"Effort To Open Kentucky Judicial Records Falls Flat". Let's Hope For Change SOON!

Effort to open Kentucky judicial records falls flat
By Andrew Wolfson

Jefferson Circuit Court judges meet each month to address issues facing the court. But don't bother asking for minutes of those sessions.

Same for the salaries of the staff of the Kentucky Bar Association, or the Kentucky Officer of Bar Admissions, which decides who gets to practice law in Kentucky.

More than a year after the Kentucky Supreme Court said it would consider an open-records policy for the state's judicial branch, the proposed measure has been dropped.

A spokeswoman for the Administrative Office of the Courts issued a statement last week saying that because the judiciary already operates “in an open, transparent manner ... we do not think it is essential for the Judicial Branch to pursue a written open-records policy at this time.”

But when The Courier-Journal this month asked three judicial branch agencies for the kinds of records routinely released by the rest of state government — including salary information and minutes of the judges' meetings — the requests were denied.

The newspaper reported in March 2009 that, according to Katie Shepherd, chief of staff for Kentucky Chief Justice John D. Minton Jr., his office planned to propose new open-records rules for the judiciary later in the year, for possible adoption by year's end.

Minton said in an interview last week that he allowed the proposed open-records policy to die after he was able to get judicial branch's expenditures and contracts posted on the state's “OpenDoor” website, which provides such information for all state government.

“I felt like we had accomplished a huge undertaking, and I haven't thought a lot more about what else is needed,” he said.

State and local court agencies were included in the Kentucky Open Records Act when the General Assembly enacted it in 1976, but two years later the state Supreme Court ruled that one branch of government couldn't tell another what to do with its own records.

As a result, while court cases are open, the press and public have no right to inspect or copy administrative records of the courts or its agencies.

In a prepared statement issued last week, Leigh Ann Hiatt, a spokeswoman for the Administrative Office of the Courts, said the “judicial branch operates under the general, unwritten policy of conducting business in an open, transparent manner.”

The statement also said that “given our belief that good government depends on transparency and that our current process is operating effectively, we do not think it is essential for the Judicial Branch to pursue an open-records policy at this time.”

State policies vastly differ

But Jon Fleischaker, an attorney for the Kentucky Press Association as well as The Courier-Journal, said the absence of written rules means news organizations must depend on the whim of the AOC, circuit court clerks and other judicial agencies.

It also means there are no time limits in which such agencies must respond to requests and no avenues of appeal.

“Any time any government agency says ‘trust me,' it raises a red flag,” Fleischaker said.

The National Freedom of Information Coalition at the University of Missouri School of Journalism said that opening records of judicial agencies is important to citizens, not just reporters. Yet, there is a great disparity among the states on what kinds of records are made available, said David Wolfgang, a research assistant there.

In Indiana, the state Supreme Court has a rule spelling out access to court and administrative records in the judicial branch, and it says they are open unless there is a specific law or rule exempting them, said public information officer Kathryn Dolan.

Although Supreme Courts in several states, including Kentucky, have ruled that open-records acts don't apply to the courts, Florida's high court has adopted a rule specifically saying the same principles apply to every judicial branch, including those entities that regulate lawyers and judges.

In Kentucky, the state's OpenDoor site (http://opendoor.ky.gov) details spending by the executive and judicial branch. It shows, for example, that last year the judiciary spent $146,744,173 on salaries, $9,137 to repair its copy machines and $30,989 on robes for judges.

But while the site lists specific executive-branch salaries, none are listed for the judicial branch. A news release issued by the Administrative Office of the Courts on Dec. 21, 2009, said those salaries would be added in the “upcoming months,” but Hiatt said that has been delayed because of a computer-programming issue.

A test of openness

To test the court officials contention that Kentucky's court systems operates “in an open, transparent manner, the newspaper last week requested minutes of the monthly meetings of Jefferson Circuit Court judges; staff salaries for the Kentucky Bar Association and the Kentucky office of Bar Admissions; and records showing how much the KBA had paid an outside lawyer in 2008 to investigate allegations against one of its former presidents, as well as a copy of the lawyer's report.

Denying the newspaper's request for the minutes, chief Jefferson court administrator Carla Kreitman said in an e-mail that the judges discuss legal and personnel issues during the sessions and consider “this deliberative process so critical to the integrity of judicial operations that it demands protection from public disclosure.”

KBA director John Meyers cited the Supreme Court's 1978 decision exempting judicial branch agencies from the Open Records Act in denying the request for KBA payroll information, as well as how much it paid Lexington lawyer Robert F. Houlihan Jr., to investigate allegations against then-bar president Barbara Bonar, as well as a copy of his report.

Minton, asked why the state bar association doesn't abide by the spirit of openness spelled out in the AOC's statement, said he tries not to “meddle” in KBA's decisions because it has its own board.

Bonnie Kittinger, director and general counsel of the Office of Bar Admissions, a judicial branch agency responsible for deciding who is admitted to practice law in Kentucky, provided the newspaper with the bar exam pass rates for each of Kentucky's three law schools, as requested, but said, “I would prefer not to share salary information.”