Kentucky’s open records law is not a ‘nuisance.’ It’s a force for ‘public good.’
by Amye Bensenhaver, Kentucky Lantern/Kentucky Open Government Coalition
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.
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.
Kentucky Lantern is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Kentucky Lantern maintains editorial independence. Contact Editor Jamie Lucke for questions: email@example.com. Follow Kentucky Lantern on Facebook and Twitter.
Photo: Kentucky state capitol dome. (The Lexington Times)