Commentary

Daniel Cameron enemy of open government

As attorney general, would-be governor has undermined public’s right to know

May 25, 2023 5:30 am

Daniel Cameron spoke to the Warren County Republican Party’s Lincoln Day Dinner in Bowling Green in April. (Kentucky Lantern photo by Austin Anthony)

What would a Daniel Cameron gubernatorial administration look like through the lens of Kentucky’s open government laws?

In a word: opaque.

Since taking office as attorney general in December 2019, Cameron has established a track record of disdain for the public’s interest in free and open examination of public records and the formation of public policy at public meetings.

In a recent example, Cameron’s staff was in Franklin Circuit Court for a March 29 status conference on undisclosed public records in an open records case, American Oversight v Office of the Attorney General. The case was initiated in January 2021 after Cameron substantially denied the nonpartisan nonprofit watchdog’s June 2020 request for operational records of his public task force on “ballot integrity.” When American Oversight appealed that denial, Cameron affirmed his office’s actions. American Oversight later appealed to the Franklin Circuit Court.

The court was unconvinced by Cameron’s position, resolving the open records lawsuit against the attorney general in July 2022.

In a decisive victory for open government, the court questioned the adequacy of the attorney general’s search for records responsive to American Oversight’s request, declaring that open records requesters “cannot be expected to know all relevant search terms or places where the agency may file such records. To place that burden on the requestor is to invite the agency to hide relevant records that are obscurely labeled or stored in deep recesses of its bureaucratic records system. It is the duty of the agency to conduct an open, thorough, and good faith search of its records in response to an Open Records request.”

Cameron’s failure to conduct a good faith search for responsive records has necessitated a series of hearings in the Franklin Circuit Court aimed at compelling him to discharge his first and most fundamental duty under the open records law. Cameron continues to drag his feet, and nearly one year later no final resolution has been reached in the case.

Nothing communicates contempt for the open records law like Kentucky’s chief law officer, chief law enforcement officer, and administrative adjudicator of open records appeals thumbing his nose at court orders directing his own agency to conduct “an open, thorough, and good faith search of its records in response to an Open Records request.”

A legacy legal team

The now depleted legal staff that Cameron inherited from former Gov. Matt Bevin — widely known for combating the public’s right to know in the courts — provides additional proof of his administration’s disdain for the principles of open government.

Who can forget the Bevin legal team’s unsuccessful efforts to block release of the then-governor’s ill-conceived public pension reform plan and its equally unsuccessful efforts to hide the names of stockholders and investors in the $15M taxpayer funded Braidy Industries “con job.”

It is unlikely we will ever know the fate of executive pardon records removed by Bevin attorneys `a la Mar-a-Lago and returned — only in part — after the attorneys were sued by the current governor’s Finance and Administration Cabinet.

This was the legal team that shaped Cameron’s anti open-government agenda from the earliest days.

Beshear advances, Cameron withdraws

In 2017, then-Attorney General Andy Beshear intervened in a case involving access to sexual misconduct records at Western Kentucky University. The case was filed by the university against the student newspaper, the College Heights Herald. Beshear intervened to clarify his statutory authority to obtain additional documentation from a public agency in an open records appeal. 

In October 2020, Daniel Cameron withdrew the motion to intervene.

The WKU case was one of three involving public universities — University of Kentucky, Kentucky State and WKU — in which the universities refused to provide student media access to staff and faculty sexual misconduct records. When those denials were appealed to the attorney general, the universities refused to cooperate, as the law requires, by “furnishing the Attorney General with additional documentation from the agency for substantiation . . . [including] a copy of the records involved.”

The universities’ refusal to cooperate by providing the requested documents “severely impaired” the attorney general’s “ability to render a reasoned open records decision under statute” and resulted in an attorney general’s decision against each.

University of Kentucky v The Kernel Press, Inc. ended in a scathing opinion against UK.

WKU and Kentucky State University were embroiled in subsequent open records disputes.

The KSU case was resolved. Not so, the WKU case.

Cameron inherited the WKU open records case from Beshear. He did not, however, inherit Beshear’s commitment to repudiating public universities’ efforts “to turn Kentucky’s Open Records Act into a ‘trust me’ law.”

“At the request of Daniel Cameron, the state’s attorney general,” the Warren Circuit Court dismissed Beshear’s intervening complaint in Western Kentucky University v The College Heights Herald in October 2020.

Why seek clarification of the scope of his statutory authority to review open records appeals if, as the new attorney general, you intend to use that authority sparingly, if at all?

Broadly speaking, Cameron telegraphed that he is content to trust public agencies, including public universities.

Cameron abandons open records neutrality

In February, we learned that Cameron had requested leave from the Kentucky Supreme Court to file a memorandum in support of the City of Shively Police Department in the department’s petition for review of the Court of Appeals’ opinion, Courier Journal, Inc. v Shively Police Department, an opinion favoring public access to certain law enforcement records in an open investigation.

In an unprecedented move, Cameron abandoned his neutral role as an open records dispute mediator to advocate on behalf of the Shively Police Department and its erroneous treatment of KRS 17.150(2) as a nondisclosure provision incorporated into the open records law. (See subsection 2.)

Cameron is not the first attorney general to adopt the erroneous interpretation of this statutes to permit nondisclosure of all records in an open investigation, but he is the first to “participate as a partisan in [an open records] appeal.”

Writing in opposition to the attorney general’s motion to file a brief in support of the Shively Police Department, Courier Journal attorneys Jon Fleischaker, Michael Abate and Rick Adams asserted:

“While it may not seem unusual for the Attorney General to participate as amicus before this Court, it is highly unusual for the Attorney General to seek to do so in an Open Records Case. And there is good reason for that. In the system created by the General Assembly, the Attorney General’s office is supposed to serve as a neutral arbiter for administrative appeals, allowing members of the public and media to quickly and inexpensively hold agencies to account for denying records requests. It is not supposed to be an advocate when those interpretations are challenged in court.”

They rightly concluded, “The Attorney General has now abandoned that neutral role.”

Cameron as first line reviewer of open records and meetings appeals

Whether committed in the name of “strict” statutory construction or reliance on aberrant legal authority, Cameron is to thank for these outrages to open government, among others:

• Vastly expanding government secrecy in conducting the public’s business by declaring that public officials’ and public employees’ communications about the public’s business on their personal devices and accounts are not public records;

• Perpetuating  law enforcement agencies’ erroneous belief that all records in an open criminal investigation are excluded from public inspection; and

• Eviscerating open meetings laws by narrowly interpreting the terms “meeting” and “public business and by massaging facts and law to favor public agency interests above those of the public. The Kentucky Open Government Coalition documented these outrages, to date, in an April 2022 op-ed.

Even greater outrages, we fear, lay ahead.

Kentucky’s nightmare?

“Secrecy,” Bill Moyer’s reminds us, “is the freedom tyrants dream of.”

Open government has witnessed a slow and painful “near-death by a thousand cuts” under Cameron. He regularly abandons decades-old authority that emanated from statements of legislative policy and judicial interpretation favoring public access to advance government agency interests.

The open government picture that emerges in Cameron’s administration is dark. There is little reason to expect dramatic change if he attains the office he once criticized former attorneys general for seeking.

If elected governor, Cameron’s dream of secrecy is likely to become Kentucky’s nightmare.

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Amye Bensenhaver
Amye Bensenhaver

Amye Bensenhaver is a retired Kentucky assistant attorney general who authored open records and open meetings decisions for 25 years. She is co-founder and co-director of the Kentucky Open Government Coalition.

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