As a particularly painful year draws to a close, the Kentucky Open Government Coalition takes a look at the top ten stories of 2020. Today we cover number 10, 9, and 8 — the courts standing up for the public’s right to know, the use of HIPPA and FERPA to get around open records laws, and the work of citizen advocates for open government.
#10 — Kentucky’s courts continue to resolve open records disputes in favor of the public’s right to know.
The courts dealt public agencies a series of defeats by:
- granting the current state budget director’s and Ellen Suetholz’ joint motion to dismiss the former budget director’s appeal from a circuit court ruling in favor of Suetholz in open records litigation involving access to the actuarial analysis of the 2017 pension reform plan and awarding Suetholz’ attorneys $72,833 in fees;
- affirming the public’s right of access to the Kentucky State Police uniform citation database containing an estimated eight million entries, and rejecting KSP’s claim that the database is private and cannot be redacted;
- affirming a citizen’s right of access to KSP investigative files involving trooper misconduct; rejecting the agency’s claim that the files were preliminary; and ordering the designation of the previously unpublished opinion to be changed to a published opinion that can be cited and relied upon as legal precedent; and
- issuing a published opinion flatly rejecting a city’s lawsuit seeking compensatory and punitive damages from a citizen for publication of records obtained through the open records law and a source and excoriating the city for its attempt to use the law as “a sword” against the citizen.
2021 will not, we trust, disappoint as the courts examine open records disputes between the Finance Cabinet and former attorneys for Governor Matt Bevin relating to the return of communications concerning pardons removed by the attorneys at the conclusion of Bevin’s administration; between The Courier Journal and Louisville Metro, LMPD, and others relating to the investigative files in the Breonna Taylor case and the Explorer sex abuse case; and between Attorney General Daniel Cameron and American Oversight relating to the attorney general’s refusal to disclose records relating to the Ballot Integrity Task Force.
#9 — HIPAA and FERPA are falsely invoked as a barrier to COVID-19 data access.
While questions have occasionally arisen about the timeliness of, or discrepancies in, Kentucky COVID-19 data, state officials have been applauded for their candor in disclosing de-identified data.
Other states have not been as transparent, impeding the public’s ability to make informed health decisions by refusing to disclose data. Their pretext, generally, has been the Health Insurance Portability and Accountability Act (HIPAA) and the possibility of individual patient identification.
Universities and school districts in other states have also refused requests for de-identified COVID-19 data based on disingenuous interpretations of the Family Educational Rights and Privacy Act (FERPA), and the purported impact on student privacy, as well as HIPAA.
#8 — Citizen advocacy of Kentucky’s open government law continues to play an important role in 2020.
In the single most notable case, citizen advocate Lawrence Trageser secured a favorable ruling from the Kentucky Court of Appeals in a dubious lawsuit seeking compensatory and punitive damages that the City of Taylorsville filed against him for publication of records obtained by formal and informal means.
In a published opinion, the court admonished the city for filing the lawsuit, declaring that “the government can use the Open Records Act as a shield; [but] it cannot use it as a sword.” The court affirmed an award of $30,950 in statutory penalties for Trageser and $23,468 in fees for his attorney, Jeremy S. Rogers. A partner in the law firm of Dinsmore & Shohl, Rogers is a widely respected First Amendment advocate and a Kentucky Open Government Coalition co-director.
As a pro se litigant, Trageser also obtained a favorable published opinion from the Court of Appeals in a legal battle with the Kentucky State Police to obtain records relating to police misconduct.
Although the opinion mostly reaffirmed longstanding interpretation of the preliminary documents exceptions to the open records law, the importance of this reaffirmation in 2020 cannot be overstated since law enforcement agencies regularly ignore the older opinions.
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