Speculating on the future of Kentucky’s open government laws under Attorney General-elect Russell Coleman may be premature, even unfair, but it has been suggested that we undertake an evaluation based on what we know.
Coleman spent the majority of his career in federal law enforcement, working later as a private practitioner with Louisville’s Frost, Brown, Todd. By virtue of the former, he can be no stranger to the federal Freedom of Information Act — a law that draws its inspiration from the recognition that “the United States is an open society in which the people’s right to know is cherished and guarded.”
The same policy informs Kentucky’s open records law. Our law recognizes that “[f]ree and open examination of public records is in the public interest…even though such examination may cause inconvenience or embarrassment to public officials or others.”
Amye Bensenhaver
But Coleman’s experience as a former special agent for the the FBI, and as United States Attorney for the Western District of Kentucky, may color his views about the value of the “people’s right to know” versus the need for governmental confidentiality.
NEUTRALITY IN RESOLVING OPEN GOVERNMENT APPEALS
Neutrality and impartiality are fundamental to the Attorney General’s statutorily assigned role as first-line reviewer of open records and open meetings appeals. This is no less true in the context of access to public records in ongoing law enforcement actions — an issue currently before the Kentucky Supreme Court and one on which his predecessors — those, at least, with whom I worked — made their law enforcement biases clear.
With few exceptions, they “erred on the side of nondisclosure” in open records appeals involving public records in “ongoing” law enforcement actions, notwithstanding the fact that the governing open records exception’s required a showing that “disclosure…would harm the agency…by premature release of information to be used in a prospective law enforcement action.”
Even after the Kentucky Supreme Court rejected wholesale nondisclosure of the public records in an open investigatory file “merely because it pertains to a prospective enforcement action,” the OAG largely ignored the requirement that law enforcement agencies “articulate a factual basis for applying an exemption (see subection (1)(h), explaining how the release poses a risk of harm to the agency in a prospective action.”
Indeed, Coleman’s immediate predecessor abandoned any pretense of neutrality in open records disputes involving open law enforcement investigations — neutrality which, as noted, the open records law requires of the Attorney General in discharging his statutory duty to review open records appeals — when he filed an amicus brief with the Supreme Court advocating for law enforcement’s position in Shively Police Department v. The Courier Journal, Inc.
This unprecedented move sent a clear message that Daniel Cameron could not be trusted to remove his chief law enforcement officer “hat” and replace it with his neutral reviewer of open records appeals “hat” that Kentucky’s open records law clearly envisions.
Courier Journal columnist Joe Gerth’s latest commentary focuses on Coleman’s firm insistence that he “backs the blue.” Nothing wrong with that, Gerth notes, but “[m]aybe Coleman just needs to say he’ll back the Black and the blue,” — those who fall into the broad category of “the weak and the vulnerable,” just as “our laws and our Constitution expect.”
We can only speculate on the voices pouring anti-transparency entreaties into the ear of the Attorney General-elect. Some of those voices may belong to the advisors who pointed Cameron in this ill-advised direction. Others may belong to former Bevin advisors who waged war on open government for four long years and still represent a threat to the public’s right to know.
He would do well to listen to some other voices.
COLEMAN SHOULD, AS PROMISED, CONSULT WITH CAREER STAFF IN OPEN GOVERNMENT MATTERS
Two members of Coleman’s transition team — Wil Schroder and Andrew McNeill — have public track records that suggest support for the open records and open meetings laws.
As a state Senator, Schroder sponsored one of the earliest bills aimed at expanding open records opportunities by requiring public agencies to accept emailed records request. He voted against the 2021 bill excluding the General Assembly and Legislative Research Commission from the open records law and adding a residency requirement for users.
As a policy fellow for the Bluegrass Institute, and in his current role as president of KY Forum for Rights, Economics & Education, Andrew McNeill has utilized the open records law to expose uncomfortable details about the General Assembly’s “$35 million taxpayer-backed forgivable loan to the University of Louisville” and a “$6 million handout to an Ohio hospitality hedge fund to renovate the Seelbach Hotel.” He has advocated for legislative reform aimed at “giving the public ample time to learn the substance of legislation before votes are cast by their representatives.”
Neither should abandon his belief in the value of the state’s open government laws — and expanding the public’s right to know — to curry favor with non-career staff office holdovers.
As Coleman assumes his new role, Schroder’s and McNeill’s input could be vital in drowning out the anti-open government noise of Cameron holdovers.
Importantly, Coleman is the first candidate for Kentucky Attorney General to acknowledge that state open government laws are “’an area that I have a lot to learn’ and that he would refer to some of the career staff in the office on these issues.”
Kentucky personnel law defines a career employee as an employee “with (16) or more years of permanent full-time state service, or the part-time employment equivalent of at least (16) years of full-time state service.”
As he has committed, Coleman should consult with career staff in discharging his statutorily assigned open records and open meetings duties. Their voices will restore a measure of neutrality — and, dare I say it, institutional knowledge — that has been sorely lacking in the Cameron administration.
LET THE LAW BE COLEMAN’S GUIDE
Earlier this year, the Oldham Circuit Court admonished Daniel Cameron for ignoring precedent when it conflicts with his policy preference for secrecy in government.
The court expressly rejected the current Attorney General’s penchant for “overturn[ing] decades of decisions by both the Attorney General and the Kentucky Courts.” “[M]ost troubling,” the court noted, “is [that Cameron] 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 commentary applauding the Oldham Circuit Court’s opinion, the Kentucky Open Government Coalition quoted United State Supreme Court Associate Justice Benjamin Cardozo:
“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.”
Anticipating the November elections, we wrote:
“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.”
The election having ended in Coleman’s victory, here is a reminder that Kentuckians 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, Coleman, “arbitrarily shut off the light.”
We must keep the light shining on the Office of the Attorney General, and its new office holder, and retain a hope — even in our overwhelming skepticism — for measurable improvement from Russell Coleman in discharging his statutory duty to review open records and open meetings appeals.
Amye Bensenhaver is a retired Kentucky assistant attorney general who wrote open records and open meetings decisions for 25 years. She is co-founder and co-director of the Kentucky Open Government Coalition.
