We conclude our series of the Top Ten open government stories of 2020 with the top three: public agencies, the effect of the pandemic, and student journalists.
3. Public agencies exploit the pandemic to evade accountability under the open records and meetings laws.
Within days of the enactment of SB 150, reports of public agency abuse surfaced as agencies unapologetically subordinated the public’s right to know to more “pressing” public business.
On April 7, KyCIR reported that Louisville Metro denied its request for three weeks of spending records based on the thin claim that “staff necessary to respond to this request are also devoted to assisting in the city’s response to the COVID-19 pandemic; thus, it would be a burden not only to them, but also to the residents of Louisville Metro relying on Metro’s work if they were to respond to this request at this time.”
Public agencies across the state followed suit by engaging in legally indefensible delaying tactics.
Agencies struggled to adapt to the logistical challenges of video or audio teleconferenced meetings. These included disruptions in transmission and harassing interruptions (Zoombombing) intended to disrupt. In some cases, officials exploited impediments to public engagement at face to face meetings to advance non-urgent agendas.
Some agencies elected to ignore the temporary modifications to the open meetings law altogether. The Kentucky General Assembly was a chief offender in this regard. On more than one occasion, its members refused to hold themselves to the requirements they established in SB 150 for all other public officials.
2. The pandemic threatens the public’s right to know.
Kentucky moved quickly in early March to address the threat to public health posed by COVID-19. As other states dramatically altered or suspended their public records and meetings laws altogether, Kentucky took a reasoned approach, enacting SB 150 on March 30.
The temporary modifications to open records and meetings laws in Kentucky included an extension of the three working day deadline for agency response to records requests to ten days and provision for video – or, in limited cases, audio only — teleconferenced public meetings.
The modifications will lapse when the declared state of emergency is lifted.
The state’s official response was swift and measured. State and local agency implementation of these temporary changes was substantially less successful.
1. Student journalists lead the open government charge.
The Kentucky Kernel had its day in the Supreme Court on October 23 and awaits an opinion in The Kernel Press, Inc., d/b/a The Kentucky Kernel v. University of Kentucky. The open records case will determine whether public universities can evade full accountability for their own action (or inaction) by invoking federal student privacy laws. In this case, the laws were used to shield from public disclosure records generated in an investigation into student allegations of sexual harassment leveled against a professor who received a remarkably generous settlement in exchange for his resignation.
For its tenacity in this five year battle in the courts, The Kernel received the University of Kentucky Scripps Howard First Amendment Center’s 2020 James Madison Award for outstanding contribution to the First Amendment. The first newspaper to receive the award in its 15 year history, UK Center for Rural Journalism and Community Issues director Al Cross declared the award “a testimony to the power and place of student media, not just on campuses but in society at large.”
Using records obtained through the open records law, student journalists at Louisville’s Manual High School made national headlines when in October they broke the news that Kentucky State Police cadet training materials from 2013 contained references to Adolph Hitler and exhortations aimed at promoting ruthless violence. Subsequent RedEye reporting, and effective use of the open records law, toppled the commissioner of State Police and prompted comprehensive review, reappraisal, and policy change.
As 2021 begins, we anxiously await the Kentucky Supreme Court’s ruling in The Kentucky Kernel v. University of Kentucky, a case whose open records implications extend far beyond the dispute from which it arose and whose outcome may presage a new era for open government in Kentucky.
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