GUEST OPINION

Amye Bensenhaver

Not sure how this poorly reasoned open records decision slipped passed the attorney general’s crack management review team, but I’ve rarely seen a more legally unsupportable resolution of an open records dispute.

The facts: 

• Franklin County chief deputy jailer is accused of sexual harassment.

• Franklin County officials engage a Lexington law firm to conduct an investigation and prepare a report at an approximate cost of $14,000.

• Deputy jailer, who had been placed on paid administrative leave, retires.

• The State Journal requests a copy of the report from the jailer and the county attorney (who regularly confuses his role as a discrete public agency from that of de facto records custodian for all county agencies).

• The request is denied because the “only” copy of the public record is retained by the county attorney, who invokes a permanent exception for county and commonwealth’s attorneys’ criminal investigation and criminal litigation files.

• The State Journal appeals the denial to the Office of the Attorney General. 

• The Attorney General issues an open records decision affirming the denial of the request.

The exception invoked by the Franklin County attorney is therefore inapplicable. Neither he nor any other county attorney can rely on this exception to shield every record in the county attorney’s office. There is no indication in the appeal that criminal charges against the deputy jailer were ever contemplated.

The permanent exception for county and commonwealth’s attorneys was "never" intended to extend to all records maintained by these officials. It was enacted in the early 1990s with minimal opposition because access advocates knew that identical, or nearly identical, investigative records and reports could be obtained from the law enforcement agency that conducted the investigation.

Moreover, it is virtually inconceivable that the $14K report was not, at any point, “possessed” or “used” by the jailer. An elected official is obligated to know what facts were uncovered in the investigation into his chief deputy’s conduct, whether those facts supported a conclusion that the allegations were substantiated or unsubstantiated, and to take appropriate action.

There are multiple open records decisions recognizing that a record once possessed or used by a public agency is a public record of that agency even if it is no longer in the agency’s custody. The agency must retrieve the record the public agency to which it was returned — here the county attorney — and release the record if it is not protected by one or more statutory exception.

This open records decision is almost identical on its facts but reaches the opposite conclusion based on an analysis of the intentionally expansive definition of the term “public record” in the open records law.

The open records decision issued by the attorney general last week ignores this expansive definition, focusing exclusively on physical possession.

It disregards, without explanation, a long line of authority recognizing that “in the end, it is the nature and purpose of the document, not the place where it is kept, that determines its status as a public record.”

The decision is wrong at multiple levels. It clears the way for county agencies to secret away public records relating to employee misconduct in the office of the county attorney for permanent exclusion from public inspection. Obviously, this is an abuse of the narrow exception for county and commonwealth’s attorneys' criminal investigation and criminal litigation files.

The decision establishes a dangerous precedent for the attorney general’s interpretation of the open records law.

Amye Bensenhaver is a retired assistant attorney general, open government advocate and blogger for the University of Kentucky Scripps Howard First Amendment Center. Along with Jennifer P. Brown, former editor of the Kentucky New Era and publisher of an online news site in her hometown of Hopkinsville, she recently helped establish the Kentucky Open Government Coalition to provide a voice for all citizens who support government transparency and accountability.

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