By Amye Bensenhaver
For The Kentucky Gazette
In what may be the single most important victory for open government in recent memory, the Kentucky Supreme Court issued an opinion Sept. 26 in which it repudiated the Legislative Research Commission’s argument that it, and not the courts, are the final arbiter of access to records of the Legislative Research Commission and the legislature.
The opinion in Becky Harilson, etc., et al. v. Hon. Phillip J. Shepherd, et al. turns on interpretation of a 2003 statute, KRS 7.119, which divested the public of the right to challenge LRC’s denial of an open records request to the Kentucky Attorney General. Instead, the first line of review for denial of a request by the LRC’s records custodian, the LRC director, was the Legislative Research Commission itself. The commission is a 16-member body of the majority and minority leadership.
The net effect of KRS 7.119 has been to force all such records access disputes involving LRC or legislators’ records into the courts (with the attendant delays and costs of judicial review versus statutorily mandated administrative review by the Office of the Attorney General within 20 to 50 business days at no cost).
This, apparently, was not good enough. LRC argued in this case that KRS 7.119 preempted judicial review as well, making LRC the final word on access to its records.
The Lexington Herald Leader challenged LRC’s position that KRS 7.119 divests the courts of the right of review – available in all other open records challenges to public agency denial of a records request – in a case involving the newspaper’s request for records relating to allegations of sexual harassment leveled against Rep. Jim Stewart III in 2015.
The court invoked the seminal 1803 U.S. Supreme Court opinion, Marbury v. Madison, in expounding on the proper role of the courts in interpreting laws enacted by the General Assembly. The Kentucky Supreme Court observed:
“It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. … This is of the very essence of judicial duty.” Marbury v. Madison, 5 U.S. 137, 177-78 (1803). “It was long ago settled that the interpretation of statutes is a proper judicial function. …” Masonic Widows and Orphans Home and Infirmary v. City of Louisville, 217S.W.2d 815, 822 (Ky. 1948). The writ action before us involves that fundamental judicial function, interpretation of a controlling statute. Interpretation of a statute detailing review of a legislative records request is in no way an encroachment on the legislative function, it is a quintessentially judicial function.”
As one who is fully aware of her propensity for exaggeration, I nevertheless maintain that this is a singularly important victory for open government.
But beware! In 2019, HB 387, sponsored by state Rep. Jason Petrie, R-Elkton, would have “clarified” KRS 7.119 by making all decisions on access to LRC and legislative records issued by the 16-member commission “final and unappealable.”
Now it’s clear what prompted Petrie’s proposal.
The bill was defeated. But the impetus to resurrect it will be even greater in 2020.
Once again open government proponents must be vigilant. We must oppose future efforts to elevate the legislature to the role of final arbiter of access to legislative records and, thus, divest the public of its right to know.
Amye Bensenhaver is a retired assistant attorney general, open government advocate, and blogger for the University of Kentucky Scripps Howard First Amendment Center. Along with Jennifer P. Brown, former editor of the Kentucky New Era and publisher of an online news site in her hometown of Hopkinsville, she recently helped establish the Kentucky Open Government Coalition to provide a voice for all citizens who support government transparency and accountability.