Kentucky needs a citizen-based defense of sunshine laws
By AMYE BENSENHAVER and JENNIFER P. BROWN
Sunshine Week is upon us and with it the inevitable meteorological metaphors for open government climate change at the federal, state, and local level.
These metaphors carry meaning, especially in 2019. There is no better time than now for all Kentuckians to be aware of potential serious threats to laws that protect the public’s right to know how government agencies make decisions affecting all of us.
Sunshine Week has been observed since 2005. The celebration coincides with the birth week of the philosophical Founding Father of sunshine laws, James Madison.
It was Madison who famously declared, “Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.”
This, coupled with U.S. Supreme Court Justice Louis Brandeis’s oft-quoted statement that “Sunlight is said to be the best of disinfectants,” produced the meteorological metaphor enshrined in Sunshine Week.
Our meteorological survey in Kentucky begins with the four decades of sunshine that followed the enactment of the open meetings and open records laws in the mid-1970s.
Proponents of the law battled in the legislature and in the courts to ensure that conditions would be favorable for maximum sunlight.
The law underwent substantial revision by the General Assembly in the 1990s, virtually all of which was aimed at ensuring that the sunlight did not dim. The introduction of new exceptions to the rule of openness for the public good was rare — a homeland security exception enacted in 2005, for example, reflected the realities of the stormy times in which we lived.
In the courts, this period experienced a mix of sun and clouds. The courts issued opinions recognizing that sunlight must occasionally yield to darkness where the need for governmental secrecy is statutorily recognized, but the period from 1992 to 2016 produced a line of cases that largely promoted the idea of government in the sunshine.
In 1992, the Kentucky Supreme Court declared that where there is doubt about whether a record is exempt or nonexempt, that doubt must be resolved in favor of the public. This line of cases culminated in 2016, when the court sternly admonished public agencies that the law is “neither an ideal nor a suggestion,” that public agencies “must permit inspection of public records as required or risk meaningful punishment,” and that “rigid adherence to this stark principle is the lifeblood of a law which rightly favors disclosure, fosters transparency, and secures the public trust.”
Storm clouds were nevertheless gathering. A 2012 amendment to the law redefined the term “public agency” to permit certain private entities doing business with the state to hide in the shadows. A 2015 decision issued by the Kentucky attorney general enlarged this shadow by redefining “public record” to exclude public official communications about public business on private devices and accounts. This meant policy-makers at every level, including those on school boards, county health boards, fiscal courts and city councils can evade the spirit of the sunshine laws by using their cell phones and personal emails to communicate about the public’s business.
In 2018, the storm clouds descended as multiple new exceptions to the law were enacted. Those exceptions were aimed at preventing the public from exercising even limited oversight of the public procurement process based on the agencies’ belief that darkness — not sunlight — is the best disinfectant.
Casting an even darker shadow was a proposal to “codify” the attorney general’s clearly erroneous 2015 ruling by statutorily redefining the term “public record” to exclude discussion of public business on private devices or accounts. Opposition to the proposal led to its defeat, and the introduction of a less offensive, if wholly unnecessary, exception for “communications of a purely personal nature.”
Nothing prepared us for the stormy 2019 legislative session and the introduction of two major bills that, if enacted, might well have eclipsed the sunlight in Kentucky. Among other things, the bills would have limited use of the open records law to Kentucky residents; established multiple new exceptions to the law vastly restricting existing rights of access; permitted the legislature to act as final arbiter of access to its records; and imposed monetary penalties on agency records custodians who knowingly released “protected information” that far exceed the penalties their employers must bear if the custodians willfully withhold unprotected records
The press and the public loudly opposed these bills. It is believed we have weathered the 2019 legislative storm. For now, sunshine has returned to Kentucky.
But the forecast for Kentucky is gloomy.
The last two legislative sessions, in addition to pervasive public agency obstructionism, confirm that the sunlight is fading in Kentucky. We therefore propose that stakeholders across the commonwealth, and across party lines, join us in support of open government through participation in a citizen-based coalition. The sunshine laws were written to protect the rights of all Kentuckians, and it is more important than ever before that all Kentuckians unite in support of open government.
Our goal is to preserve, and perhaps expand, our existing rights under Kentucky’s sunshine laws through a renewed commitment in both word and deed. We encourage anyone interested in ensuring that the sunshine in Kentucky is not extinguished to join us in our efforts by contacting us by email.
Postscript: As this op-ed was being finished, and open government advocates breathed a sigh of relief at their successful efforts to beat back legislative efforts to undermine the public’s rights under the open records law, we learned that on the last day of the session, a new and unvetted exception to the law has been enacted as part of HB 354, at the cynical behest of the Department of Revenue.
The new exception expands the exception for records made confidential by enactment of the General Assembly to expressly include “information acquired by the Department of Revenue in tax administration.” It forecloses the public’s right of access to, among other things, unappealed final rulings issued by the Department in tax protests. Those rulings, as a form of legal “precedent,” might otherwise be used by taxpayers to justify reductions in their assessments. In many states, they are publicly available in redacted form to protect taxpayer privacy. They were briefly public in Kentucky under a Supreme Court opinion issued last year.
Under cover of darkness, our legislators worked to secure greater darkness.
Amye Bensenhaver of Frankfort is a retired assistant attorney general and open government advocate. Jennifer P. Brown of Hopkinsville publishes an online news site in her hometown and she is a former editor of the Kentucky New Era newspaper. Reach Bensenhaver at firstname.lastname@example.org. Reach Brown at email@example.com.
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