Government watchdogs this month are celebrating the 40th anniversary of the Kentucky Open Records Act, an indispensable tool for holding public officials accountable.
The open records law changed everything when it went into effect in June 1976 in the midst of a general distrust in government that began a decade earlier.
Before it was signed into law by Gov. Julian Carroll, local governments could easily hide their spending, state agencies could bury their mistakes, elected and appointed officials could more easily abuse their powers.
But the law established a process through which anyone can formally request public records and a legal remedy when any request is improperly denied. It placed the state attorney general’s office in charge of enforcement and gave the office’s rulings the force of law.
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The law states the General Assembly believes “free and open examination of public records is in the public interest,” and any exemption should be strictly construed, “even though such examination may cause inconvenience or embarrassment to public officials or others.”
Jon Fleischaker, a Louisville First Amendment attorney and principal author of the legislation, recalls the atmosphere: “You start with the Vietnam War, which breeds a lot of distrust in government, and you had the civil rights movement and unrest, and between those two you had a lot of real advocates trying to get in and open up government. And then you had Watergate, which bred a substantial amount of distrust in government, and properly so. You had those three things coming together in the early ’70s.”
The climate was ripe for legislation to create transparency. The first and easiest effort was the Open Meetings Act in 1974. However, a few reporters worried that a law forcing officials to turn over documents might damage relationships with sources who would supply information “off the record.”
With the support of The Courier-Journal, a test case was brought against the city of St. Matthews in Jefferson County. “We basically lost,” Fleischaker said. “A very narrow, narrow slice of records were available but not the ordinary kind of things you and I can now get under Open Records, so the decision was made to try to get this new legislation done.”
Fleischaker and Bill Cox, an assistant executive editor at The Courier-Journal, began to draft the legislation with the idea that the public — not just the media — is entitled to everything. They looked at other states’ statutes and the federal Freedom of Information Act. The definition of open records was to be broad. Even then, it included electronic records.
Fleischaker said the Kentucky Press Association and Courier-Journal publisher Barry Bingham Jr. had a commitment of support from Carroll. “Those were the days when the governor mandated what was passed,” he said. It took a while for the press to get used to having a little more leverage. And then there were the government agencies and officials.
As expected, the first cases came out of inquiries by The Courier-Journal. One was a denied request from the Jefferson County Board of Education for its budget. The school district tried to claim the budget would not be complete until the money was spent. The newspaper won.
Ground was broken in the early 1980s when the Kentucky Medical Licensure Board was sued to gain access to complaints filed against doctors. Settlements in lawsuits of all kinds against government agencies, lawsuits that had been kept confidential, became public knowledge. Court records also got more scrutiny.
“When the law was passed, I was convinced it would primarily benefit the media, but it turns out it is used just as much by others,” Fleischaker said, noting that, among others, defense attorneys rely heavily on access to public records. So do special interest groups, like those that keep watch on education and the environment.
Assistant Attorney General Amye Bensenhaver has been writing opinions on the Open Meetings and Open Records laws for 25 years.
“Someone told me there were 10,000 (opinions) on our website,” she said, which means there are 250 to 300 written each year. She thinks her contribution is probably about 1,500 to 2,000. “I was the first hired to do it on a full-time basis in 1991,” she said. “We’ve since added two more full-time and could use another.”
A report resulting from an open records audit conducted in October 2004 highlighted the efforts of one citizen who had filed some 500 requests to each of the state’s 120 counties seeking information on animal-control issues. Another citizen used the law to shine light on a nonprofit foundation that had been secret for 40 years.
The audit was a coordinated effort of the press association, The Associated Press, several newspapers, professional groups and state universities. It found that after 28 years most agencies were complying with the law, but there were areas of concern. Many jails, for instance, were resistant to requests for records about who was incarcerated. Cities were the most compliant.
Fleischaker, whose office operates a freedom of information hotline for members of the Kentucky Press Association, says the law has put a “big, big weapon” into the hands of community newspapers, who use it to go after stories they never would have considered before.
Asked if the attorney general’s office has consistently enforced the law over the years, Fleischaker said: “It depends on who the attorney general is. You can tell when politics plays a part. When you go after certain agencies, you can see waffling from the attorney general, but not from the courts. That’s something a lot of other states don’t have. You can go straight to the courts.”
A weakness in the law is the lack of penalties. “Until a couple of years ago, I would have said (the biggest weakness) is not getting mandatory attorney’s fees (when cases go to court), but we’re getting some very good opinions now awarding attorneys fees,” Fleischaker said. Also public agencies are using taxpayer money to defend themselves. “It’s a one-sided contest, and that’s not really fair.” He added that he would like to see individuals held accountable, not just agencies.
Bensenhaver cited the limitations placed on inmates: “Correctional facilities are not held to the same standard of accountability, because they have this separate statute that basically says they don’t have to disclose anything if they deem it to constitute a security risk.”
The Open Records Act was strengthened by amendments in 1986 and 1992, the latter giving the attorney general’s rulings the force of law. But its broad definitions were the key to its longevity and adaptability to new technology and forms of communication.
“The definitions cover electronically stored information,” Fleischaker said. “What may need to be updated is how long they are maintained, providing mandatory access to volunteer members (of boards and commissions, etc.) using private phones to do public business. That’s what’s happening.” He said maintaining texts and other kinds of transmissions would be desirable.
Bensenhaver notes the changing emphasis on the law from administration to administration. Today, for example, there is no reference to the Open Meetings and Open Records laws on the homepage of the attorney general’s website. During previous administrations, there were links to how to file a request and even a sample letter. There also was easy access to a search engine that would produce opinions based on a keyword.
Journalism schools were slow at first to teach the law but now college journalists are making requests from their own trustees. “We’re getting a lot more sophistication,” Fleischaker said.
KPA helps train journalists and encourages its members, large and small, to take action with the assistance of its Legal Defense Fund.
“Our members consider themselves government watchdogs first and foremost,” KPA Executive Director David Thompson said. “They consider it a chief responsibility to their readers and their communities, and we are happy to lead the charge in making that easier.”
John Nelson is a former president of the Kentucky Press Association and retired as executive editor of Advocate Communications, which includes The Advocate-Messenger in Danville and The Winchester Sun.
Open Records and Meetings Decisions can be found on the Kentucky Attorney General website at ag.ky.gov/civil/civil-enviro/orom. It includes a link to sample letters and forms for making an open records or meetings request.