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Mixed results for open government during Sunshine Week

By AMYE BENSENHAVER

Guest columnist

Twice last week we were reminded of a common argument used by public agencies to avoid their statutory duties under the open records law. The first reminder came in the form of judicial repudiation of the argument. The second reminder came in the form of legislative acceptance of the argument in a newly enacted, but wholly unvetted, exception to the open records law.

The argument is based on the agencies’ claims that separating excepted/protected information from nonexcepted/unprotected information in a public record is overly burdensome and that they should therefore be excused from discharging their duties.

The law is clear on this point. “If any public record contains material which is not excepted, the public agency shall separate the excepted and make the nonexcepted material available for examination.” The agency must mask the protected information, identify the law protecting that information, and release the remaining nonprotected information.

On March 12, the Franklin Circuit Court ruled in favor of the Courier Journal in a case arising from a reporter’s August 2017 request for an electronic copy of “all publicly available fields” in the Uniform Citation File database maintained by the Kentucky State Police. The court rejected KSP’s argument that the database was created for the exclusive use of law enforcement officials and configured in such a way as to prevent electronic separation of protected from nonprotected information.

The only available mechanism for discharging the duty to redact, KSP argued, was by manual redaction of each citation. Given the large number of citations in the database, KSP claimed, the Courier’s request was unreasonably burdensome.

Judge Thomas Wingate flatly rejected this claim.

Noting that the “use an electronic records management system that does not allow KSP to complete duties with which it is statutorily tasked is an irresponsible, and impermissible, abrogation of its duties,” the court acknowledged “the burden of either ‘tedious manual redaction or the financial costs of creating a new database system.’” The court nevertheless concluded that “agency inefficiency cannot restrict the citizenry’s liberty interest in accessing information to promote government transparency.”

Later in the week, the Department of Revenue presented a similar claim to lawmakers conferring on HB 354, the tax “clean up” bill. Behind closed doors, Revenue argued to the conferees that its employees were exposed to criminal liability if they failed to redact personally identifying information in tax administration records before releasing the records to the public. Like KSP, Revenue maintained that the burden of redaction absolved its employees of their statutory duty.

This time, however, the agency was successful. Revenue convinced lawmakers to enact a new exception to the open records law  for “information acquired by the Department of Revenue in tax administration,” including, among other things, unappealed final rulings issued in tax protests.

It did so with no public notice, discussion, or debate, burying the exception in a 233 page tax bill that was not released to the public until after final passage.

Further, it did so without advising lawmakers that the requested exception was little more than a legislative “cure” for an adverse ruling it received last year in a case involving access to these very records.

In November 2018, the Supreme Court agreed with the lower court that unappealed rulings “contain great bodies of information related to the reasoning and analysis of the Department of Revenue with respect to its task in administration of our tax laws. [T]hat information can indeed be made available without jeopardizing the privacy interests of individual taxpayers” or placing an unreasonable burden on Revenue employees.

The Court thus rejected Revenue’s claim of unreasonable burden. Revenue did not disclose this fact to lawmakers, and the covert manner in which the new exception was shepherded through the legislature ensured that no objections would or could be raised.

The “duty to redact” has been embedded in the open records law since its enactment. Kentucky’s courts have consistently recognized that a public agency is required by statute to engage in this “winnowing process” and that it “should not be able to rely on any inefficiency in its own internal record keeping system to thwart an otherwise proper open records request” by claiming an unreasonable burden.

Revenue was nevertheless successful in securing a new exception to the law.

A proposal to enact a new exception to the open records law should always raise legislative red flags—especially when it runs counter to existing case law and statute. The last thing legislators should do is enact a new exception to the law behind closed doors. The fact that this occurred during Sunshine Week only adds to the irony.

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.