Open Records Problems in Old Kentucky

Kentucky has recently experienced challenges implementing its Open Records Act. Officials have already been accused of abusing new homeland security exemptions to the state's open records law to avoid public scrutiny of matters unrelated to terrorism concerns. One decision to withhold information will be reviewed in court this week. In another case, Governor Ernie Fletcher will likely go to court to challenge the state attorney general's decision to make certain records available to the public. On April 4, at the conclusion of the legislative session, the Kentucky legislature passed new homeland security exemptions that allow state officials to withhold records and close meetings when public access would reveal a "vulnerability in preventing, protecting against, mitigating, or responding to a terrorist act..." The exemptions are reminiscent of the Sensitive Homeland Security Information provisions of the federal Homeland Security Act, which allow the government to withhold any information vaguely defined as "sensitive but unclassified." The Associated Press (AP) requested state records of security spending surrounding a March 28 fundraising trip to the state made by Vice President Dick Cheney. Gov. Fletcher and the state police invoked the new exemptions to deny the request. The AP appealed the decision to the Kentucky Attorney General's Office, which upheld the refusal to disclose the information. Unsatisfied, the AP filed a suit under the state's Open Records Law, and the matter will be heard this week by Franklin County Circuit Judge Roger Crittenden. When Kentucky lawmakers debated the exemptions, open government activists raised concerns that officials could use the new security exemptions to avoid public scrutiny. In addition, opponents warned that withholding information from the public would harm, rather than improve, homeland security, because public knowledge of security deficiencies does more to correct them than ignorance. In a related case, the attorney general recently opposed the governor's decision to withhold financial information. The attorney general determined that Gov. Fletcher and state agencies violated the Kentucky Open Records Act when they denied a request for information on expenses incurred during a state investigation. Sen. Ernesto Scorsone (D-Fayette) filed the request for information about the cost incurred for a team of lawyers working on an investigation of state hiring practices. Scorsone believes the bills may total over $1 million and holds that the public has a right to know what the state does with that much taxpayer money. The governor's office plans to appeal the attorney general's decision, creating the possibility of another court battle for access to state information.
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