Once upon a time, fifty years ago, in fact, Kentucky joined all states in enacting what are called Sunshine Laws intended to give transparency to the operations of government.
There is no doubt that the Kentucky law has performed quite as intended by its promoters. The realization among elected and appointed officials that the public’s business should be conducted in public has made for better state and local government.
In the Open Records part of the Sunshine equation, what is revealed by government documents is one important measure of the performance of the office-holder.
The broad sweep of the Open Records law has served the cause of transparency in government, full stop.
But what has been lacking in the narrative about the law are some of its less- desirable side effects, its collateral damage.
The law makes little distinction of one requestor from another. The everyday Kentuckian has the same right to request records as the star reporter. Requestors can make as many requests as they choose.
The last fact deserves elaboration. Under the Open Records law, one requestor can make open records requests simultaneously of agencies in all 120 Kentucky counties, all 411 Kentucky cities, 125 cabinets, departments and agencies of state government, 171 public school districts, and hundreds of special-purpose government entities, such as sanitation districts, every day of the week, every day of the year.
Every request must be given equal dignity by the agency from whom records are sought, and the law requires that a request be acknowledged within five days of receipt, and the basis asserted if claiming extra time to fulfill it. If the records requested are voluminous, the agency must make its substantive response as soon as possible.
There is a high-functioning appeals process lodged in the Kentucky Attorney General’s office for disappointed requestors, and the right of appeal is available from the Attorney General’s decisions to the requestor’s local circuit court.
These exception to disclosure, or requirement for certain redactions, include:
• Records in police investigative files, disclosure of which might compromise
current criminal investigations, including the identities of confidential informants;
• Records containing personal identifiers of individuals, as per federal and state
law on the subject;
• Protected personal health-care information barred from disclosure under the
Health Insurance Portability and Accountability Act (“HIPAA”);
• Records involving juveniles;
• Records, if revealed, would compromise jail or prison security;
• In cases of requests to government lawyers, such as commonwealth attorneys and county attorneys and their staffs, all requested public records must be screened to protect the confidentiality of attorney-client communications.
Each and every document subject to an Open Records request must be screened to determine whether it must undergo redactions or be withheld altogether. The exceptions are to complied with the same as the Open Records law itself.
The operation of the law, perhaps especially since the legislature allowed for requests to be made by email, has created a sort of wild west in the world of open records.
Some examples:
• A gentleman serving a long prison term in a case involving the sexual abuse of children requested transcripts of the interviews of the witnesses against him. The juveniles are adults now and the prohibition against disclosing juvenile records shouldn’t apply, he argued. His request was denied, and the gentleman appealed to the Attorney General. His appeal was a few words hand-written on a form apparently circulating at the prison, and was dismissed.
• A requestor demanded from the county clerk records of boil-water advisories, animal-control contracts or agreements, plus general-election results for 2024, resolutions from cities authorizing the sale of medical cannabis, a sample election ballot, and the ballot language for constitutional amendments in one recent year. He was told that the county clerk does not maintain the first two sets of records, and when supplied with the election data, the requestor responded that he hadn’t intended to send the requests to “you guys.”
• Another requestor demanded a tremendous volume of police records, for an entire calendar year. The chief attempted to contact the requestor to see if what he was after could be reduced to something more manageable. The requestor could not be reached by phone, and did not respond to emails. He was then emailed a letter expressing that the police agency was not going to undertake to retrieve the records if his location – indeed, his personhood – could not be verified. Was he a bot?
• A candidate for local office pummels the city in which she is running with requests for hundreds of documents, all of which must be vetted individually to comply with the exceptions to disclosure. The serial requests are apparently a campaign tactic.
Enhanced by artificial intelligence, open records requests are bolstered as if on steroids by means of a few phrases directed to Chat GPT.™
It may rile up some journalists, a society to which the writer has belonged for 55 years, but seeing what local government must do to comply with the Open Records Act, an earlier set of presumptions about the effect and operation of the law have become suspect, and the operation of the Open Records law is seen in a darker light.
Those presumptions include:
• That public officials, even though elected by popular vote or appointed by someone who won a popular election, are all suspected scoundrels who don’t want the written record of their perfidies revealed to the public;
• That when exceptions to disclosure are invoked is when public officials are trying to hide something;
• Public officials conceal untold outrages against the common good by relegating the written record of them to their personal devices.
Anecdotal evidence from around the çommonwealth suggests that the same excesses are routinely visited upon local and state officials.
It’s OK to be wary of government. It is cynical, prejudicial, in fact, to regard all public officials in these terms, in Kentucky or almost anywhere.
What is to be done about the excesses created by the misuse of the Open Records law? A set of modest reforms might include:
• The requestor should be required to prove his or her identity, including an address – a copy of both sides of a driver’s license should suffice;
• If a requestor loses two appeals to the Attorney Gen ral in a calendar year, the requestor would be barred from making new requests for the ensuing year;
• Extending the response time from five days to fourteen;
• Extend the time to respond to appeals to the Attorney General from five days to fourteen;
• A reexamination of the portion of the law that bars governments from recovering the actual cost, including the value of employee time, in finding and retrieving requested records;
• The discovery process in civil litigation is available to ask questions and request documents from an adverse party. Parties prosecuting lawsuits against a government agency should not be allowed to make open records requests while such a suit is pending.
These modest reforms would reallocate some of the costs of complying with the Open Records law, now borne almost exclusively by the taxpayer, and shift some to the requestor.
Sunshine and open government are fine concepts, in theory. The Kentucky law was not intended to be an instrument by which public officials are abused. Some sensible reforms of the law are in order.
Jim Dady, a lawyer-journalist, is an Assistant Campbell County Attorney. He lives in Bellevue.