Beech Tree News Network

Government watchdogs are celebrating this month the 40th anniversary of the Kentucky Open Records Act. It has withstood the test of time as an indispensable tool for a variety of individuals and interest groups seeking to hold public officials accountable.

The open records law changed everything when it went into effect in June 1976 in the midst of the  general environment of distrust in government that began a decade earlier. Before it was signed into law by Gov. Julian Carroll, local governments could easily hide their spending, state agencies could bury their mistakes, elected and appointed officials could more easily abuse their powers.

But the law established a process through which anyone can formally request public records and a legal remedy when any request is improperly denied. It placed the state attorney general's office in charge of enforcement, and it gave the office's rulings the force of law.

The law clearly summarizes the policy it employs, stating that the General Assembly believes “free and open examination of public records is in the public interest,” and any exemption in the law should be strictly construed, “even though such examination may cause inconvenience or embarrassment to public officials or others.”

Birth of a bill

Jon Fleischaker, an attorney representing the press and a principle author of the legislation, recalls the atmosphere in the years leading up to the effort: “You start with the Vietnam War, which breeds a lot of distrust in government, and you had the civil rights movement and unrest, and between those two you had a lot of real advocates trying to get in and open up government. And then you had Watergate, which bred a substantial amount of distrust in government, and properly so. You had those three things coming together in the early 70s.”

The climate was ripe for legislation that would create transparency. Fleischaker said the first effort was to write and pass the Open Meetings Act. “We got that done in 1974,” he said. “That was done pretty easily. … The issue then became an open records law. Everybody thought there was a lot more information, a lot more stories, a lot more that people needed to know through open records than through open meetings.”

There was some reluctance at first on the part of a few reporters at the state's largest newspaper. They worried that a law forcing officials to turn over documents might damage the relationships they had developed with sources who would supply the information they needed “off the record.”

“They thought the old way was better, and that this was additional aggravation,” Fleischaker said. “They were proven wrong. We've had tremendous success on things that reporters never would have gotten before the open records law.”

With the support of The Courier Journal, a “test case” was brought against the City of St. Matthews in Jefferson County. “We basically lost,” Fleischaker said. “A very narrow, narrow slice of records were available but not the ordinary kind of things you and I can now get under Open Records, so the decision was made to try to get this new legislation done.”

Fleischaker and Bill Cox, an assistant executive editor at The Courier Journal, began to draft the legislation. They approached the process with the idea that the public — not just the press — is entitled to everything. “We got as many state statutes as existed at the time, and we had the (federal) Freedom of Information Act, and then we started putting it together basically as, 'How do we make everything stronger?'” The definition of open records was to be broad, and even then it included electronic records.

They eventually sat down with an assistant to the governor over a period of three or four meetings, and hammered out a final draft without many changes. The only other party present was Tony Wilhoit, a legal advisor to the Kentucky State Police.

Once the bill was drafted, it was sent to the governor's office. Fleischaker said the Kentucky Press Association and Barry Bingham Jr., publisher of The Courier Journal, had a commitment of support from then governor Julian Carroll. “Life was different then,” he said. “Those were the days when the governor mandated what was passed.” There was no prolonged legislative battle, and Fleischaker said Carroll deserves credit for sticking with his campaign promise to support the effort.

The reaction

Records didn't immediately begin to pour out of government buildings and into the stories on news pages, however. It took a while even for the press to get used to having a little more leverage. And then there were the government agencies and officials.

“It took a long time to start breaking new ground,” Fleischaker recalled. “I did a lot of seminars and lectures. Still do.”

As expected, the first cases came out of inquiries by The Courier Journal. “We were pushing things that seem obvious today,” Fleischaker said. One was a denied request from the Jefferson County Board of Education for its budget. The school district tried to claim the budget would not be complete until the money was spent. The newspaper won.

Ground was broken in the early 80s when the Kentucky Medical Licensure Board was sued to gain access to complaints filed against doctors. Settlements in lawsuits of all kinds against government agencies, lawsuits that had been kept confidential, became public knowledge. Court records also were subjected to more scrutiny.

“When the law was passed, I was convinced it would primarily benefit the media, but it turns out it is used just as much by others,” Fleischaker said, noting that, among others, defense attorneys rely heavily on access to public records. So do special interest groups, like those that keep watch on education and the environment.

Assistant Attorney General Amye Bensenhaver has been writing opinions on the Open Meetings and Open Records laws for 25 years, which means her name likely appears at the bottom of more opinions than anyone.

“Someone told me there were 10,000 (opinions) on our website,” she said, which means there are 250-300 written each year. She thinks her contribution is probably about 1,500-2,000. “I was the first hired to do it on a full-time basis in 1991,” she said. “We've since added two more full time and could use another.”

Bensenhaver confirms that the law is widely used, and not just by the media. “I don't think the media uses it any more frequently than any other group,” she said. “It's been interesting to watch. There's really no constituency overly represented.”

A report resulting from an open records audit conducted in October 2004 highlighted the efforts of one citizen who had filed some 500 requests to each of the state's 120 counties seeking information on animal control issues. Another citizen used the law to shine light on a nonprofit foundation that had been secret for 40 years.

The audit was a coordinated effort of the press association, The Associated Press, several newspapers, professional groups and state universities. It found that after 28 years most agencies were complying with the law, but there were areas of concern. Many jails, for instance, were resistant to requests for records about who was incarcerated. Cities were the most compliant.

Fleischaker, whose office operates a Freedom of Information hotline for members of the Kentucky Press Association, says the law has put a “big, big weapon” into the hands of community newspapers, who use it to go after stories they never would have considered before.

Enforcement

Asked if the attorney general's office has consistently enforced the law over the years, Fleischaker said politics enters the equation. “I won't say it has been erratic,” he said. “It depends on who the attorney general is. You can tell when politics plays a part. When you go after certain agencies, you can see waffling from the attorney general, but not from the courts. That's something a lot of other states don't have. You can go straight to the courts. You don't have to go through the attorney general.”

Fleischaker says a weakness in the law is in the awarding of penalties, or the lack thereof. “Until a couple of years ago, I would have said (the biggest weakness) is not getting mandatory attorney's fees (when cases go to court), but we're getting some very good opinions now awarding attorneys fees.”

Another weakness is that the public agencies fighting back are using taxpayer money to defend themselves. “It's a one-sided contest, and that's not really fair.” He added that he would like to see individuals held accountable, not just the agency.

Bensenhaver cited the limitations placed on one interest group from which she sees a lot of requests. “Certain inmates are really recurring users,” she said. “It's unfortunate because they have virtually no right of access. They're so constrained in what they can get. … Correctional facilities are not held to the same standard of accountability, because they have this separate statute that basically says they don't have to disclose anything if they deem it to constitute a security risk.”

Updates

The Open Records Act was strengthened by amendments in 1986 and 1992, the latter giving the attorney general's rulings the force of law, but its broad definitions were the key to its longevity and adaptability to new technology and forms of communication. Updates are needed, Fleischaker said, but not because of the digital age.

“The definitions cover electronically stored information,” he said. “What may need to be updated is how long they are maintained, providing mandatory access to volunteer members (of boards and commissions, etc.) using private phones to do public business. That's what's happening.” He said the maintaining of texts and other kinds of transmissions would be desirable. “At the same time, I'm aware of old-fashioned efforts to avoid going public, too.”

Bensenhaver said the biggest challenge of the digital age for the attorney general's office has been email, which created a massive amount of records that may be considered open, often increasing the time it takes for an agency to comply.

And then there's the increased awareness of the law and how it works. But even a changing emphasis on the law can be seen from administration to administration. Today, for example, there is no reference to the Open Meetings and Open Records laws on the homepage of the state attorney general's website. During previous administrations, there were links to information about the law, how to file a request and even a sample letter. There also was easy access to a search engine that would produce opinions based on a keyword.

“People are becoming better at using the two laws (Open Meetings and Open Records) together to get information,” Fleischaker said. “It's a learning experience. We're now in the third generation of reporters since the law was passed.” He said journalism schools, who were slow at first to teach the law, now have college journalists making requests from their own trustees. “We're getting a lot more sophistication” in the process, he said.

Fleischaker called the KPA's efforts “huge,” not only in supporting the law, helping to train journalists, and keeping open government top of mind, but in encouraging its members, large and small, to take action with the assistance of its Legal Defense Fund. Member newspapers can get financial assistance in legal actions brought against them in their fights to gain access to public records.

KPA Executive Director David Thompson said the organization's support of efforts to make government more transparent is perhaps its most important mission, mirroring that of its members. “Our members consider themselves government watchdogs first and foremost,” Thompson said. “They consider it a chief responsibility to their readers and their communities, and we are happy to lead the charge in making that easier.”

By JOHN A. NELSON

KPA Past President

About Jon Fleischaker:

Jon Fleischaker is Chair of the First Amendment & Media Practice Group. Jon is the former Managing Partner for the Louisville Office. Jon has more than 40 years of experience in media law and First Amendment cases, actively involved in representation of newspapers and broadcasters dealing with publication issues. He has been the most visible attorney in Kentucky in dealing with First Amendment concerns. Jon also has extensive employment litigation experience, including class actions and individual cases. In addition to numerous appellate cases, he also has participated in 99 cases in the U.S. District Courts. In addition to his law practice, Jon remains active in the community. Most recently, Jon was recognized by the Department of Public Advocacy and the Louisville-Jefferson County Public Defender Corporation for his pro bono service in support of the constitutional rights of the poor and needy of Kentucky. In 2008, Jon and his wife, Kim Greene, created the Fleischaker-Greene Fund for Excellence in First Amendment Issues at Western Kentucky University. The fund supports the Fleischaker-Greene Scholars Program and will give top students in the School of Journalism the opportunity to take an advanced special topics class once a year and bring nationally-recognized speakers in journalism and First Amendment issues to Western Kentucky University.

About John Nelson:

John Nelson has been recognized as one of Kentucky's leader sfor openness in government and quality in journalism during his career at weekly and daily newspapers.  Former executive editor of Advocate Communications, which includes The Advocate-Messenger in Danville and The Winchester Sun, dailies of which he was editor.  As president of the Kentucky Press Association in 2004, he oversaw the state’s first open-records audit and spearheaded a lawsuit to open juvenile courts and was named KPA’s most valuable member in 2006. He also served as president of the Bluegrass Chapter of the Society of Professional Journalists.  A native of Mayfield who grew up in Valley Station, he was assistant editor of The Citizen Voice in Estill County, then worked in the coal industry and completed his degree at Eastern Kentucky University, returned to the Citizen Voice & Times in 1986, and was editor and part owner of Pulaski Week in Somerset from 1987 through 1996.