It shouldn’t matter who wants to see public records

Published 3:48 pm Monday, January 14, 2019


Guest columnist

A bedrock principle of the open records law has recently come under fire.

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BR 821, pre-filed by Danny Carroll (R-Paducah), was quickly withdrawn after access advocates vociferously criticized the bill. Among other offensive proposals, the bill would permit courts to impose agency attorneys’ fees on open records requesters in cases in which the court found the requesters’ purpose “improper.” The latter term was vaguely defined as a request submitted for a “frivolous purpose.”

Asked what he thought of the bill, CNHI reported on January 10, Gov. Bevin responded, “I think what should be looked at is: who’s asking for what.” He noted that “outside groups that are around the country that don’t have any presence or direct-seeming interest in Kentucky” use the law to advance a political agenda/candidate, requesting “reams and reams and reams of information that take hundreds and thousands of hours sometimes” for public agencies to fulfill. Such requests, the governor suggested, impede the Kentucky media “who are asking legitimate questions about information.”

“What” is being requested is a legitimate focus of any open records analysis. “Who’s asking” is most certainly not.

Kentucky’s open records law guarantees the right of “any person” to inspect and copy any non-exempt public record. Analysis of an open records dispute between a requester and an agency resisting disclosure, a 1994 open records case declared, “does not turn on the purposes for which the request for information is made or the identity of the person making the request” since “the legislature clearly intended to grant any member of the public as much right [of] access to information as the next.”

In opinions dating back to the 1980s, the attorney general emphasized that “agencies should have uniform policies regarding inspection of their records. If one person (in the absence of a court order) is allowed to inspect a record, all should be allowed to inspect … It is the content of the record itself which makes it either mandatorily accessible to public inspection and copying or exempt from the mandatory requirement.”

Simply put, “selective disclosure” of public records violates Kentucky’s open records law.

Not all state sunshine laws guarantee access without regard to the requestor’s identity or purpose. Tennessee, for example, limits records access to residents of the state and requires proof of residency as a condition to access. This aspect of Tennessee’s law has been severely criticized.

There are, of course, reasonable limits on Kentucky’s “identity/purpose neutral” open records law.

In the 1990s, lawmakers amended the law to permit public agencies to recover higher copying fees for reproduction of public records requested for commercial use, defined as “any use by which the user expects a profit either through commission, salary or fee.” The definition expressly excludes use by print or electronic media, for the purpose of broadcasting the news, and use in litigation and claims settlement. Since that time, agencies have also been permitted to verify the requester’s intended commercial use, require a contract for the intended commercial use, and obtain penalties for misrepresentation of the intended commercial use.

Lawmakers have also erected substantial barriers to the rights of prison inmates to inspect public records. And Kentucky’s statutes contain an ever-growing body of confidentiality statutes, such as those  governing access to accident reports, that authorize inspection of certain public records by certain identified subsets of requesters only.

As for open records requests for “reams and reams and reams of information that take hundreds and thousands of hours sometimes” for public agencies to fulfill, the open records law already contains an “unreasonable burden/intent to disrupt essential agency functions” exception that authorizes public agencies to deny such requests if the agencies can substantiate this basis for denial by “clear and convincing evidence” — a “high proof threshold.”

“The clear and convincing standard which is built into this provision is sufficient,” the attorney general  observed in the 90s, “to discourage abuse by public agencies. In other words, the provision is expansive enough to authorize judicious use, where warranted, but narrow enough to prevent profligate use, where unwarranted.”

Kentuckians should resist legislative efforts to empower the courts to decide that a request is improper under a vague standard of frivolousness or any standard other than those that currently exist. We should also resist efforts to empower agencies to consider the identity of the requester in responding to a request or to evade a request because the response requires “time and manpower.” These core principles of Kentucky’s open government laws should not be disturbed.

Amye Bensenhaver is a former assistant attorney general who specialized in open meetings and open records law. She is an advocate for government transparency and accountability.