A reminder that individuals wield great power under Kentucky's open records law.
Emily Corwin is an investigative reporter/editor for Vermont Public Radio and a 2020-2021 Harvard University Nieman Foundation Fellow.
In August, Emily introduced herself to the Kentucky Open Government Coalition as "a journalist doing some reporting on the relationship between the criminal legal system and low-wage employers."
She explained that she requested data stored in a public database maintained by the Education and Workforce Development Cabinet identifying "Kentucky businesses receiving certification for Work Opportunity Tax Credits (WOTC)."
The Cabinet denied her request, citing a state regulation making the application forms containing the information fed into the database confidential — and incorporated as an exception to the open records law — it maintained, under a newly enacted open records exception for records made confidential by "state law." The Cabinet also cited an open records exception shielding confidential or proprietary information submitted "in conjunction with an application for or the administration of assessments, incentives, inducements, and tax credits as described in KRS Chapter 154."
https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=51393
Emily noted a higher than average tax credit certification rate in Kentucky than in other states. Many of those states, she noted, freely shared the same information she requested from Workforce Development's database, specifically, "the names of businesses; the wages they plan to pay in exchange for a tax credit; and the category under which the worker receiving these wages qualifies as hard-to-employ."
Following months of wrangling with the Cabinet that culminated in an open records appeal to the Kentucky Attorney General, Emily learned yesterday that she had prevailed.
Her success is attributable, in small part, to assists from Coalition co-directors Scott Horn and Amye Bensenhaver, as well as her wife, a Vermont attorney. But Emily's victory is primarily attributable to her own stubborn persistence.
In "In re: Emily Corwin/Education and Workforce Development Cabinet," the Attorney General determined that the "Education and Workforce Development Cabinet violated the Open Records Act when it failed to separate nonexempt material from exempt material under KRS 61.878(4), and provide the nonexempt material for inspection."
The Attorney General held:
"At bottom, Corwin sought access to a database that all parties agree exists and must be (and is capable of being) redacted to some degree. The Court of Appeals has held that a public agency must separate exempt information from nonexempt information contained in its databases, and provide the requester with the nonexempt information. Dept. of Ky. State Police v Courier Journal.* Corwin has identified what she believes are five categories of nonexempt information, and the Cabinet has not carried its burden that an exception applies to those categories of information. Thus, to the extent that these categories of information are contained within the database, the Cabinet must separate them and provide the same to Corwin. The Cabinet can accomplish this by redacting every field in the database other than those specifically identified by Corwin."
https://cases.justia.com/kentucky/court-of-appeals/2020-2019-ca-000493-…
Unless the Cabinet elects to appeal the Attorney General's decision in the next thirty days — expending taxpayer dollars to resist disclosure of records other state's freely disclose — Emily can conclude her investigation "armed with the power which knowledge [and information] gives."
https://www.loc.gov/resource/mjm.20_0155_0159/?sp=1&st=text
*Echoing one of the foundational principles of the open records law, codified at KRS 61.878(4) and declaring that "if any public record contains material which is not excepted, the public agency shall separate the excepted and make the nonexcepted material available for examination."
https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=51393
