administration had shown no such likelihood for a terrorist act.
Bensenhaver's fellow panelists welcomed that decision, but stressed that saying no is a common response to those who request records.
Bill Estep, veteran investigative reporter for the Lexington Herald-Leader, noted that one part of the law boldly states the openness position: the basic policy of KRS 61.870 to 61.884 is that free and open examination of public records is in the public interest and the exceptions ... shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others.
Nevertheless Estep read from March 2007 articles in the Corbin (KY) Time Tribune where a reporter had not been able to get a 24-hour jail log from the Knox County Correctional Facility. See Corbin Times Tribune article.
"It's not Guantanamo Bay," Estep pointed out. "We can't know who is in the Knox County jail?"
John Nelson, managing editor of the Danville Advocate-Messenger and former president of the Kentucky Press Association, said the battle is constant to educate new officials about the law.
Nelson oversaw an information audit in 2005 that tested access to common public records in all 120 counties. The results printed as a 12-page newspaper edition are available at Yours for the Asking.
Nelson reminds citizens that it is not just the media who need access to records. On behalf of the KPA, he has opposed proposed bills that would expunge or delete records of Class D felonies, for example. Once a crime becomes a public record, it should remain one, he says.
Nelson and KPA also fought unsuccessfully to overturn the precedent of closed juvenile court proceedings and records on the grounds that the public has an interest in how the state handles its juvenile crime.
Estep, who often writes as many as 25 open records requests for a story at one time, also recounted his difficulties in obtaining maps about the lowering of Lake Cumberland. "I asked Corps of Engineers for maps that will show if Wolfe Creek Dam breaks, where will it be flooded," he said. "I knew they had them because they had a series of public meetings where they took the maps and taped them to the wall."
Yet, the Corps initially denied Estep's request using the homeland security exemption saying that the release of the previously public maps might aid a terrorist act.
Richmond Register editor Jim Todd discussed a point about accessing records with Leigh Jones, a LWV member from Berea.Read Ronica Shannon's story about the March 26 meeting.
BE PERSISTENT
Persistence in pursuit of public records is important, the panelists insisted.
Richmond Register editor Jim Todd is currently trying to obtain records from Eastern Kentucky University concerning circumstances surrounding the resignation of an employee over six months ago. The university won't release records using the exemption that the investigation into the employee's behavior is still ongoing, he complained.
Todd uses more of a "stick" approach when he writes open records requests, especially for what he feels are obviously open documents such as the payroll records for city policeman.
He reminds the custodians of the records of parts of the statutes that require a reply no later than three days and the $25 per day fine for improperly denying public records.
DUTY UNDER THE LAW
The 2005 legislature increased the visibility of Kentucky's open government statutes by passing a bill proposed by state Rep. Derrick Graham. A former local official, Graham followed through on his commendable idea to promote awareness among county and city officials, school superintendents and boards, presidents of public universities and their boards of regents so that they would be more responsive to their duties under the state's open meetings and open records laws.
These individuals are now required to make sure all their employees and appointed committees are educated about their fundamental duties under the statues as well as records management.
"If records are improperly destroyed they are not accessible, and you have defeated the purpose of openness and transparency," Bensenhaver said.
The Attorney General's office has provided educational materials on its Web site. Your Duty Under the Law spells out the open meetings and open records laws to new officials and those appointed to serve in the public sector.
Any person who knowingly attends a meeting of any public agency not held in accordance with the open meetings law can be punished by a fine of up to $100.
LAWMAKERS EXEMPT THEMSELVES
Ironically, the lawmakers who crafted Kentucky's open meetings and open records laws and have done a reasonably commendable job of keeping them strong are not subject to its provisions.
"One of the other interesting developments is the General Assembly exempting itself from the open records and open meetings law." Bensenhaver noted.
"I don't understand the rationale of the General Assembly taking itself out of the reach of the open records law. They have their own mechanism for adjudicating disputes that arise, but it's kind of an interesting twist of fate that they make the laws but don't' have to adhere to them."
To find out more about how to use public records and open meeting laws in Kentucky, see our list of links and advice about Open Transparent Government. You'll see links to the statutes, the exemptions and samples of how to write open records requests.
This is the third year LWVUS has joined with other groups to promote national recognition of the importance of transparency and freedom of information in government.
For more information LWV Project Sunshine
