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The Annotated Andy Wolfson

Some thoughts from the Open Government Coalition on the recent article about AG Cameron's attack on open records

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Some thoughts on “How Attorney General Daniel Cameron has curbed Kentuckians' access to public records”

For months, the Kentucky Open Government Coalition has sounded the alarm that Attorney General Daniel Cameron represents a clear and present danger to the Commonwealth’s open records and open meetings laws.

Most recently, we suggested that his decision to deprioritze “Government Transparency” by eliminating it from the list of “Priorities” on the Attorney General’s website — burying the topic under the “Resources” drop down menu — was perhaps symbolic of his disdain for the concept (and the laws that support it).

Imagine how pleased the Coalition was to read Courier Journal reporter Andy Wolfson’s “deep dive” into the threat to open government Daniel Cameron poses.

Several statements from Cameron‘s spokesperson that appear in Wolfson’s article warrant further comment. Because we agree with attorney Michael Abate that “Anyone who believes government exists to serve the people should care deeply that the attorney general is making it harder to find out what the government is up to,” we share these thoughts.

Spokesperson: Cameron‘s office guided by the rule of law

If ever there was a fatuous official line, this is it.

“The Rule of Law” in this case is the office playbook for eliminating those pesky decisions issued by his predecessors that have “caused inconvenience or embarrassment” to members of his staff and his political allies.

It is no coincidence that Cameron now interprets the term “possession” in the definition of the term “public records” to mean “physical” rather than both physical *and* constructive possession. Certainly, those concepts are accorded equal weight under the “Rule of Law,” recognizing that a person with constructive possession stands in the same legal position as a person with physical possession.

Not long after Cameron took office, the Finance and Administration Cabinet sued two members of his legal team — who formerly served under Matt Bevin — to recover records relating to the Bevin pardons that were removed from their offices. Those public records were no longer “possessed” by the Office of the Governor, to which they belong, and could not be produced in response to an open records request.

It was this shift in interpretation — first appearing in the “inconsequential” context of inmate email maintained by a private contractor with the Department of Corrections — that laid the groundwork for the recent decisions that are now being challenged in three courts. Those decisions declare that communications about public business by public officials on their private devices and accounts are not “public records” because they are not “possessed” or “owned” by the public agency these officials serve — notwithstanding the fact that the communications are constructively possessed by the agency.

Lawmakers —including Senators Robert Stivers and Damon Thayer — have advocated for this massive restriction on the public’ right to know for years.

That some of the harshest critics of Hillary Clinton's private email server would champion this position suggests the limitless scope of their hypocrisy.

Spokesperson: The decisions must speak for themselves

“The facts of every case are unique; those decisions must speak for themselves.”

Sadly, this Attorney General’s infatuation with brevity in open records and open meetings decisions — and his apparent enforcement of restrictive page limits — precludes the public from knowing those “unique facts.”

The factual narrative in some decisions is so scant it renders the decisions incomprehensible. Certainly, it makes any attempt to compare those decisions with new disputes — or square those decisions with past decisions and caselaw — impossible. In addition, arguments advanced by appellants in support of application of the law to the “unique facts” in their appeals are regularly ignored.

Facts and arguments, it appears, are cherry picked to advance the predetermined agenda driven outcome.

The decisions are largely silent on the facts. They do not speak for themselves.

Spokesperson: No comment “out of respect for the parties, who have the right to appeal”

This one leaves us as apparently speechless as the Attorney General’s spokesperson.

What is disrespectful to the parties about amplifying on why the office ruled as it did in the cited decisions? Since the time for appeal in each cited case has run, there is no possibility that the Attorney General’s statements will unduly influence the parties.

It is doubtful that anything the Attorney General might say could sway the court in those cases where his decision have been appealed.

While the Attorney General has no statutory duty to defend his decisions in the courts to which they are appealed, most politicians would seize the opportunity to try to justify controversial actions.

Could it be that Daniel Cameron silence is motivated not by respect for the parties but instead by his disrespect for the public’s right to know?

Public official silence is the enemy of the public good

Given the state legislative branch’s newly legalized authority to conduct the public’s business in secret — and legislators’ propensity for covertly undermining Kentucky’s open government laws — it is more important than ever that the executive branch officer charged with adjudicating open records and open meetings disputes explain how recent decisions are guided by the rule of law, how they speak for themselves, or how discussing them is disrespectful to the parties.

“No comment” is not an adequate response to questions about the destruction of foundational principles of open government.

“No comment” is not an adequate response to questions about the destruction of foundational principles of open government.

– from a 19th-century novel

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Amye Bensenhaver

Amye is a retired assistant AG who specialized in open records laws. She is the co-founder of the Kentucky Open Government Coalition. (Read the rest of her bio on the Contributors page.)



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