If you’ve wondered what the chance of success is in appealing the Legislative Research Commission’s denial of a records request to the Legislative Research Commission, under a recently enacted law that removes the General Assembly and the Legislative Research Commission from the open records law (and public oversight), we may have the answer.
Slim to none.
On August 17, Public.Resource.Org founder, Carl Malamud, and the Kentucky Open Government Coalition submitted a request to the Legislative Research Commission for “copies of the Kentucky Administrative Regulations and the Kentucky Revised Statutes in the electronic source format in which it is maintained.”
On August 27, the Legislative Research Commission, through agency counsel, denied our request.
As directed by the new law, on September 2 we appealed to the Legislative Research Commission — not to be confused with the Legislative Research Commission.
The latter (“the LRC”) is the nonpartisan and partisan legislative staff that serves the legislature. The former is the 16 member statutory committee made up of majority and minority Senate and House leadership that meets on an irregular basis (“the Commission”).
The new law governing access to records of the General Assembly and “the LRC” is uncommonly clear:
“A request for a review of any determination by the [“LRC”] director regarding a request for records set forth in subsection (2) of this section shall be made to the Legislative Research Commission [“Commission”], which shall issue its decision within thirty (30) days of the first scheduled meeting held following receipt for review. If the Legislative Research Commission [“Commission”] does not issue its decision on a review of the director's determination within thirty (30) days of the first scheduled meeting held following receipt of the request for review, the review shall be considered denied.”
After we filed our September 2 appeal to “the Commission,” we waited.
Our patience was rewarded on November 10, when “the Commission” conducted a meeting that lasted just over three minutes. “The Commission” took no action on our appeal. The subject of our appeal was never raised.
Again, we waited.
The new law does not require “the Commission” to “issue its decision on a review of the director's determination,” but if it fails to do so “within thirty (30) days of the first scheduled meeting held following receipt of the request for review, the review shall be considered denied.”
Thirty days having elapsed since “the Commission’s” November 10 meeting, our request for review is “considered denied.”
And here’s the kicker. The new law is equally clear that “the Commission’s” “decision [or in our case, its non-decision] shall be final and unappealable.”
In other words, Malamud and the Coalition have no recourse to the courts. Lawmakers insulated themselves from administrative review by the Kentucky Attorney General in 2003.
So it seems the General Assembly is not only loath to observe the records access laws it enacts for all other state and local public agencies, it is also loath to observe the records access laws it enacted for itself earlier this year.
This request for review of “the LRC’s” denial of a records request is likely one of the first such requests for review under the new law.
Draw your own conclusions.
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