A statue of James K. Patterson, the University of Kentucky's first president, looks over the center of campus. (Kentucky Lantern photo by McKenna Horsley)

Lately, national attention on Kentucky news seems to focus on the sensational and the shocking.

The national media reported on the discovery — a day after authorities called off a massive law enforcement search — of the decomposing body of the person believed to be the I-75 shooter by a colorful Casey County couple with genealogical ties to the legendary Hatfields and McCoys.

National reports of the murder of a Letcher County judge by the county sheriff in the judge’s chambers quickly surfaced in media headlines.

It is less common for a national news service covering academia to shine a light into the dim administrative recesses of Kentucky’s public universities.?

But as national headlines heralded the recovery of the shooter’s body — not far from the site where he allegedly committed his crimes — and announced the courthouse murder, The Chronicle of Higher Education redirected national attention to a controversy at Kentucky’s flagship university that the university would have happily preferred, no doubt, to remain local.?

The ironies in The Chronicle’s story — “After a No-Confidence Vote at the U. of Kentucky, a Tussle Over Ballots Gets Messy” — are rich.?

University of Kentucky Senate votes no confidence in president over governance changes

Administrators at the University of Kentucky — an institution whose open records and open meetings performance has been tested and regularly assigned failing marks — lectured members of the now dismantled University Senate, reassigned staff, and threatened legal action, based on the Senate’s records-keeping and records-management practices — practices on which the administration itself had offered bad legal advice in the past.?

Indeed, it is the recording and maintenance of the former University Senate’s votes that is at the heart of the controversy on which The Chronicle focuses. In October, 2021, a UK attorney advised that “it is compliant with the Open Meetings law for the Senate Council/Senate to merely record in the minutes whether or not a motion ‘passed,'” reaffirming this at a later meeting. A 2018 open records request for a copy of the university attorney’s legal analysis yielded a copy of a federal court opinion that offered no support for his position and nothing more.?

To be clear, during its existence, the University Senate was considered a public agency for open meetings purposes. Kentucky’s Open Meetings Act requires public agencies to keep minutes containing accurate records of votes and actions of every public meeting.?

Unless a vote is unanimous, the minutes must reflect how each public agency member voted. Minutes of meetings are to be maintained in “College/University Archives (or designated institutional repository)” for permanent retention.?

Suffice it to say that the University Senate met these requirements. In spite of past advice from the university’s lawyers that minutes of University Senate votes were sufficient if they reflected that the measure upon which the vote was taken was “approved” or “disapproved,” the Senate has, for years, properly maintained Senate votes — corresponding to the identity of the senator casting that vote — and archived them in a secure location.

This, however, is where a unique tension exists.?

Elected representatives of the University Senate, as it was previously known, acted as public servants accountable to their faculty colleague “constituents.” But they also occupied the unique status — in a non-open meetings context — of university employees.?

Access to their individual voting records in certain scenarios — say, for example, a “no confidence” vote on the University president — threatened to expose them to workplace retaliation. The Chronicle reports that some faculty fear the administration will, indeed, retaliate based on their votes — a suggestion the university, of course, rejects and at which it takes great umbrage.?

Perhaps this is why, as The Chronicle of Higher Education reports, the American Association of University Professors “has no policy on how no-confidence votes should be conducted or reported,” but “affirm[s] professors’ right to protected intramural speech.”

“The idea is, senators are voting their conscience. They’re voting for what their colleagues would hope they would vote for, and they should be able to do so in a way that they don’t feel like someone’s going to come for them when they make their voice known,” said one member of UK’s AAUP chapter.?

As noted, those University Senate’s actions were recorded in its meeting minutes. Votes were recorded and reflected how each senator voted. They were archived in a location that limited access unless requested — whether by Uk administrators, a curious professor, The Kentucky Kernel,? a concerned citizen, or anyone else — through the Open Records Act. Upon submission of such a request — triggering statutory duties and a public process that culminates in a published Kentucky attorney general’s open records decision — those individualized University Senate votes were and are publicly accessible.?

In the meantime, the votes are archived and secured (mostly) from surreptitious access and the possibility (even if remote) of retaliation.?

But this unsettled state of affairs teaches me an invaluable lesson, albeit a lesson I learned late in the open government game. A “one size fits all” approach to open government law can yield unexpected and unwelcome outcomes for public servants wrestling with the tension created by statutory duty, on the one hand, and fear of retaliation in the workplace, on the other.?

I, for one, am satisfied with how the University Senate resolved this tension to ensure compliance with open records, open meetings, and records management laws and, at the same time, preserve its elected senators’ right — to the extent legally possible — to vote their consciences.?

More importantly, this unsettled state of affairs teaches us all that “the faculty-administration relationship at the [University of Kentucky,] since the decision was made to reform its shared-governance model,” continues to “deteriorate” with no real end in sight.?

The Chronicle of Higher Education’s reporting ensures that this once local “tussle” is now nationally known.?

Until the law can be amended, there is a temporary solution in the form of a carefully drafted memorandum of agreement for sharing the records with the auditor's ombudsman under terms of strict confidentiality and only for the legitimate governmental purpose stipulated. (Getty Images)

Gov. Andy Beshear and Auditor of Public Accounts Allison Ball squared off earlier this month in a legal dispute over the auditor’s access to iTWIST, a database maintained by the Cabinet for Health and Family Services that “track[s] the state’s efforts to assist its most vulnerable citizens” and that was available to the ombudsman attached to CHFS until July 1, 2024.?

Senate Bill 48, enacted in the 2023 regular session with a delayed effective date, “moved the ombudsman’s office from CHFS to the newly created Commonwealth Office of the Ombudsman in the auditor’s office. The auditor maintains she must have full access to iTWIST in order for the commonwealth ombudsman’s office to discharge its newly assigned duty.

The bill’s primary sponsor, Sen. Stephen Meredith, insists that the bill’s “clear intent was for the [auditor’s] office to have access to the iTWIST database. This common-sense reform ends the practice of the cabinet investigating itself. The language of this bill is clear and undeniable.”

The governor, however, is not convinced. He maintains that in reassigning the duties of ombudsman to the auditor in the 2023 regular session, the General Assembly neglected to revise current laws restricting disclosure of information stored in iTWIST.?

Welcome move to boost child protection in Kentucky trips over conflicting views of the law

He has not publicly described the compromise the administration proposed to the auditor until the CHFS confidentiality statutes can be revised. Instead, he asserted that he is statutorily foreclosed from giving the auditor full access to the database until next year’s session and a legislative fix.?

According to Kentucky Lantern contributor Deborah Yetter, Beshear has ignored a “demand letter” for access to iTWIST that Ball’s office delivered to his office in early July.?

Yetter knows a bit about the subject, having successfully litigated an open records case involving child fatality and near fatality records under KRS 620.050 — the same statute the governor belatedly invoked to deny the auditor access — as a reporter with the Courier Journal during the gubernatorial administration of Beshear’s father, Steve Beshear.?

With due respect to the warring constitutional officers, this dispute is a political tempest in a public records teapot.?

Yes, multiple CHFS-specific confidentiality statutes are embedded in Kentucky law. In fact, KRS 620.050 —- on which, as noted, Gov. Beshear relies — according to the Lantern — led to Yetter’s, and other newspapers’, open records appeals. The appeals culminated in two scathing Kentucky Court of Appeals 2016 opinions denouncing the “culture of secrecy” at CHFS — then operating under Gov. Steve Beshear — for its refusal to disclose child fatality and near fatality reports.?

Some of these CHFS-specific confidentiality statutes are broadly worded; some are narrowly worded; most establish statutory carve outs for classes of individuals or entities with a legislatively recognized need for access.?

One thing is certain, the existence of a statutory confidentiality provision has not — at least in the past — precluded the exchange of confidential records or the sharing of confidential information between public agencies “when the exchange is serving a legitimate governmental need or is necessary in the performance of a legitimate government function.”

This statutory language — which appears at KRS 61.878(5) — has long been construed to “promote agency sharing of otherwise exempt public records” for legitimate government purposes. Although “there is no unqualified right for one entity to examine” the confidential records of another “in their entirety and without restrictions,” past attorneys general have deemed responsible agency sharing of protected records between public agencies, under terms of strict confidentiality, a “laudable goal” that is to be “strongly encouraged.”?

This sharing “eliminates duplication of effort and conserves resources” when the recipient public agency verifies to the custodial public agency that the shared information “is necessary in the performance of a legitimate government function” and agrees to observe the records’ confidentiality.

For example, a 2011 open records decision turned on the existence of a memorandum of agreement between the Medicaid Fraud and Abuse Control Unit of the Kentucky Attorney General’s Office and? the Cabinet for Health and Family Services’ Department of Community Based Services under the terms of which the Medicaid Fraud Unit received statutorily protected records — on condition of strict confidentiality — compiled by CHFS in investigating criminal abuse or neglect cases to discharge the attorney general’s duty to prosecute Medicaid fraud.?

While it is true that “nothing contained [in KRS 61.878(5)] entitles one governmental agency to demand from another information which does not serve a governmental need,” where — as here — the government need is strongly substantiated by the auditor (not to mention the General Assembly), Beshear is on shaky legal ground.?

Ideally, our lawmakers would exercise far less haste and far greater care in languaging new laws. Here, their “intent” may have been “clear.” The bill’s language was not.?

But abused and neglected children should not be further victimized because of legislative ineptitude or gubernatorial stubbornness.

We’ve witnessed the former in multiple instances and the latter in former Gov. Steve Beshear’s past endorsement of CHFS secrecy at the expense of vulnerable Kentuckians. We are witnessing it again.?

Until the law can be amended to everyone’s satisfaction, there is a temporary solution in the form of a carefully drafted memorandum of agreement for CHFS sharing of iTWIST with the Auditor’s ombudsman under terms of strict confidentiality and only for the legitimate governmental purpose stipulated.?

Can these warring constitutional officers set aside their political wrangling for the public good?

The details are still a bit sketchy, but it is clear that attorneys representing the parties in Kentucky’s pension litigation will return to Franklin Circuit Court for a hearing in Tia Taylor, et al. v. KKR? & Co, LP, et al. on Monday after Judge Thomas Wingate gave the green light for the case(s) to proceed.?

In a nutshell, the case pits state pensioner Davids against hedge fund/private equity Goliaths in an action seeking damages “from some of the biggest names in finances,” based on alleged “breaches of fiduciary duty and other bad conduct in the sale and management of custom hedge funds” in relation to the woefully underfunded Kentucky state pension fund.?

The playing field has been leveled, at least to some extent, by the pensioners’ legal team —? led, writes finance and economics authority Yves Smith, “by Michelle Lerach, with her formidable and controversial husband, one-time top securities litigator Bill Lerach.” But for their dogged pursuit of the financial giants — against ostensibly overwhelming odds — the cases might have ended several years ago.?

In her blog “Naked Capitalism,” Smith writes: ?“After yet another long detour from the original case, Mayberry v. KKR, first filed in 2017 and now replaced by overlapping new actions, Judge Wingate has finally completed what must have been the painful process of evaluating the merits of a very large number of motions to dismiss.”

On May 1, Judge Wingate “issued orders on the extremely large number of motions to dismiss. The magnitude of that task, plus getting his arms around the very large body of past filings (generated before Franklin Circuit Judge Phillip Shepherd recused himself in 2022) presumably accounted for the substantial delay. The compact orders are well reasoned,” Smith writes. “They seem even more credible by rejecting the idea that the Attorney General could properly represent the Tier 3 plaintiffs, and denying the motions to dismiss of the hugely powerful defendants, KKR, Blackstone, PAAMCO, and private equity kingpins Henry Kravis, George Roberts, Steve Schwarzman, and Tomlinson Hill personally.”

“The stakes here are much higher than the potentially meaty recoveries. Private equity and hedge funds fetishize secrecy because, too often, their conduct will not stand up to scrutiny. The giant fund managers are almost certain to be most afraid of discovery, since the sharp practices they used with Kentucky Retirement Systems were very likely to have been replicated at other public pension funds. Even the limited discovery so far uncovered more misconduct and allowed the plaintiffs to add to their claims,” Smith writes.

Our interest in the culture of secrecy that pervades Kentucky’s pension system and the ensuing litigation — aimed, at least in part, at avoiding oversight and accountability — began with coverage in the late, great “Insider Louisville,” by reporter Joe Sonka, of the? retirement system’s refusal to comply with Senate Bill 2, enacted in 2017. That law required the retirement systems “to improve transparency regarding the administration of the (retirement) systems” by posting on its website the contracts for the investment managers of the Kentucky Retirement Systems (KRS) and the Teachers’ Retirement Systems (TRS).

Sonka reported that “nearly 100 contracts have not been posted to the pension plans’ respective websites, and many of those that have been posted are heavily redacted.” The retirement systems deferred to the predictably self-serving investment managers in determining what would and would not be posted — state law notwithstanding.?

A few years later, we were outraged by the refusal of the retirement systems, now reconfigured under the Kentucky Public Pension Authority umbrella, to release a copy of a $1.2 million taxpayer funded Calcaterra Pollack consultant’s report resulting from an investigation of “‘any improper or illegal activities’ in billions of dollars in hedge fund deals that led to the lawsuits alleging wrongdoing.”

In a scathing opinion, Franklin Circuit Court Judge Phillip Shepherd ordered release of the report. He reasoned:

“A full review of the Calcaterra Pollack report gives rise to questions as to whether the purpose and intent of the report was to fully expose all the relevant facts (and to determine if the KPPA and its employees made mistakes), or if the report was commissioned to cover up or minimize those mistakes in an effort to convince the (attorney general) to not pursue claims that could prove embarrassing to the current or former management of KPPA.”

“The public paid $1.2 million for this report,” Shepherd ruled, “(t)he public has a right to know its contents and decide if it got what it paid for.”

Secrecy? You bet! And that is why this complex litigation commands our attention.?

Plaintiffs/pensioners’ attorneys reacted swiftly to Judge Wingate’s May 1 orders rejecting defendants/financial investment monoliths’ slew of motions to dismiss.

Within days, pensioners’ counsel filed a motion for a hearing before Judge Wingate. Scheduled for 9 a.m. Monday, May 20, that hearing will, we understand, address at least in part pensioners’ motion for open proceedings and open discovery — that thing most vigorously resisted by defendants.?

By any measure, Monday’s hearing is the critical next step in determining what direction the litigation will take and to how much the public will be privy.?

Our minds return to the Boston Globe/STAT’s successful legal battle to unseal discovery in Kentucky’s Purdue Pharma OxyContin litigation in 2018.

Writing for the appellate panel in a 72-page opinion that resembled a treatise on public access to court records, but that was inexplicably depublished by the Kentucky Supreme Court, Judge Glenn Acree wrote:

“Kentucky’s presumption of public access to court records is broad because ‘every citizen and taxpayer has an interest in the manner in which the government is operated (and to) . . . determine whether public officials are properly fulfilling the functions of their office . . . ‘ Every claim of the Commonwealth against another, including the claim against Purdue, is the property of the people regarding which the public has a legitimate concern. On that basis, the right of access supersedes even the right to privacy (‘right of privacy does not extend to affairs with which the public has a legitimate concern.'”)

With the exception of the Purdue Pharma OxyContin litigation, we can conceive of no public issue in which Kentucky’s citizens and taxpayers have a greater — or more “legitimate” — interest and financial stake than Kentucky’s state pension. This fact clearly militates in favor of openness in the proceedings and records produced in discovery.

About 900 companies, trade associations and other groups registered to lobby during the 2024 session of the Kentucky legislature held at the Capitol in Frankfort. Their combined spending was roughly $1 million higher than the previous record set the year before. (Kentucky Lantern photo by Arden Barnes)

Approximately nine minutes.

That was the duration of the March 12 floor debate in the House of Representatives on House Bill 509.

Approximately nine minutes to reverse nearly a half century of open records law and effectively repeal statutorily established and enforceable rights of public access to records based on their nature and content rather than on the place where they are stored.

Approximately nine minutes to upend decades of legal interpretation to the obvious detriment of the public’s right to know.

At 2:43 pm, HB 509 was taken from the Regular Orders of the Day “and placed upon its passage.”

HB 509’s chief sponsor, Rep. John Hodgson, again introduced his open records bill as one aimed at closing a “gap” in the law created by the explosion in the use of email, texts and other forms of electronic communication to conduct public business.

The mechanism through which HB 509 achieves this goal, according to its sponsor, is the mandatory assignment of public email addresses to all public employees, officers, commission members and board members with direction to use these public accounts, exclusively, to conduct public business or risk agency imposed discipline.

No surprises there.

(We remain unconvinced this will close the purported gap. In our view, there is a far greater likelihood it will create a gap in the open records law through which officers and employees inclined to evade public oversight will be able to drive a truck.)

What was surprising was the unenthusiastic opposition to the bill that 31 lawmakers who ultimately voted “no” to HB 509 were able to muster.

Never have I observed, nor could I have imagined, such oppositional anemia and resignation in the face of a direct frontal assault — of unparalleled magnitude — on the laws securing the bedrocks of democratic government: transparency and accountability.

Only two representatives, Lindsay Burke, D-Lexington, and Rachel Roarx, D-Louisville, even questioned the bill’s sponsor and — as if they had been instructed to rein in their opposition — neither seemed too exercised.

Burke discussed, but did not call, six floor amendments aimed at “increasing accountability” that she filed on March 8 following the previous day’s heated debate of HB 509 in the House State Government Committee. That debate ended in a 12-4-2 vote advancing the bill.

In particular, she focused on House Floor Amendment 7, adding the requirement that public agencies provide each employee with a mobile device or a “digital communication application that is within control of the public agency which may be used on a personal device.”

The latter, she suggested, would secure “government business through official channels” while “not giving up privacy rights” — a proposal that seems to stem from the same erroneous premise that majority lawmakers have advanced, to wit, that public employees and officials are constrained to forfeit their private devices and accounts to fulfill open records requests.

Burke offered “tentative support” for HB 509.

Roarx asked the sponsor to describe the “larger provisions” of the bill and how Kentuckians can expect “to do business going forward.” Hodgson restated much of what he previously stated.

Additionally, Roarx asked about the existence of a fiscal note identifying the costs of implementation of HB 509.

Hodgson’s response?

“Negligible.”

Mercy! Not exactly a grueling line of inquiry.

With that, Speaker David Osborne called for a vote, and the fate of Kentucky’s open records law — at least to the extent of House approval — was sealed.

Where, we ask, was any one of the 31 lawmakers who voted “no” to HB 509? Why were they so strangely silent? Or were they silenced? And if so, by whom??

Let me state this plainly: HB 509 is an unwelcomed and unwarranted “legislative fix” to the bogeyman manufactured by anti-open government lawmakers’ in reaction to recent court opinions recognizing that electronic communications “on personal cell phones are public records when such messages are prepared by or used by the [public agency] members and relate to or concern [public agency] business.”

It is undeserving of legislative, gubernatorial and popular approval if we must accept — in exchange for a fatuous provision mandating assignment of public email addresses to public agency employees and officers and directing employees and officers to use them — a substantial limitation on public agency duties in responding to open records requests through the cynical exclusion from the open records law of a vast cache of public employee and officer generated records relating to public agency business simply because it is conducted and stored on a private device or account.

If we can’t beat them in the courts on this important open records issue — lawmakers’ (and apparently more highly placed “others”) fear and loathing of public oversight goes — we will garrote the open records law. Their open records “modernization” is anything but a step in the right direction!

Unfortunately, we will never know. The very electronic communications that would prove their hypocrisy will forever be out of public reach.

Approximately nine minutes.

Nine minutes.

(Getty Images)

Open government advocates are inclined to rhapsodize about every judicial victory that advances the cause of public agency accountability and defeats government secrecy.?

But it is nearly impossible to overstate the importance of the Court of Appeals’ Oct. 27 opinion in Kentucky Open Government Coalition v Kentucky Department of Fish and Wildlife Resources Commission.

One pundit tweeted that the court’s opinion keeps? it “mildly inconvenient” for public officials to “coordinat(e) through personal electronics.”?

I think, perhaps, it does a great deal more.?

How it began

Kentucky Attorney General Daniel Cameron’s 2021 “decision” to ignore the expansive definition of the term “public record”— and to focus exclusively on those records in the public agency’s physical possession — posed the gravest threat to the open records law to date. Public officials determined to evade public scrutiny rushed to their private cell phones and personal email accounts to conduct the public’s business — free, in Cameron’s view, from public oversight. No less than the future of the public’s “right to know” rested in the balance.?

To be sure, the Kentucky Open Government Coalition’s role as torchbearer for the public’s right to know was a “right place, right time” opportunity we welcomed. It was our privilege to “represent” the public’s interest in litigation against a public agency that refused to assign its commissioners a public email address, posted their private email addresses as the point of contact for commission business, expressed open contempt for the laws in videotaped open records and open meetings training, and ultimately refused to acknowledge the public status of the commissioners’ agency-related electronic communications on those private accounts.?

But it is to the coalition’s litigation team — attorneys Michael Abate and Rick Adams of Louisville’s Kaplan, Johnson, Abate & Bird — that we, and all Kentuckians committed to the principles of open, transparent, and accountable government, owe a tremendous debt of gratitude. It was their depth of knowledge, unwavering commitment, and skillful advocacy that convinced the appellate court and won the day.?

Kentucky appellate court vindicates principles of open government

In a 32-page opinion authored by Judge Jeff Taylor, the Court of Appeals declared:

“(Electronic) messages stored on personal cell phones are public records when such messages are prepared by or used by the members of the Commission and relate to or concern Commission business.”

Fundamental to the appellate court’s analysis was the expansive statutory definition of the terms “public record” and “public agency,” and a rejection of the commission’s privacy and undue burden arguments. But at a basic policy level, the opinion emphasized that:

“To hold otherwise would certainly defeat the underlying purpose of the Open Records Act as public officials could easily evade disclosure of public records by simply utilizing their personal cell phones.”

With respect to these electronic communications, the court continued:

“(B)oth the Commission and its members have a duty to produce public records within their ‘custody or control.’ KRS 61.872(4). It is beyond cavil that the Commission members have custody or control over text messages stored on their personal cell phones, and as either agents of the Commission or as officials thereof, the Commission members are bound by the Open Records Act.?

“Therefore, we hold that text messages related to Commission business and stored on personal cell phones of its members are public records generally subject to disclosure under the Open Records Act absent an applicable exception.”

Judge Sara Combs and Judge Chris McNeill concurred, the latter filing a separate opinion to “assuage any concerns the Kentucky Open Records Act requires public agencies to turn over private cell phones” or mandates wholesale disclosure of “all public records generated on private cell phones or private email accounts.”?

“Our Opinion, ” wrote McNeill, “merely holds that ‘text messages (or emails) related to Commission business and stored on personal cell phones (or personal email accounts) of its members are public records generally subject to disclosure under the Open Records Act absent an applicable exception.’

Thus, only those public records not covered by an exemption would be subject to disclosure.”

Judicial understatement at its best. In a world of legally sanctioned secrecy and subterfuge — not to mention legislative hyperbole aimed at falsely? arousing the concerns to which McNeill referred — this is enough.?

This is more than enough.?

Once final, the opinion will settle the often heated debate. Electronic communications concerning public business exchanged by public agencies (and their officials and agents) are public records and therefore subject to the Open Records Act. These communications must be managed and retained as such, and certainly cannot be deleted at will. The communications are open to public inspection, if requested under the open records act, unless they fall under one or more of the exceptions to the act.?

Had the court reached a different conclusion?

Imagine if public agencies, their officials and agents, could avoid public accountability by simply relocating public records to “private” premises — a home file cabinet, desk, storage unit. Members of former Gov. Matt Bevin’s legal staff unsuccessfully tried this with executive pardon records. A Finance Cabinet legal action quietly restored those records to their rightful owners: the public.?

The attorney general’s position that concealing public records on officials’ private devices and accounts — a position whose dangers were compounded by the ubiquitous nature of electronic communication to conduct public business — is effectively dead.?

What lies ahead

It’s likely that we have not heard the final word in this case. The Kentucky Department of Fish and Wildlife Resources Commission may ask the Kentucky Supreme Court to review the Oct. 27 Court of Appeals’ opinion. If so, we wait.?

And make no mistake. Every judicial victory can be, and often is, met with an equal and opposite legislative defeat. For example, request the public records of the General Assembly, or the records of its administrative arm, the Legislative Research Commission, and that august body legislates itself and LRC out of the open records law.?

It will be up to each of us who values what remains of open government to closely monitor legislative skullduggery aimed at undermining our nearly 50-year-old right to know — especially “last-minute mule bill shenanigans” — as the upcoming session proceeds.

It will be incumbent on us — Republican, Democrat, and Independent, right leaning and left leaning, conservative, moderate, and progressive — to speak with one voice in vigorous and unyielding opposition to legislative attempts to undermine our open government laws.?

For now, we celebrate the Oct. 27 opinion of the Kentucky Court of Appeals. The court got it right.

Gov. Sarah Sanders signs a slew of bills passed during the special legislative session held this week in Little Rock. Sanders signed an FOI bill and a vaccine mandate bill among others. Sponsoring legislators are arrayed behind the governor during a media event at the state capitol Thursday morning. John Sykes/Arkansas Advocate 09/14/2023

It’s doubtful that Arkansas Gov. Sarah Huckabee Sanders anticipated the national firestorm she would ignite on Sept. 8 when she called the state’s General Assembly into special session — commencing Sept. 11 — to enact legislation aimed at upending the state law governing the public’s right to know, the Arkansas Freedom of Information Act.

Clearly, she underestimated bipartisan opposition to her anti-transparency agenda, but it was no doubt Republican opposition that caught her off guard.

Stumbles out of the gate

On the first day of the special session, The Washington Post reported that Sanders’ “proposal to restrict the public’s access to records about her administration, travel and security stumbled with lawmakers trying to rework the legislation in the face of growing criticism that it erodes the state’s open records law.”

Sanders’ claims that “some are weaponizing FOIA and taking advantage of our laws to hamper state government and enrich themselves. They don’t care about transparency. They want to waste taxpayer dollars, slow down our bold conservative agenda” we’re quickly refuted.?

Open government proponents responded, “Avoiding public scrutiny is neither bold nor conservative; it’s weak and reactionary. Requiring elected officials to obey the law isn’t ‘weaponizing’ the law.”

As efforts to implement the governor’s multi-pronged attack on the state’s public records law collapsed under the weight of public opinion, Joey McCutchen, founder of the Arkansas Transparency in Government Group, reminded lawmakers, “The power of the people was on display. People from all walks of life — left, right, Democrat, Republican, poor, rich, across the spectrum — came together to talk about the importance of our right to know.”

And at the conclusion of the session, The New York Times reported: “In a moment when the country’s politics have become highly polarized, supporters of the legislation, perhaps unwittingly, seemed to run into a rare slice of common ground: distrust of the motives of government officials, and resistance to a plan that would allow them to operate with less scrutiny.”

What remained after the people made their voice heard

Less than a week after the special session call, the legislative turmoil subsided, the national focus shifted away from Arkansas, and Sanders quietly signed a stripped down version of her original FOIA proposal.

How much of Sanders’ anti-transparency agenda — masquerading as forward-thinking legislative revision intended to enhance security and improve FOIA efficiency — was enacted into law?

Very little.

The new law, which contained an emergency clause and took immediate effect, is retroactive to June 1, 2022. It creates a new exemption to Arkansas FOIA for records related to the security detail of the governor and constitutional officers. It also requires the Arkansas State Police to file a quarterly report with the General Assembly that provides an overview of their associated expenses.?

During her Sept. 8? special session call, Sanders endorsed a bill that included:?

• A new exemption modeled on the federal deliberative processes exception for records revealing the deliberative process of state agencies, boards, or commissions, including inter-agency and intra-agency memoranda and communications reflecting recommendations and deliberations “that comprise part of the process by which governmental decisions and policies are formulated.”
• Records prepared by an attorney representing an elected or appointed state officer, a state employee, or a state agency, board, or commission in anticipation of litigation or for use in pending litigation.
• Records created or received by an elected or appointed state officer, a state employee, or a state agency, board, or commission that would be covered by attorney-client privilege.
• A provision that would have made it more difficult for requesters to recover attorneys fees and costs when they successfully appeal a public agency’s denial of a FOIA request in court. Under current law, the court must award reasonable attorneys fees and costs to the requester if the requester obtains?“a significant or material portion of the public information” in the appeal.?The failed proposal would have authorized the court to award attorneys fees and costs only if the requester “substantially prevailed” or the agency denied the request “arbitrar[ily] or in bad faith.” Critics feared that the higher legal standard would discourage aggrieved requesters from appealing public agency denials in court.
• A retroactivity clause back to January 1, 2022.?
• Nothing of these proposals remain.?

But many believe that the original opponents of the bill yielded too quickly on the “security records” component. Few believe that the fight for open government is over in Arkansas.?

A subplot

Perhaps Sanders did envision major blowback from her special session call.?

Perhaps she contrived to divert attention from the primary goal of evading accountability for lavish spending of taxpayer dollars on political and personal travel by proposing a legislative package that included multiple jaw-dropping subparts to ensure passage of the statutory revision that some believe prompted the special session call: the freedom to come and go on public time and at public expense without public accountability.?

Like Florida Gov. Ron DeSantis, Sanders emphasized her unique notoriety —? and a corresponding elevated threat level — to justify what was and is, laid bare, an unapologetically anti-transparency agenda.?

One thing is certain

Sanders vowed to continue her war on Arkansas FOIA even as she signed into law the scaled back version of her “bold” and “conservative” FOIA-busting legislation,? as well as special session legislation cutting the state’s top individual income tax rate from 4.7% to 4.4% and the corporate rate from 5.1% to 4.8% and legislation prohibiting state and local governments from requiring COVID-19 vaccinations.?

“We’re not going to stop continuing to fight for more government efficiency and effectiveness, and I think this is just the beginning of this process,” Sanders said.

She would do well to remember the power of the people to defend their right to know. As one Arkansan testified last week: “I used to think only two things united Democrats and Republicans in this state: love of our mothers and the Razorbacks. But I’m happy to find that their love of FOIA is a third.”

Gov. Sarah Huckabee Sanders stands beside her husband, Bryan, during her January inauguration as her parents, former Gov. Mike Huckabee and Janet Huckabee, look on. (Photo by Karen E. Segrave/Arkansas Advocate)

Arkansans set a high bar for Kentuckians in responding to their governor’s direct assault on the state’s public records law, and their message is clear: Stop putting the public’s interest last yet again.?

As one critic loudly proclaimed, “Avoiding public scrutiny is neither bold nor conservative; it’s weak and reactionary. Requiring elected officials to obey the law isn’t ‘weaponizing’ the law.’”

Kentuckians should heed what’s happening in Arkansas in the likely event of an attack on Kentucky’s open government laws in the 2024 regular session.

Arkansas mimics Florida, Kentucky at a disadvantage?

Arkansans had a marked advantage in this regard: three whole days to organize their opposition to Gov. Sarah Huckabee Sanders’ call for a special legislative session to, among other things, overhaul the state’s Freedom of Information Act.?

In a Friday press conference to announce the special session commencing Monday, the governor claimed that the Arkansas public records law “slows state government operations and exposes her and other constitutional officers to security risks.” On the pretext of modernizing the law, she lamented that it is being “weaponized” to “slow down our bold conservative agenda.”

Following in the hallowed footsteps of her Florida counterpart, Ron DeSantis, Sanders is determined to shield her travel records from public scrutiny. But that’s only part of her multi-part scheme to upend open government in Arkansas.

Her bright idea to dim the sunlight in Arkansas includes:

• Creating a new deliberative process exemption to substantially reduce the information Arkansans can obtain through the state FOIA about the deliberations of officials’ policy recommendations and other governance matters.

• Making it more difficult for an attorney or individual winning a FOIA claim to recover attorney fees and other reasonable expenses.?
• Including a “retroactivity clause” that would apply new state FOIA exemptions to requests dating back to Jan. 1, 2022.

Public condemnation of Sanders’ ‘stealth bomb’

In less than 24 hours — more like 24 minutes — Arkansans swung into action to defend their half- century old public records law. I could fill a monograph with quotations drawn from the stirring defense of the Arkansas Freedom of Information Act that appeared in a single day.

It is this level of media and public outrage — this organized and immediate call to action — that is the last, best hope for dissuading the proponents of the anti-transparency agenda in Kentucky — a line that traces its recent origins to the likes of former Gov. Matt Bevin, Senate President Robert Stivers and Attorney General Daniel Cameron.

The first declared the actuarial analysis of his public pension reform plan, his travel records, and his executive pardon records none of the public’s business.?

The second histrionically asserted the necessity of legislative secrecy as the basis for excluding the General Assembly and the Legislative Research Commission from the open records law.?

The third exploited his role as open records and open meetings administrative adjudicator to divest the public of its long recognized right to public records based on their content and not their location, its ability to assess the propriety of a closed session, and its expectation that public officials’ discussions of public business will be conducted in a public forum (not by email).?

Kentucky’s handicap

Sadly Kentuckians are at a disadvantage. Whereas Sanders gave opponents of her assault on that state’s Freedom of Information Act a whopping 72 hours to organize, Kentucky lawmakers are determined to keep the public entirely in the dark about the schemes they are hatching for the coming legislative session — until they are hatched.

Kentuckians have no way of knowing if Arkansas is a preview of what we can expect in the upcoming legislative session.

This is because the General Assembly’s supermajority is keeping a tight lid on the bills that will be introduced in the 2024 regular session. The past practice of posting pre-filed bills was statutorily eliminated in 2022’s HB 10. The more controversial the bill, the less likely the public is to know about it until the 2024 Regular Session is upon us. This severely handicaps the ability of stakeholders to engage with lawmakers and to alert the public to legislative threats to existing law.

Given the fact that similar laws aimed at limiting the public’s right to know were enacted? in Florida earlier this year, and have been introduced in Arkansas, this may represent a national legislative playbook. Unfortunately, we are unlikely to know until it is too late.

RIP government transparency??

No less than Republican President Gerald R. Ford once declared, “In a democracy, the public has a right to know not only what the government decides, but why and by what process. The Government serves and the people rule.”

Times have clearly changed. Sadly, these changes include a burgeoning assault on open government.?

The reason is clear: Open government laws are the Great Equalizers. Today’s public officials do not like an equal playing field in which we are all equipped with the same knowledge and information.

To the extent our lawmakers see fit to afford us a glimpse into their machinations, keep a watchful eye, Kentucky. To borrow a phrase, it is our right to know – not merely a privilege – that officials threaten.?

Schools required masking during the COVID-19 pandemic in keeping with guidance from the Centers for Disease Control. (Getty Images)

“The purpose of open meetings laws is to provide a window, not a weapon for political sparring.” — Kentucky Court of Appeals ruling by Chief Judge Larry E. Thompson, Judges Kelly Mark Easton and Annette Karem in Campbell County Board of Education v. Ken Moellman Sr. and Noam Heim?

An open meetings challenge to policies requiring masks at public meetings was inevitable from the moment COVID-19 reached Kentucky in March 2020.?

This is because the open meetings law states that “(n)o condition other than those required for the maintenance of order shall apply to the attendance of any member of the public at any meeting of a public agency.” A public meeting mask requirement as a condition of in-person attendance seemed to fall squarely within this prohibition.?

No mask + no admission = no can do.

A flood of executive orders, regulations, court orders, and legislative actions cast doubt on this deceptively simple formula. The open meetings law found itself at the center of a legal and political free for all.?

Well into the pandemic, a legal challenge was, in fact, raised in a case involving Ken Moellman and the Campbell County Board of Education.?

On Aug. 25, 2023, the Kentucky Court of Appeals affirmed Campbell County Circuit Judge Julie Reinhardt Ward’s ruling that the board violated Kentucky’s open meetings at four school board meetings in August and September of 2021, by requiring that all in-person attendees wear a mask or other facial covering. The unanimous appellate court panel nevertheless reversed the circuit court’s decision to void the actions taken by the board at those meetings and its decision to impose statutory fines on the board.?

The court’s opinion moves us one step closer to final resolution of this issue. However, a trip to the Supreme Court, according to the complainant’s counsel, is likely if the high court can be persuaded to grant discretionary review.

Background

For some time after the start of the COVID-19 emergency in March 2020, the Campbell County Board of Education held meetings via videoconference (under a temporary statutory modification to the open meetings law).

At some point, the board resumed in-person meetings, but required masks at all such in-person meetings. Moellman did not specifically challenge the mask requirement prior to the Aug. 9, 2021, meeting.?

Moellman attempted to attend each of the subsequent challenged board meetings in person, but he was denied entry because he refused to wear a mask.?

On Sept. 21, 2021, Moellman sent a written open meetings complaint to the board in which he alleged that the mask requirement was an impermissible condition on attendance which violated the open meetings prohibition on imposing conditions on attendance ‘other than those required for the maintenance of order(.)’?

(Moellman also argued, we are told, that his exclusion from the meetings violated KRS 61.810(1) — the fundamental mandate of the open meetings law, declaring that “All meetings of a quorum of the members of any public agency at which any public business is discussed or at which any action is taken by the agency, shall be public meetings, open to the public at all times.”)

To remedy the violation, Moellman demanded that the board rescind the mask requirement, redo actions taken at those meetings, and apologize.?

The board denied that the mask mandate violated the open meetings law, arguing that masks were required to maintain order. In its defense, the board noted that it had followed the executive orders, court orders, regulations, and school operational plan that had been in place. The board also noted that the meetings could be viewed via live-stream. The board refused to implement the remedies Moellman proposed in his complaint.?

Moellman immediately filed suit.?

The circuit court opinion?

Following briefing and a hearing, the circuit court held that the board violated the open meetings law at four of the meetings in question. The circuit court found no violation of the law at the Aug. 16 and 18, 2021, meetings because there was a valid executive order in place requiring masks to be worn in schools.

The circuit court determined that there was no legal justification for requiring masks at the meetings conducted on the remaining dates, that masks were not necessary for the maintenance of order at the meetings, and that therefore the mask mandate was a violation of the open meetings law. The court awarded Moellman the statutory fines, to be paid by the board, and voided the actions taken at the meetings. It later awarded attorney fees and costs.

The Court of Appeals opinion?

In an opinion issued Friday, Aug. 25, the Court of Appeals agreed with the circuit court that the mandatory mask requirement for in-person meetings was defensible only to the extent it was consistent with a then current and enforceable executive order? specifically, the Aug. 16, and Aug. 18, 2021, meetings — KRS 61.840 notwithstanding.?

The appellate court also agreed that the remaining challenged meetings — those occurring when there was no valid order or regulation in place — violated the KRS 61.840 prohibition on conditions on attendance at public meetings and therefore the open meetings law.?

The Court of Appeals reversed the circuit court’s decision to void any actions taken at these meetings and to impose statutory fines. The unanimous panel agreed with the board that the penalty provision of the open meetings law, KRS 61.848(5), does not authorize a court to void actions taken in public meetings which violate KRS 61.840, the statute the board was found to have violated, and in the absence of board “willfulness” warranting an award of fines, costs, and attorney’s fees.?

(This is the crux of Moellman’s likely request for discretionary Supreme Court review. His attorney, Chris Wiest, advises us that “that aspect of the decision was mistaken.”)

A troubled court?

Whether mistaken or not, the court clearly struggled with the circumstances out of which the open meetings appeal emerged — the chaos, rancor, mistrust, accusations, recriminations, bitter debate, and seemingly endless litigation — all stoked by fear of the unknown.?

Pages 12 through 14 of the appeals court’s opinion summarize the utter confusion of those days.?

Perhaps the court says it best, nearing the midpoint of its decision, and observing with a hint of reluctance:

“It is doubtful that the General Assembly would have had cause to consider the impacts of a pandemic when enacting the Open Meetings Act. Maintaining public health generally would not have been the policy addressed by an open meetings law. The importance of avoiding spread of disease was in the realm of other laws. We see the interaction of these two policies here. The public health was regulated through the competing executive and court orders and legislative actions. For this reason, we excuse, as did the circuit court, any issue with the order provision of the open meetings law for those meetings during which a public health provision governed.

“Once the public health provision no longer applied, we must consider only the authority of the Open Meetings Act to maintain order. We then conclude the circuit court did not err in its legal conclusion that the Board violated the Open Meetings Act by making a mask a condition of attending the in-person meetings on those occasions when there was no separate legal basis for doing so.”

Prognosis for participatory public meetings post-pandemic

The open meetings law was enacted in an era when the General Assembly established the public’s interest in participatory government as its highest priority. But for all its good intentions in 1974, it could not have anticipated a pandemic or the need to enact laws that ensured public participation in public agency meetings during a pandemic. The open meetings law suffered in the chaos of the pandemic, and temporary laws later made permanent, forever subordinating public rights to agency convenience.?

The clearest example: Kentucky’s video teleconferencing bill, KRS 61.826. Enacted in 1994 to extend opportunities to the public to attend public meetings at remote video teleconferencing locations, the law was radically altered in 2022 to authorize agencies to make the unilateral and unrestricted choice to conduct exclusively in-person or exclusively video teleconferenced meetings, without regard to the public’s interests, and thereby keep the public at bay. The law has suffered recurring insults at the hands of Attorney General Daniel Cameron. Add to this agency defiance, disdain, and dismissal of the open meetings law.?

The open meetings law has not yet fully recovered and may never fully recover. Selfish and self-serving politicians have seen to that.

Gubernatorial candidate Daniel Cameron listens to a speaker during the Lincoln Day Dinner on Friday, April 14, 2023, at the National Corvette Museum in Bowling Green. (Austin Anthony/ for the Kentucky Lantern)

At long last, Attorney General Daniel Cameron has been called out by a court for ignoring precedent when it conflicts with his policy preferences for secrecy in government.

The Oldham County Circuit Court’s June 13 open meetings opinion in J. Albert Harrison v. Oldham County Ethics Commission should serve as a cautionary tale for Kentucky’s next attorney general.

Harrison, along with his attorneys, Jeremy Rogers and Suzanne Marino of Louisville’s Dinsmore & Shohl, convinced the court to reverse an open meetings decision issued by Cameron’s office in September 2022 that would have effectively “eviscerate[d] most of the Open Meetings Act’s operative provisions.”

Oldham Circuit Court Judge Jerry Crosby II ruled that the local ethics commission’s failure to observe the requirements for conducting a closed session — specifically the requirements that it give notice to the public of the statutory basis for a closed session and that it take final action in open session — violated the open meetings law.?

Cameron’s 2022 decision determined that although the ethics commission failed to comply with the open meetings requirements for closed session, the commission’s noncompliance did not violate the open meetings law. His decision ignored over four decades of case law and attorney general decisions.?

The Cameron decision would have permitted members of a public agency to convene a public meeting, retire to closed session, exit the open meeting without legal explanation — leaving the public to wonder what the members were discussing behind closed doors — and return some time later for the purpose of adjournment, having taken final action in closed session.

The Oldham Circuit Court rejected this affront to 40-plus years of precedent, agreeing with Harrison that Cameron’s “overly simplistic interpretation of [the statute] would effectively gut the Open Meetings Act.”

Recipe for secret government sauce

The Franklin Circuit Court last year rejected an equally serious affront to open government in reversing a 2021 Cameron decision that excluded public officials’ electronic communications about public business on their private devices and accounts from the application of the law. Declaring that the emails and texts were not “public records” because they were not “possessed”? by the agency the officials served, Cameron’s decision ignored long standing Office of the Attorney General precedent recognizing, “In the end, it is the nature and purpose of the document, not the place where it is kept, that determines its status as a public record.”?

Add to these Cameron’s recent declarations that a discussion of public business by “written communications, such as emails,” between a quorum of the members of a public agency, is not subject to the open meetings law — because “that interpretation lacks textual support from the Act [and] lacks any basis in what the word ‘meeting’ means” — and you have the perfect recipe for secret government sauce.?

The Franklin Circuit Court’s open records opinion is on appeal. Oral arguments are scheduled in Louisville on August 29.?

It remains to be seen whether the Oldham Circuit Court’s open meetings opinion in Harrison’s case will be appealed.?

It is also unclear what the future holds for Cameron’s recent decisions redefining the term “meeting” and dangerously limiting the scope and application of the open meetings laws.

What is abundantly clear is that in all of these decisions Cameron ignored decades of precedent.?

Precedent. This is the lynchpin on which the Oldham Circuit Court’s opinion turns.?

And it is what singles out the opinion as a uniquely important open government case.

Cameron ignores decades of precedent

In reversing the attorney general’s open meetings decision, and voiding the action illegally taken by the Oldham County Ethics Commission in closed session, Judge Crosby focuses on Cameron’s unexplained departure from an interpretation of a law that “goes back forty plus years with no overt repudiation by the Courts or the legislature as to a different interpretation.”

In support of Harrison’s position, attorneys Rogers and Marino cited decades of case law and “numerous Attorney General opinions.”?

Unlike the attorney general, “the Court reviewed every single one. Up until 2018, the Attorney General consistently [interpreted the pertinent statute]. However, with no reference to or discussion of prior Attorney General opinions, the Attorney General in this opinion, basically eradicated forty plus years of precedent regarding the interpretation of this provision, citing a Kentucky Supreme Court case of Cunningham v. Whalen.”

The court distinguished the Cunningham opinion, explaining why the opinion was not controlling.?

All of this is, in its own right, critical to the survival of Kentucky’s open government laws. But in a larger sense, it exposes the fatal flaw in Cameron’s approach to adjudicating open records and open meetings disputes.?

His decisions “overturn decades of decisions by both the Attorney General and the Kentucky Courts. What is most troubling is [that he] offers no rationale for this departure especially in light of the fact that no changes were made by the legislature to these provisions” of the open records or meetings laws.?

In other words, Judge Crosby agrees with Harrison, Rogers and Marino, as well as the Kentucky Open Government Coalition, and access advocates across the state, that Cameron wrongly prioritizes policy preference over decades of precedent without legal justification.?

Judge Crosby pointedly observes: “In Commonwealth v. Chestnut, the Kentucky Supreme Court noted that the Attorney General had an obligation to explain why his decision departed from earlier precedent, citing to In re Hughes and Coleman. (‘[T]he Attorney General had an obligation to explain why his decision in Chestnut’s case was at variance with his prior opinions.’) In re Hughes and Coleman, the Court recognized ‘that an administrative agency either must conform with its own precedents or explain its departure from them.?

“‘An agency changing its course must supply a reasoned analysis indicating that prior policies and standards are being deliberately changed, not casually ignored, and if an agency glosses over or swerves from prior precedents without discussion, it may cross the line from the tolerably terse to the to the intolerably mute. Consequently, while the agency may reexamine its prior decisions and depart from its precedents, it must explicitly and rationally justify such a change of position.’”?

Stated simply, when deciding open records or meetings disputes between the public and public agencies, the Attorney General cannot abruptly, and without written justification and explanation, change course. He must adhere to precedent or identify the legal basis for changing course. And a policy preference generally disfavoring the public’s right to know is not a “legal basis.”

As U.S. Supreme Court Associate Justice Benjamin Cardozo wrote: “What has once been settled by a precedent will not be unsettled overnight, for certainty and uniformity are gains not lightly sacrificed. Above all is this true when honest men have shaped their conduct on the faith of the pronouncement.”

Competing to become Kentucky’s next attorney general, Democrat Pamela Stevenson and Republican Russell Coleman should take note. Cameron’s successor? must resist the temptation to elevate her/his policy preference over precedent.?

Perhaps Cameron himself will learn about the importance of precedent from the defeat recently handed to him by the Oldham Circuit Count.

We have not fought the battle to shine a light on state and local government for nearly 50 years only to have Cameron, or his successor, arbitrarily shut off the light.

Daniel Cameron spoke to the Warren County Republican Party's Lincoln Day Dinner in Bowling Green in April. (Kentucky Lantern photo by Austin Anthony)

What would a Daniel Cameron gubernatorial administration look like through the lens of Kentucky’s open government laws?

In a word: opaque.

Since taking office as attorney general in December 2019, Cameron has established a track record of disdain for the public’s interest in free and open examination of public records and the formation of public policy at public meetings.

In a recent example, Cameron’s staff was in Franklin Circuit Court for a March 29 status conference on undisclosed public records in an open records case, American Oversight v Office of the Attorney General. The case was initiated in January 2021 after Cameron substantially denied the nonpartisan nonprofit watchdog’s June 2020 request for operational records of his public task force on “ballot integrity.” When American Oversight appealed that denial, Cameron affirmed his office’s actions. American Oversight later appealed to the Franklin Circuit Court.

The court was unconvinced by Cameron’s position, resolving the open records lawsuit against the attorney general in July 2022.

In a decisive victory for open government, the court questioned the adequacy of the attorney general’s search for records responsive to American Oversight’s request, declaring that open records requesters “cannot be expected to know all relevant search terms or places where the agency may file such records. To place that burden on the requestor is to invite the agency to hide relevant records that are obscurely labeled or stored in deep recesses of its bureaucratic records system. It is the duty of the agency to conduct an open, thorough, and good faith search of its records in response to an Open Records request.”

Cameron’s failure to conduct a good faith search for responsive records has necessitated a series of hearings in the Franklin Circuit Court aimed at compelling him to discharge his first and most fundamental duty under the open records law. Cameron continues to drag his feet, and nearly one year later no final resolution has been reached in the case.

Nothing communicates contempt for the open records law like Kentucky’s chief law officer, chief law enforcement officer, and administrative adjudicator of open records appeals thumbing his nose at court orders directing his own agency to conduct “an open, thorough, and good faith search of its records in response to an Open Records request.”

A legacy legal team

The now depleted legal staff that Cameron inherited from former Gov. Matt Bevin — widely known for combating the public’s right to know in the courts — provides additional proof of his administration’s disdain for the principles of open government.

Who can forget the Bevin legal team’s unsuccessful efforts to block release of the then-governor’s ill-conceived public pension reform plan and its equally unsuccessful efforts to hide the names of stockholders and investors in the $15M taxpayer funded Braidy Industries “con job.”

It is unlikely we will ever know the fate of executive pardon records removed by Bevin attorneys `a la Mar-a-Lago and returned — only in part — after the attorneys were sued by the current governor’s Finance and Administration Cabinet.

This was the legal team that shaped Cameron’s anti open-government agenda from the earliest days.

Beshear advances, Cameron withdraws

In 2017, then-Attorney General Andy Beshear intervened in a case involving access to sexual misconduct records at Western Kentucky University. The case was filed by the university against the student newspaper, the College Heights Herald. Beshear intervened to clarify his statutory authority to obtain additional documentation from a public agency in an open records appeal.?

In October 2020, Daniel Cameron withdrew the motion to intervene.

The WKU case was one of three involving public universities — University of Kentucky, Kentucky State and WKU — in which the universities refused to provide student media access to staff and faculty sexual misconduct records. When those denials were appealed to the attorney general, the universities refused to cooperate, as the law requires, by “furnishing the Attorney General with additional documentation from the agency for substantiation . . . [including] a copy of the records involved.”

The universities’ refusal to cooperate by providing the requested documents “severely impaired” the attorney general’s “ability to render a reasoned open records decision under statute” and resulted in an attorney general’s decision against each.

University of Kentucky v The Kernel Press, Inc. ended in a scathing opinion against UK.

WKU and Kentucky State University were embroiled in subsequent open records disputes.

The KSU case was resolved. Not so, the WKU case.

Cameron inherited the WKU open records case from Beshear. He did not, however, inherit Beshear’s commitment to repudiating public universities’ efforts “to turn Kentucky’s Open Records Act into a ‘trust me’ law.”

“At the request of Daniel Cameron, the state’s attorney general,” the Warren Circuit Court dismissed Beshear’s intervening complaint in Western Kentucky University v The College Heights Herald in October 2020.

Why seek clarification of the scope of his statutory authority to review open records appeals if, as the new attorney general, you intend to use that authority sparingly, if at all?

Broadly speaking, Cameron telegraphed that he is content to trust public agencies, including public universities.

Cameron abandons open records neutrality

In February, we learned that Cameron had requested leave from the Kentucky Supreme Court to file a memorandum in support of the City of Shively Police Department in the department’s petition for review of the Court of Appeals’ opinion, Courier Journal, Inc. v Shively Police Department, an opinion favoring public access to certain law enforcement records in an open investigation.

In an unprecedented move, Cameron abandoned his neutral role as an open records dispute mediator to advocate on behalf of the Shively Police Department and its erroneous treatment of KRS 17.150(2) as a nondisclosure provision incorporated into the open records law. (See subsection 2.)

Cameron is not the first attorney general to adopt the erroneous interpretation of this statutes to permit nondisclosure of all records in an open investigation, but he is the first to “participate as a partisan in [an open records] appeal.”

Writing in opposition to the attorney general’s motion to file a brief in support of the Shively Police Department, Courier Journal attorneys Jon Fleischaker, Michael Abate and Rick Adams asserted:

“While it may not seem unusual for the Attorney General to participate as amicus before this Court, it is highly unusual for the Attorney General to seek to do so in an Open Records Case. And there is good reason for that. In the system created by the General Assembly, the Attorney General’s office is supposed to serve as a neutral arbiter for administrative appeals, allowing members of the public and media to quickly and inexpensively hold agencies to account for denying records requests. It is not supposed to be an advocate when those interpretations are challenged in court.”

They rightly concluded, “The Attorney General has now abandoned that neutral role.”

Cameron as first line reviewer of open records and meetings appeals

Whether committed in the name of “strict” statutory construction or reliance on aberrant legal authority, Cameron is to thank for these outrages to open government, among others:

? Vastly expanding government secrecy in conducting the public’s business by declaring that public officials’ and public employees’ communications about the public’s business on their personal devices and accounts are not public records;

? Perpetuating? law enforcement agencies’ erroneous belief that all records in an open criminal investigation are excluded from public inspection; and

? Eviscerating open meetings laws by narrowly interpreting the terms “meeting” and “public business and by massaging facts and law to favor public agency interests above those of the public. The Kentucky Open Government Coalition documented these outrages, to date, in an April 2022 op-ed.

Even greater outrages, we fear, lay ahead.

Kentucky’s nightmare?

“Secrecy,” Bill Moyer’s reminds us, “is the freedom tyrants dream of.”

Open government has witnessed a slow and painful “near-death by a thousand cuts” under Cameron. He regularly abandons decades-old authority that emanated from statements of legislative policy and judicial interpretation favoring public access to advance government agency interests.

The open government picture that emerges in Cameron’s administration is dark. There is little reason to expect dramatic change if he attains the office he once criticized former attorneys general for seeking.

If elected governor, Cameron’s dream of secrecy is likely to become Kentucky’s nightmare.

Louisville city hall.

Louisville Mayor Craig Greenberg is making good on his campaign promise to improve Louisville Metro open records compliance in his first budget. He has allocated $475,100 to create a new Department of Records Compliance, including six new positions to handle open records requests.

“Greenberg has expressed the hope that this proposal will make Metro government ‘more transparent and more prompt in responding to requests for open records,’” reports WDRB’s Marcus Green.

It’s a start — and an important one. But a change in culture will only come with a change in attitude.

There is something more fundamental, and less costly, that would be equally effective in promoting transparency and open records compliance in Louisville Metro Government.

Training.

Not just any training.

Not just dry and uninspired training focused on the nuts and bolts of Kentucky’s open records law but training aimed at instilling in Metro Government officials and employees an appreciation for the value of the law.

And not just any trainer.

I once observed an open records trainer describe Kentucky’s open records laws as a “sins of the fathers” law — enacted in response to secretive and corrupt officials of the past — visited upon their blameless “sons.”

I once observed an open records trainer suggest that Kentucky’s open records laws are “all about the money.” I’m still scratching my head about that one. Perhaps the trainer was referring to avoidance of statutory penalties for noncompliance.

I once observed an open records trainer explain the various ways public agencies can evade the requirements of the law — rather than complying with the law.

The common theme in these unproductive training sessions is that Kentucky’s open records laws are a nuisance — something less than a statutory duty that yields to the press of other agency business — in other words, a low priority.

“Discharge of open records duties is required by law,” I wrote as an assistant attorney general in 2001, “and is as much a legal obligation of a public agency as the provision of other services to the public.”

A far more eloquent Judge Irv Maze wrote for the Court of Appeals in 2016:

“The Open Records Act is neither an ideal nor a suggestion. It is the law. Public entities must permit inspection of public records as required or risk meaningful punishment for noncompliance. Rigid adherence to this stark principle is the lifeblood of a law which rightly favors disclosure, fosters transparency, and secures the public trust.”

Judge Maze expressly rejected the noncompliant public agency’s “obvious and misguided belief that the Open Records Act is merely an ideal — a suggestion to be taken when it is convenient and flagrantly disregarded when it is not.”

To what public agency was Judge Maze speaking in this landmark opinion?

It was the Cabinet for Health and Family Services.

What public records was the Cabinet determined to withhold?

It was records concerning child fatalities or near fatalities resulting from neglect or abuse of children under the supervision, control or monitoring of the Cabinet.

The stakes were never higher in an open records dispute. It was impossible to dismiss the importance of the open records law in exposing the Cabinet’s inability and/or failure to protect Kentucky’s most vulnerable — and the Cabinet’s attempted cover-up.

Coupled with the legislative policy recognizing that “free and open examination of public records is in the public interest,” and the judicial recognition that “the statute exhibits a general bias favoring disclosure,” this is where open records presentations must begin: “Rigid adherence to this stark principle is the lifeblood of a law which rightly favors disclosure, fosters transparency, and secures the public trust.”

Open records laws in Kentucky are the great levelers. They empower the public to hold elected and appointed officials accountable. They enable the public to “remain informed so they may retain control over the instruments that they have created.”

They “provide impetus for an agency steadfastly to pursue the public good.”

Louisville Metro Government officials and employees must receive training on their statutory duties — as well as the statutory rights of the public — along with judicial and administrative interpretations of these rights and duties.

But that training must seek to instill in Metro Government officials and employees an appreciation for the law that proceeds from the Kentucky Supreme Court’s early recognition:

“The right of the public to be informed transcends any loss of efficiency” and, incidentally, any de minimus cost in time, energy, and taxpayer dollars associated therewith.

The Kentucky Open Government Coalition stands ready to assist.

The legislature convenes on the third floor of the the Kentucky Capitol in Frankfort, photographed here the night of Jan. 4, 2023. (Kentucky Lantern photo by Arden Barnes)

“Adjourned sine die.”

The sweetest phrase in the legislative lexicon.

Open government advocates on March 30 breathed a sigh of relief as lawmakers departed the Capitol until noon, January 2, 2024 — certainly compared to a broad swath of Kentuckians who felt the sting of legislative injustice in the 2023 Regular session.

It was a session typified by supermajority secrecy and overt indifference to the public’s — and, in many cases, minority lawmakers’ — right to know, to participate and to be heard.

It was a session in which only one major bill directly and adversely impacting the open records law, SB 62, secured passage. It remains to be seen whether undetonated landmines are buried elsewhere.?

We have written, at length, about the dangers posed by SB 62, “The Personal Privacy Protection Act,” which creates a new exception to the open records law for “personal information.”

The term “personal information” is defined in the new law as “any list, record, registry, roll, roster, or other compilation of data of any kind that directly or indirectly identifies a person as a member, supporter, volunteer, or donor of financial or nonfinancial support to any nonprofit organization.”

Violations of the law may be prosecuted in the criminal and civil courts and carry substantial monetary penalties/damages.

According to its sponsor, Sen. Whitney Westerfield, SB 62 merely codifies a 2021 United States Supreme Court opinion — Americans for Prosperity Foundation v Bonta — in which the court’s conservative majority struck down a California law requiring charities to disclose to the state attorney general tax forms that include the names and addresses of their major donors “because it burdens donors’ First Amendment rights” of free association.?

Westerfield acknowledged that Kentucky law does not require the disclosure of? donors to the Kentucky attorney general in the regulation of charities. There is, in fact, no known Kentucky public agency — subject to the open records law — that compiles charitable donor personal information.

As the Kentucky Open Government Coalition noted in our statement of opposition to SB 62, “The problem is illusory. The threat to open government is real.”

When and how that threat will manifest itself is, for now, to be determined. We are slightly reassured that a similar, albeit more narrowly drafted, Virginia law enacted in 2022 targeted the same illusory problem and has not been misused or abused to date.?

But the lasting legacy of the 2023 Regular Session of the Kentucky General Assembly can be summarized in a single word: disenfranchisement.

Disenfranchisement, in the 2023 legislative session, meant exclusion of the public from all but the most carefully orchestrated legislative “debate;” suppression of dissenting voices; deprivation through brazen trickery and deceit, of a meaningful opportunity to participate and be heard; and secrecy on an epic scale.

It culminated in the arrest and shackling of protestors, many of them Kentuckians, in the legislative chambers. Kentucky’s supermajority sent a clear message that their fetish for advancing a reactionary agenda transcends the public’s right to know, to be heard and to participate.?

Clearly, “the formation of public policy is (no longer) the public’s business.”

“The people (no longer) retain control over the instruments that they have created.”

(News Leaders Association)

I will not celebrate Sunshine Week 2023.

Since leaving the Kentucky Attorney General’s Office in 2016, I have pursued open government as an avocation rather than a vocation. I have come to understand the importance of Sunshine Week as an annual celebration of public records laws securing the public’s right to know how their elected officials conduct the public’s business.

But as a former assistant attorney general, I experienced government from the inside and I despair for open government in Kentucky.

As darkness descends in our state and local governments, Sunshine Week increasingly feels like a Hallmark holiday — a Valentines Day for those who lament the fact that they have none, a Bosses Day for those who lament the fact that they do.

I cannot celebrate past open government victories — or feign optimism for open government’s future — in Kentucky. Our once enthusiastically endorsed and jealously guarded open records and open meetings laws are, in these times, regularly disregarded, discredited, disdained and even demonized — in actions if not in words.

No. I won’t celebrate Sunshine Week 2023.

What I will do, instead, is pledge — as a member of the Kentucky Open Government Coalition — to continue the fight to preserve the Kentucky open records and open meetings laws. I will continue to be that nagging voice that alerts the public to threats to our open government laws — threats emanating from out-of-state organizations that share ill-conceived and agenda driven “model” public records legislation, public officials, associations of public officials, legislators, attorneys general, and judges (some whose hands are tied by the combined efforts of all of the above and some hand picked and endorsed to advance their combined interests in undermining the public’s right to know).

As an esteemed colleague, Frank LoMonte, recently observed:

“It’s important for everyone invested in a well-functioning government — not just the few salaried journalists we have left — to take ownership of the right to be informed. I want everyone to see freedom of access to information as their own personal cause, not a cause that belongs to news reporters, because news reporters can’t win the battle against government secrecy alone.”

The latest offense to open government: Senate Bill 62

I’ll spend Sunshine Week 2023 monitoring last minute legislative maneuvers and hoping that no greater offense to open government than the largely unvetted and deceptively named “Personal Privacy Protection Act,”?Senate Bill 62, emergeres this session.

In spite of vigorous objections raised by the Kentucky Press Association and the Kentucky Open Government Coalition, the bill is posted for passage on Monday, March 13.

The sponsor, Sen. Whitney Westerfield, insists that SB 62 does nothing more than codify a 2021 United States Supreme Court case, Americans for Prosperity Foundation v Bonta, holding that a California requirement for non-profit organizations to disclose their donors to the state Attorney General was invalid because it burdened the First Amendment rights of the donoh

Westerfield acknowledges that there is no actual threat?in Kentucky similar to the threat addressed in the federal case. His solution looking for a problem has become the norm in Kentucky’s legislature.

But HB 62 is likely to create multiple problems in interpretation of existing open records law as delineated in the statements of opposition issued by the KPA and the Coalition.

The KPA objects that the bill ?will restrict “the right of the public and press to access what is deemed to be personal information of donors in court proceedings, with courts prohibited from allowing such information into the public record without first finding ‘good cause.'”

KPA attorneys express concern that courts “must default to sealing and redacting ‘personal information’ from the court record and closing otherwise public trials to the press and public if ‘personal information’ is presented.”

The KPA also expresses concern that “draconian penalties” for disclosure will “flood Kentucky’s courts with frivolous lawsuits designed to cash-in on an unwitting civil servant’s incidental disclosure of benign information and chill the production of nonexempt information in response to valid open records requests.”

The Coalition’s objections are premised on the potential that officials will improperly invoke the new categorical exemption for “personal information,” as narrowly defined in HB 62, to deny access to “personal information” that has generally been deemed accessible under the open records law privacy exception — KRS 61.878(1)(a) — where the public’s interest in disclosure outweighs the privacy interests that may be implicated by disclosure.

For example, in 2008 the Kentucky Supreme Court determined that identities of donors to the non-profit University of Louisville Foundation were not protected by the privacy exception since the public “has a legitimate interest in the amounts and sources of monies donated to the [University of Louisville] Foundation which ultimately funds the University.”

Under SB 62, donors could avoid disclosure of their identities by requesting anonymity from the nonprofit organization.

The great body of Kentucky law construing the personal privacy exception — which turns on an examination of competing public and private interests — is threatened by a categorical exception like the exception for “personal information” found in SB 62.

Keep on fighting for open government laws

I’ll also spend Sunshine Week 2023 assisting those who reach out to better understand their rights under Kentucky’s open records and meetings laws.

I’ll spend Sunshine Week 2023 speaking (by Zoom) about the threats to open government in Kentucky to a group of concerned citizens. And I will write — without influence or fear of retribution.

And while there is breath in my body, and/or the synapses are still firing, I won’t give up the fight.

I (we) owe no less to all of those who came before us and who fought the good fight for Kentucky’s open records and open meetings laws.

Sen. David Givens, flanked by other lawmakers, discussed the work group's recommendations on Feb. 2. (Photo for Kentucky Lantern by McKenna Horsley)

Across the nation — ?and particularly in Arizona and Mississippi — opposition is rising to state legislatures’ direct and indirect efforts to exclude themselves from public oversight.

A chorus of newspapers, including The Washington Post, have exposed — if not decried — this groundswell of legislative secrecy.

For nearly a half century, Kentucky’s open records and open meetings laws applied, in law if not in practice, to the Kentucky General Assembly and the Legislative Research Commission (LRC).

Over time, we ignored lawmakers’ flagrant abuses of the open meetings law, effectively throwing in the ceremonial towel.

The most recent example of abuse? The Department of Juvenile Justice work group — “created during the first week of the 2023 General Assembly, following passage of a resolution, amid concerns over a wide variety of issues within DJJ” — has conducted critical public business, and arrived at a series of recommendations, entirely behind closed doors.

This prompted Gov. Andy Beshear to observe that the workgroup “met behind closed doors. What they requested was to have certain employees walk into a room, close it with no recording, and no one else with them. That’s not reasonable. If we tried to act that way in the Executive Branch, it would violate the Open Meetings Act.”

Who, honestly, can say? The workgroup was so shrouded in secrecy, it is difficult to make an accurate legal assessment

“We are morphing into a parliamentary system, where members vote the way the party tells them to vote,” a dissenting Mississippi lawmaker recently noted in reference to developing legislative secrecy in the Magnolia State. Lawmakers “are fungible goods. They’re in an echo chamber. There’s no one to stand up and say, ‘this is a bad idea.’”

Kentuckians were relatively lucky. From 1976 — when Kentucky’s open records laws were enacted — to 2021, we were vested with an enforceable right to hold Kentucky lawmakers accountable through their records — legally if not practically.

In 2021, that changed. Kentuckians permitted lawmakers to strip us of our statutory right of access to legislative records through the open records law.

With little organized opposition, and only a muffled outcry, we yielded nearly 46 years of our sovereignty to Kentucky’s lawmakers — allowing elected representatives in the General Assembly to decide what is good for us to know and what is not good for us to know.

Mind you, Kentucky’s lawmakers jealously guarded their records through the years — almost as if they had something to hide!

Indeed, in September 2021, the Kentucky Supreme Court forcefully reminded the General Assembly that legislative records belong to the public. The court rejected that august legislative body’s Declaration of Independence from the open records law in a case involving access to an LRC staffer’s sexual harassment complaint against Kentucky Rep. ?Jim Stewart.

But by then it was too late. The open records law — enacted by the General Assembly in recognition of the fact that “the formation of public policy is public business” and that “free and open examination of public records is in the public interest” — had been statutorily preempted by a state legislative “records access” law that applied to only a handful of already public legislative records and provided limited access at best.

Having eliminated in 2003 the public’s right to appeal denial of access to legislative records to the Attorney General’s Office, state lawmakers in 2021 also eliminated the public’s right to appeal denial of access to legislative records to the courts.

Would that there had been equally extensive state and national coverage of legislative secrecy then as now.

In the end, greater legislative transparency — in Kentucky and elsewhere — is an imperative.

(Getty Images)

Move along, folks. Nothing to see here.

Just another attempt by Kentucky lawmakers to take from the poor and give to the rich.

The pretext for this most recent money grab is the “huge burden on the health-care system when it comes to medical records” and a promise to “lower overall health care costs.”

HB 51, sponsored by Rep. Kim Moser, R-Taylor Mill, chair of the House Health Services Committee, is described as an act to “[a]mend KRS 422.317 to establish standards and procedures for access to copies of patient medical records.”

Fair enough.

But the bill goes further.

It eliminates a patient’s nearly 30 year old right to obtain one free copy of the patient’s medical records from hospitals and health-care providers — and a second copy for no more than $1? per page — “upon request either by the patient or the patient’s attorney or the patient’s authorized representative.”??

With limited exceptions, Moser’s bill establishes a prepaid fee “not [to] exceed twenty dollars for medical records five pages or less in length and one dollar per page for each page copied after the first five pages and the actual cost of mailing.”

The law Moser proposes to change, KRS 422.317, was enacted in 1994 in response to mounting concerns about unconscionable fees imposed on patients by hospitals and medical providers for copies of their own medical records. This included hospitals and medical providers that outsourced copying of the patients’ medical records to profit-driven vendors and thereafter demanded prohibitively excessive fees.

It was an issue that regularly presented itself to the Office of the Attorney General in the context of excessive copying fee disputes between public hospitals and patients. The open records law limits copying fees to actual costs incurred, excluding staff costs.

These disputes culminated in the 1995 case, Hardin County v. Valentine, in which the Kentucky Court of Appeals refused to treat medical records in the custody of a public hospital as public records — subject to the reasonable fee provision of the open records law — permitting Hardin Memorial Hospital to recover the actual and reasonable expenses incurred in reproducing the records, including personnel costs, but excluding “‘billing and bad debt expense’ and ‘space expense,’ because they were expenses not actually incurred.”

Noting the passage of KRS 422.317 as the litigation proceeded, the court in Valentine twice emphasized that that “while $1.00 may be reasonable for one of a few pages, other considerations become relevant for copying large records.”

In 2013, the Kentucky Court of Appeals revisited KRS 422.317, rejecting a claim that the statute was unconstitutional.

The court held:?“Placing this minimal burden on health care providers is rationally related to the legislature’s objective of ensuring that all patients, including the economically disadvantaged, have free access to one copy of their medical records.” The court was satisfied that “the state interest in providing medical records to patients outweighs any minor inconvenience to the providers.”

Rep. Moser is not. She proposes a return to those halcyon days of what will be, at least for some, cost prohibitive copies of their own medical records.

Although there are no laws in Kentucky establishing the ownership of, or a property right in, medical records, it is clear that the information they contain belongs to the patient and that it cannot be shared without the patient’s approval. The patient should not be denied access to, or a copy of, those records, because the patient lacks the financial resources to pay for them.

It is doubtful that, if enacted, HB 51 will do anything to relieve the purported “burden” on hospitals and health-care providers or lower “overall health-care costs.”

But there can be no doubt that — as past lawmakers and the courts recognized — it will harm economically disadvantaged patients.

Inside the Kentucky Capitol, where the Liberty faction of the GOP supermajority is angling for more seats. (Photo by Getty Images)

Kentucky lawmakers faced a dilemma in 1975.

One year earlier, they enthusiastically enacted an open meetings and an open records law aimed at restoring the public’s trust in government. Years of deception associated with the Vietnam Conflict and clandestine and illegal activities by the Nixon administration — collectively referred to as the Watergate scandal — prompted Kentucky’s General Assembly, and a number of state legislatures across the country, to enact laws securing the people’s right to “remain informed so they may retain control over the instruments that they have created.”

But doubts emerged that the newly enacted open records law “would provide inadequate protection of records containing information of a personal or private·nature concerning individuals and businesses,” prompting then-Gov. Wendell Ford’s 1974 veto.

?A November 1974 Kentucky Court of Appeals opinion, City of St. Matthews v. Voice of St. Matthews, established “the general principle that government records would be open to public inspection, unless an overriding public policy warranted confidentiality” suggesting the need to pump the brakes on open records legislation.

Some lawmakers — among them Rep. Joe Clarke of Danville — nevertheless “felt the need for legislation to make public records more accessible.” Clarke commented that the need for a “bill has grown out of the frustration that citizens feel when — after participating in the process of electing a representative government — elected officials act as if the government belongs to them rather than the people.” He and other lawmakers?recognized that “the St. Matthews decision did not adequately address three major questions: What is a ‘public record’? What public records should be exempt from disclosure? [And u]nder what guidelines will public officials operate in allowing citizens to inspect public records?”

Courageously, the Interim Joint Committee on State Government’s Subcommittee on Open Records, chaired by Clarke, openly and transparently moved forward in 1975. Along the way, the subcommittee “solicited the viewpoints of public officials and concerned citizens on the basic issues and on initial drafts of legislation.” Most “favored the general principle of open access to records.”

While not considered the nation’s strongest public records law, the resulting Kentucky Open Records Act, enacted in 1976, provided a durable legislative framework that admirably fulfilled its function and adapted to dramatic changes in records-keeping practices and technology along the way.

Over time, the law required very few legislative “fixes.” The 1994 revisions to the law, aimed at addressing the proliferation of electronic public records and commercial use of public records, resulted from an open, collaborative process that yielded a positive outcome.

Once again, Kentucky lawmakers solicited broad input, excluding no one from the table. Serious questions arose when they did not — as in 2012, when lawmakers quietly narrowed the definition of “public agency” under highly suspicious circumstances with no input from public stakeholders.

Fast forward some 25 years and an ascendant majority party began a steady — and secretive — assault on the open records law that was calculated to avoid public notice and opposition. When caught with their hands in the “public records cookie jar,” the new majority derisively dismissed open government advocates’ concerns that “the sky is falling.”

Lawmakers’ covert efforts culminated in 2021’s HB 312, a bill that did far more unquestionabe harm than questionable good by establishing a “residents only“ requirement for use of the open records law and entirely excluding the General Assembly and Legislative Research Commission from the open records law.

“This whole session’s been done in secret,” lamented Jon Fleischaker, Kentucky’s most widely recognized open records expert and advocate in 2021. Added the Kentucky Open Government Coalition, “It was very cloak and dagger” and “purposefully kept under the radar.”?

Lawmakers sabotaged open records and open meetings in an equally secretive manner in the 2022 regular session of the General Assembly.?

As the 2023 regular session of the General Assembly approaches — with the promise of even greater stealth to secure even greater secrecy — the launch of the Kentucky Lantern, part of States Newsroom is heartening.

Four new sets of journalists’ eyes are a welcomed addition to an overworked Capitol news corps as well as a hoped-for antidote to the secrecy that pervades Frankfort.