The General Assembly passed the laws in the mid-1970s and revised them in 1992. Since then, users of the records law have made some progress in reducing an attitude among public officials that records were “their business, not the public’s business,” said Jon Fleischaker, a Louisville attorney who helped draft the first laws and was the Kentucky Press Association’s chief counsel on the rewrites.
Fleischaker said one powerful aspect of the laws is the ability of anyone to appeal the denial of a record, or access to a meeting, to the state attorney general and get within 20 days a ruling that has the force of law unless overturned in court. He said the process for “a quick and easy determination that is inexpensive” is “close to unique” among the states.
He said the attorney general’s office has become increasingly helpful with successive attorneys general: “They’re very consumer-friendly, citizen-friendly.” He said later that most judges have also been a boon: “The courts in Kentucky have been very favorably inclined toward openness.”
A key court decision, opening the donor records of university foundations, stemmed in part from a better definition of “public agency” included in the 1992 rewrite, Fleischaker said. The loser in his lawsuit for The Courier-Journal was the University of Louisville, which claimed privacy but had “wrongly assured” donors they would remain anonymous, he said. “In most of those cases there was a deal being made” with the donor. “That’s not a private matter.”
KPA and others began pressing for improvement of the laws little more than a decade after their passage because newspapers had become concerned about repeated violations of the laws and difficulty in achieving their goal of open and accountable government.
In 2004 KPA, The Associated Press and journalism schools in the state conducted an “open records audit” by sending strangers to local agencies to request specific records. Nelson, KPA president at the time, said there was “largely a positive outcome, but we did find that there were problems.”
Nelson said the “glaring weakness” that remains in the laws is a light penalty for non-compliance.
Fleischaker said it is “a very small fine that almost never gets implemented,” and “that takes litigation and expense,” usually against a public agency that can “go to court at the drop of a hat.”
Fleischaker said it is also rare for courts to grant attorneys’ fees in open-government cases, but noted that the state Cabinet for Health and Family Services was ordered to pay in its dispute with major newspapers and the Todd County Standard about child-abuse fatalities and near-fatalities.
He said the case has “become a procedural nightmare” as the state Court of Appeals considers several procedural questions and the cabinet gives The Courier-Journal and the Lexington Herald-Leader documents that are “being redacted much more than they should be,” including “names of people charged in criminal court with murder.” He added, “This has nothing to do with children and protection of children; it has to do with protection of people in the cabinet.”