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Commentary: Agencies seem to believe that secrecy trumps transparency

By Amye Bensenhaver

Amye Bensenhaver

In a line of decisions analyzing the scope of the Kentucky public records law that dates from the early eighties, the Attorney General, who is charged by statute with mediating disputes that arise under the law, has declared that “[u]nless it is consistent with one or more of the exceptions to public inspection found in the Open Records Act, a promise of confidentiality has no legal effect.”

Why, then, are public agencies across the state convinced that they can bargain away the public’s right to know by the simple mechanism of a nondisclosure or confidentiality agreement?

To put it simply, agencies seem to believe that secrecy trumps transparency when the stakes are ostensibly high. It doesn’t, and agencies that enter into such legally unsupportable agreements do so at their peril.

In the case of the mayor’s Derby guest list (also the governor’s), secrecy is premised on the city’s interest in economic development and, now, an expectation of privacy. The latter argument defies logic.

An attendee at a public event, some would say the most public of annual events in Kentucky, cannot reasonably expect his or her identity to remain a secret. This is especially true when that attendee is a local “cheerleader” who enjoys sufficient prominence in the community that his or her presence warrants inclusion on the mayor’s guest list and who reaps the benefits of that prominence by being feted at the public’s expense.

Bearing in mind that the legislatively recognized exceptions to the open records law must be “strictly construed,” those portions of the mayor’s Derby guest list that identify representatives of business entities who travel to the state to be courted by local officials, and whose presence at this most public of events may contribute to local economic development, may — or may not — qualify for exclusion from inspection under the exception for “[p]ublic records pertaining to a prospective location of a business or industry where no previous public disclosure has been made of the business’ or industry’s interest in locating in, relocating within or expanding within the Commonwealth.”

A former economic development official for the city advises that in the past economic development officials maintained two lists, one identifying guests who — arguably — met the requirements found in the exception to the open records law, and the second identifying all other guests. The latter list was regularly made public. Even the broadest reading of the exception could not then, and cannot now, be read to extend to local “cheerleaders.”

Assuming, for the sake of argument, that maintaining two lists imposes an inexplicably onerous burden on city officials, the city is, and has been since the earliest days of the open records law, legally obligated to separate the excepted names from the nonexcepted names and make the nonexcepted names available for public inspection. It is troubling that public officials have forgotten, or worse still cultivated ignorance of, the basic rules of Kentucky’s open government laws.

Even more troubling is the officials’ apparent belief that the public’s statutorily protected right to know can be contracted away in a nondisclosure or confidentiality agreement. It is difficult to imagine a greater threat to open government than the notion that parties can agree to “make secret” records that the legislature has declared public.

Unless supported by one or more of the 16 statutorily recognized exceptions to the open records law, those agreements have no “legal effect.”

Enough about NDA’s! Show us the statutory exception that justifies nondisclosure.

Let’s close the door on this open government discussion. The city must, at a minimum, release the “redacted” list identifying the nonbusiness prospects who attended The Derby at the mayor’s invitation as “cheerleaders” and at the public’s expense.

Any remaining question about the application of the exception for records relating to previously undisclosed prospective businesses to The Derby guest list should be addressed to the Kentucky Attorney General or the courts by means of a legal challenge.

Amye Bensenhaver worked in the Kentucky Attorney General’s office for 25 years as an assistant attorney general focusing exclusively on open records and open meetings dispute resolution.

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