Kentucky AG Rules Gov. Violated Open Records Act in State GOP’s Request for Correspondence on School Shutdowns

Kentucky Gov. Andy Beshear speaks to the press at the Capitol in Frankfort, Ky., on Feb. 19, 2020. Bryan Woolston/AP Photo

Republicans in Kentucky are pushing to obtain correspondence from Democrat Gov. Andy Beshear and his inner circle regarding school closures at the height of the pandemic. A ruling this week by the Kentucky Attorney General’s office stated that Beshear’s office violated the Open Records Act when it denied certain documents requested by the state’s GOP.

The original request, made by the state’s Republican Party of Kentucky’s Communications Director Sean Southard, was made in December 2022, according to records released by the party on their website. A dozen Republican candidates are seeking to unseat Beshear as he seeks his second term in this year’s elections.

The request asked for any correspondence related to school closures, remote learning, or nontraditional instruction. It further asked for records, including those from personal devices and e-mail accounts related to state business, between Eddie Campbell, President of the Kentucky Education Association, and the governor and his associates from December 2019 to present.

The response from the governor’s office, returned to Southard on the same day, granted and denied part of the request.

The denied parts included “any and all correspondence” by the governor or his staff related to school closures, stating the request did not enable “a reasonable person to ascertain the nature and scope of … the request,” and because the request was not “specific enough” for the agency to identify and locate the documents in question.

They also denied another correspondence pertaining to scheduling a meeting, citing precedent that views schedules as a draft of what may or may never have taken place” and therefore constitute “preliminary records” that are not subject to disclosure.

Kentucky GOP Appeals

A week later, the Republican Party appealed the decision with Kentucky Attorney General Daniel Cameron—a Republican who is himself running for governor.

“We disagree with this analysis,” the party wrote in their appeal. “In particular, the Open Record Request specifically states which state employee accounts to search and specifically states which search terms to use. It is not burdensome to conduct a search through specific email accounts for specific terms [mentioned in the request].”

The governor’s office, in its response to the appeal, said the Attorney General should recuse himself because of a conflict of interest, citing Cameron’s challenge to Beshear in the election.

“As a result, the Attorney General’s impartiality would reasonably be questioned as possessing a personal bias to rule in the Republican Party’s favor,” attorneys for the governor’s office wrote.

AG’s Office Ruling

In the ruling of the AG’s office, a footnote in the document stated that Cameron did recuse himself from the decision but added that the “office must nevertheless carry out its mandate to adjudicate disputes under the Act.”

Kentucky Attorney General Daniel Cameron speaks during a press conference in Frankfort, Ky., on Sept. 23, 2020. Jon Cherry/Getty Images

The AG’s office found the governor’s office did not “violate the Open Records Act when it denied the correspondence related to the scheduling of a meeting.”

However, the AG’s office did find that the governor’s office violated the act when it denied a request for correspondence to or from the governor and requested individuals related to certain subjects. The AG’s office added that the GOP “clarified” they “only sought e-mails containing specific search terms.”

The office held that because the GOP asked for any and all correspondence, not any and all records, the request was specific enough to be granted. It also found that because the records were mostly electronic, it would be “less burdensome to search than physical records.”

The governor’s office is able to appeal the decision in circuit court within 30 days of the letter from the AG’s office, which was issued on Jan. 17.

Playing Politics

Both Gov. Beshear and the Kentucky GOP accuse one other of playing politics, according to The Associated Press.

A Beshear spokeswoman told the outlet that the “rules of the game” were changed during the GOP’s appeal to the AG’s office.

“Our office was never given the opportunity to respond to the specific request they (the attorney general’s office) ruled on,” she said in a statement.

Southard argued that the governor’s office was the party “playing politics with government transparency” because the GOP records request was “about accountability.”

“Andy Beshear continues to escape scrutiny for how he and his team made decisions related to school closures during the pandemic,” Southard said in a statement.

“After presiding over historic learning loss for students, doesn’t Andy Beshear owe parents transparency about who was advising him and how he made decisions? What is he trying to hide?”