While there is no Kentucky Attorney General who is — or was — deserving of consistently high grades for dispassionately interpreting the Commonwealth’s open government laws, the current Attorney General, Daniel Cameron, has dishonored himself with consistently failing grades.
The statutorily assigned duty to adjudicate open records and open meetings disputes is not one that any Attorney General eagerly embraces. Resolution of these disputes in favor of the public’s right to know places the AG in local officials’ crosshairs. Stepping on the toes of law enforcement officials — whose track record for compliance with state open government laws is nothing short of abysmal — causes the commonwealth’s chief law enforcement officer severe heartburn.
It’s a thankless job. But someone must do it, and the General Assembly has assigned the role of open records and open meetings dispute mediator to the Attorney General.
How has Daniel Cameron evidenced his less than enthusiastic support for open government in Kentucky? Why does this bode ill for his gubernatorial candidacy?
▪ In 2021, Courier Journal reporter Andy Wolfson explored “How Attorney General Daniel Cameron has eroded Kentuckians’ access to public records.” Wolfson concluded, “The fact is, Cameron and the lawyers under him have done more in his first two years in office to dramatically curtail the public’s right to know than any attorney general in recent memory.”
Wolfson analyzed the numbers, determining that “Cameron’s staff affirmed government agencies rulings in full 54% of the time compared with 44% under Beshear.” Cameron’s office, Wolfson found, “tended to give the benefit of the doubt to law enforcement and government officials with rulings in several areas, expanding their ability to keep information secret.”
Kentucky’s most widely recognized champion of open government, attorney Jon Fleischacker, declared that Cameron “misstated the law” to give public agencies “a free pass.”
▪ In 2020, Cameron petitioned the Warren Circuit Court to dismiss former Attorney General Andy Beshear’s intervening complaint in Western Kentucky University’s open records lawsuit against the Heights Herald. Beshear sought to clarify the scope of the Attorney General’s statutory authority to test an agency’s position in an open records or meetings dispute by requesting additional documentation — including the disputed records — from the agency to sustain that position.Why bother litigating the scope of the statute authorizing additional inquiry into the public agency’s position? Cameron has rarely employed it, electing in most cases to “rubber stamp” the agency’s tenuous legal claims.
▪ Through his words and actions, Cameron made clear when he took office in 2019 that he did not feel bound by the body of internal authority that guided past attorneys general’s interpretation of the open meetings and records laws for decades.
The courts have — in general — found his predecessors’ interpretation of the laws highly persuasive. Not so Cameron, who regularly takes pot shots at past open records and open meetings decisions. Cameron’s “rule of law” is — as we have noted in the past — the office playbook for eliminating pesky decisions issued by his predecessors that have “caused inconvenience or embarrassment to public officials or others.”
Take, for example, Cameron’s 2021 open records decision declaring that public officials’ communications about public business on private devices or accounts are not public records, and therefore not subject to the open records law, because the agency does not have physical possession of those communications.
That decision, which has been appealed, creates a gaping hole in both the open records and the open meetings laws!
Then there’s Cameron’s 2022 open meetings decision declaring that the notice requirements for going into closed sessions — and prohibiting final action in closed session — are permissive rather than mandatory. This will come as a great surprise to Kentucky’s courts. Their opinions — mirrored in the decisions of Cameron’s predecessors — consistently proceed from the rule that “prior to going into an executive session, the public body must state the specific exception contained in the statute which is relied upon in order to permit a secret session [and give] specific and complete notification in the open meeting of any and all topics which are to be discussed during the closed meeting.”
As noted, the courts have been consistent on this question with one exception. That single aberrant opinion was the legal basis on which Cameron’s flawed legal analysis turned.
Why should Kentucky’s voters care? Two words: Matt Bevin.
The Bevin administration witnessed unprecedented defiance of Kentucky open government laws — at the figurative and literal expense of Kentucky’s taxpayers. The most glaring example of the Bevin administration’s defiance of Kentucky’s open government laws is, of course, the refusal to release the actuarial analysis of the former Governor’s 2017 pension reform plan.
There is no reason to expect a miraculous conversion if Cameron is elected as governor. In addition to rubber stamping other public agencies’ denials of records requests, he has frequently denied requests for public records of his own office and affirmed those denials on appeal.
If Daniel Cameron is elected Governor, the General Assembly’s war on open government will continue with the enthusiastic support of Kentucky’s chief executive. The fundamental and necessary right of “[a]ccess to information concerning the conduct of the people’s business” will fall to the cynical belief that what the people don’t know can’t hurt them.
Amye Bensenhaver is a former assistant attorney general and co-founder of the Kentucky Open Government Coalition.