What the KY Open Records Act exposes: Ethics scandals, wasted money, child abuse

In the last two days of the 2024 General Assembly, which are Friday and Monday, the Kentucky Senate could take up an oft-revised piece of legislation, House Bill 509, that threatens to undermine the Kentucky Open Records Act.

It's drawn fire from open records advocates and journalists across the state.

This might be a good time to review what's at stake.

For nearly a half-century, the Open Records Act has played a key role in exposing some of the state's biggest political scandals and revealing to Kentuckians the problems inside their state and local governments.

That's exactly what it was intended to do.

In the 1970s, government watchdog groups like Common Cause responded to widespread political cynicism over the Watergate scandal and the Vietnam War by lobbying state legislatures to enact "Sunshine Laws" that guarantee citizens access to public records and public meetings.

"That was a time in the 70s when people were holding the government accountable, like, 'Hey, we're in charge here, we demand to know what our government is up to with our tax dollars and how it is or isn't serving our needs,'" said David Cuillier, director of the Freedom of Information Project at the Brechner Center for the Advancement of the First Amendment at the University of Florida.

"Of course, that attitude has sort of waned since then," he added. "Instead, apathy is growing. There isn't as much public pressure anymore against bad government and secrecy."

In 1974, the Kentucky legislature followed the national transparency trend and passed an Open Records Act and an Open Meetings Act.

Democratic Gov. Wendell Ford vetoed the open records bill, citing his concerns for the privacy of school records and business records held in government files.

Lawmakers tried again in 1976. After tense negotiations and 14 revisions, Democratic Gov. Julian Carroll signed the second attempt at an open records bill into law.

"The bill has grown out of the frustration that citizens feel when -- after participating in the process of electing a representative government -- elected officials act as if the government belongs to them rather than the people," explained state Rep. Joe Clarke, D-Danville, that year.

Since 1976, Kentucky's open records law has been used countless times at all levels of government, by reporters and ordinary taxpayers, from the governor's office in Frankfort to school boards, police departments and public libraries.

House Bill 509, which would rewrite parts of the open records law, has gone through several dramatic changes so far this legislative session.

In its current form, now awaiting Senate floor action, the bill generally would require public agencies to provide government email accounts to their employees and appointed officials to conduct public business. Agencies only would have to search those government email accounts in response to open records requests.

Texts, email or other communications outside of those government email accounts would be exempt from open records requests.

The House bill essentially tells Kentucky's public officials to text each other on their personal phones when they don't want to leave a troublesome digital trail that can be recovered, said Cuillier at the Freedom of Information Project in Florida.

"This email thing, this is horrendous. It will make Kentucky deviant and strange across the states," he said.

"Most states recognize that it's not where communication occurs that makes it subject to open records law, it's what communication is about," he said. "Communications about government business are subject to disclosure even if they're on a personal phone or in a personal email or a personal text. It doesn't matter the mode, it matters the content."

"This will not only gut your open records law," Cuillier added, "it will gut your open meetings law, because public officials can conduct business secretly simply by communicating with each other on their own phones. There is a bit in the bill saying that public officials who do that will be punished for violating the law, but that won't happen because we'll never find out. We'll never be able to get these records."

The bill has already passed the full House and the Senate Committee on State and Local Government.

The Herald-Leader is opposed to any changes to the Open Records Act, says its editor.

"There's a quote from journalism giant Joseph Pulitzer that feels appropriate to share with Kentucky's legislature and Gov. Andy Beshear this week," said Richard Green, executive editor of the Herald-Leader and a Kentucky Press Association. board member.

"It says, 'There is not a crime, there is not a dodge, there is not a trick, there is not a swindle, there is not a vice which does not live by secrecy,'" Green said. "Pulitzer said that more than a century ago, and it remains applicable today.

"Editors across Kentucky have a stern message to the legislature and Beshear this week: The work of elected or appointed public officials done on behalf of commonwealth taxpayers who pay their salaries and fund public budgets must be accessible, uncloaked and unhindered. And that applies even to personal cell phones, tablets and laptops that are used to do the public's business."

Here are just a handful of notable examples from the past few decades when the Open Records Act helped Kentuckians learn what their public officials were doing behind closed doors:

Kentucky House aide Kent Downey, a close friend of several Democratic state lawmakers, pleaded guilty in 1997 to using his state office to promote prostitution and gambling on private golf outings. Two other House employees pleaded guilty to related crimes.

After years of legal wrangling with the attorney general over the open records law, the Herald-Leader secured the state's investigative file on Downey in 2002. It included a lot of details and the names of a number of lawmakers.

In interviews with investigators, women said Downey hired Lexington strip-club dancers to work for the Legislative Research Commission and his entertainment company.

Downey also shared a house with several lawmakers and a top aide to Democratic Gov. Paul Patton. Witnesses said state employees did cleaning and other chores at the house.

Another legislative sex scandal erupted in 2017 when a Republican House majority won power from the Democrats. Allegations of sexual harassment were made against at least a half-dozen lawmakers, including House Speaker Jeff Hoover, R-Jamestown, who resigned.

The courts sided with the Herald-Leader's requests for state records about harassment complaints against the lawmakers and money they paid to settle complaints.

So, in 2021, the legislature rewrote state law to give itself -- rather than the courts -- the final say on what legislative branch records must be shared with the public.

In 2002, Democratic Gov. Paul Patton had been elected to two terms and was considered a strong U.S. Senate candidate when WHAS-TV in Louisville broke the story of his extramarital affair with businesswoman Tina Conner.

Conner alleged that the Patton administration did favors for her financial interests during the affair through the Kentucky Lottery, the Transportation Cabinet and the Cabinet for Health and Family Services. But state regulators reversed course and punished her after the affair broke off and she ended communications, Conner said.

Curious reporters obtained documents through the open records law showing that health cabinet inspectors wrote up scores of violations at a nursing home Conner owned in 2001, ending its Medicaid funding.

Although Patton at first flatly denied the affair, he tearfully admitted to it after reporters obtained public records showing hundreds of phone calls between the governor's office and phone numbers associated with Conner. That was the end of Patton's political career.

Republican Gov. Ernie Fletcher and many of his senior aides were indicted in 2005 and 2006 for violating the state government's merit law by illegally rewarding campaign donors, friends and relatives with state jobs and improperly firing state workers to make room for them.

Fletcher issued a mass pardon for members of his administration. He struck a deal for himself with prosecutors where he admitted inappropriate behavior in exchange for getting his criminal charges dropped.

Much of what the public learned about Fletcher's hiring scandal -- and a simultaneous ethics scandal that eventually sent Republican Agriculture Commissioner Richie Farmer to federal prison -- came out of news reports based on open records requests to state agencies for email, texts, spending records and other documents.

Some referred to Fletcher's downfall as "Blackberry Jam." That's because his aides sent incriminating texts to each other on their wireless Blackberry devices -- texts that were retrieved by reporters through the open records law and published on newspapers' front pages for everyone to read.

In a nationally award-winning series of stories in 2008, the Herald-Leader used open records requests to identify hundreds of thousands of dollars in questionable spending at "quasi-public" agencies around Central Kentucky, including Blue Grass Airport, the Lexington Public Library, the Kentucky League of Cities and the Kentucky Association of Counties.

State and local audits later confirmed the newspaper's reporting about lavish travel, meals, gifts and other unchecked spending using public funds. Top officials resigned or were fired at all of the agencies.

The Herald-Leader and the Courier Journal spent years in court fighting the Cabinet for Health and Family Services for access to records about severe child abuse and neglect cases that occurred despite social worker supervision of the children's families.

The state acted as if the open records law was "an obstacle to be circumvented rather than a law mandating compliance," one judge wrote as he ruled in favor of the newspapers.

Ultimately, the cabinet agreed to settle in 2016 by paying a $250,000 penalty to the newspapers, covering their attorneys' fees and making the child abuse records available to the public under the open records law.

Opening the child abuse records has produced shocking news coverage about Kentucky children who were killed or nearly killed at home despite being on social workers' radar.

The state also created its own external review panel composed of experts who regularly -- and publicly -- review the child abuse records with a critical eye in order to recommend changes in cabinet policy and state law.

As he prepared to leave office in December 2019, Republican Gov. Matt Bevin suddenly issued hundreds of pardons and sentence commutations.

Many of Bevin's favors were controversial because they went to his campaign supporters or criminals convicted of especially heinous offenses, such as violent child-sex crimes. In some cases, political insiders had lobbied behind the scenes for Bevin to give criminals a break.

Extensive news coverage of Bevin's pardons based on documents obtained through the open records law spilled details into public view, outraging politicians in both parties, spurring calls for reform of Kentucky's pardon process and winning the Courier Journal a Pulitzer Prize for breaking news in 2020.

From 2017 through this year, the Herald-Leader has reported on violence, abuse and neglect inside the Kentucky Department of Juvenile Justice. Youths held in Kentucky's juvenile detention centers have died, been raped, suffered broken bones and were left in their own filth in isolation cells for extended periods.

Scores of news stories have prompted critical audits, reforms by governors and lawmakers and staff changes throughout the agency. Juvenile Justice Commissioner Vicki Reed resigned in January following two tumultuous years on the job.

Agency leaders typically refuse to grant interviews; access to the detention centers is restricted.

As a result, most serious news coverage is only possible because of documents obtained through the open records law, including incident reports, internal affairs investigations, reports submitted by the detention centers to Frankfort, email and other internal communications between agency officials.

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