We have right to know how state-owned plane was used
Published 9:20 pm Monday, September 16, 2019
By AMYE BENSENHAVER
“The information is out there. The people can see all of the flights that have been taken and can see where the money came from.
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“The real question is: Why does it matter what the purpose (of the trip) is? Did taxpayers pay for it? If they did, then they should know the purpose. If they didn’t pay for it, it’s none of their business.”
This, according to the Bowling Green Daily News, is how Governor Matt Bevin responded to reporters’ questions about his use of a state-owned Beechcraft King Air jet to travel to nine out-of-state destinations since June.
Actually, it’s not as simple as the Governor seems to think.
Open records requests submitted to the Kentucky State Police by Courier Journal reporter Joe Sonka are pending. It is unclear what records Sonka requested, what records those requests will produce, what the records will contain, whether all or any portion of the records will be redacted, and, if so, on what legal basis.
One theory that has been floated is that the records may be shielded from disclosure under a loose reading of an even more loosely reasoned 1995 Kentucky Court of Appeals’ opinion. In Courier Journal v. Jones, the appellate court affirmed then Governor Brereton Jones’ denial of the newspaper’s request for his appointment calendar.
The court compared the governor’s calendar to “a yellow pad filled with doodlings,” concluding that the calendar was “a draft of what may or may not take place” and held that it was exempt under the first of the preliminary documents exceptions, KRS 61.878(1)(i).
In an analysis posted last week, the Kentucky Open Government Coalition characterized the Jones opinion as “flawed, driven as much by thinly veiled policy arguments as sound legal arguments.”
However persuasive or unpersuasive the reasoning in Jones may be, the case can and must be distinguished.
Jones involved an arguably tentative calendar of scheduled events that might or might not occur. Records identifying the dates, destinations, purposes and associated costs, including staff costs, of flights actually taken cannot be equated to a tentative calendar. More importantly, the records at issue here enable the public to verify the use of public equipment and personnel for public purposes and in some cases — by the governor’s own admission — nonpublic purposes.
The frustration for reporters and the public, thus far, has been an inability to correlate the records documenting flights in the KSP jet to specific destinations and associated events at those destinations.
Neither the media nor the public can confirm the governor’s characterization of each flight as public or private for purposes of determining who should pay.
Were they — or were they not — events/gatherings/meetings at which the governor appeared in the discharge of his official duties and for which taxpayers should bear the flight costs and all associated costs including flight personnel, security personnel, and their expenses?
Certainly, Kentucky is no stranger to scandals involving public officials’ or employees’ use of public equipment or vehicles for nonpublic purposes.
Remember Ritchie Farmer?
One thing is clear. Kentucky is not alone in dealing with this challenge. A quick review of several other states disclose similar controversies involving their governors. These reports also confirm the availability of public records to verify the governors’ and in one case, the lieutenant governor’s, claims:
• 2009 — Florida Lieutenant Gov. Jeff Kottkamp’s “total tab” for travel by state-owned aircraft and associated protection exceeds $700,000;
• 2011 — a New York Times article focuses on security costs associated with former Gov. George W. Bush’s and Gov. Rick Perry’s out of state travel;
• 2011 — New York Gov. Andrew Cuomo refuses to disclose unredacted copies of documents verifying the use of New York State Police aircraft in 33 flights from January to July 15 of that year;
• 2016 — travel costs incurred by New Mexico Gov. Susana Martinez in the first five months of that year total $26,270;
• 2018 — North Dakota Gov. Doug Burgum’s $37,000 trip to the Super Bowl on a state airplane results in an audit and introduction of legislation imposing requirements for better documentation of travel;
2018 — public records confirm that Gov. Jay Inslee’s out-of-state travel on official business and for political events strained the Washington State Patrol’s security budget.
The media and the public in this cross-country sampling of cases recognized what Kentucky’s governor fails to recognize: It actually is our business.
And why is it our business? Because Kentucky has an open records law. It’s not a “just trust me” law. It’s a “show us the records to prove it” law. It is our business to know how a state-owned airplane is used because Kentucky’s lawmakers enacted laws in 1976 that invest us with the “right to know.”
Amye Bensenhaver is a retired assistant attorney general and co-founder of the Kentucky Open Government Coalition.