The Kentucky Attorney General’s Office has ruled that McCreary County Judge Executive Doug Stephens violated the Open Records Act by not turning over copies of the petitions calling for a special election on the proposed nickel tax.
The Board of Education had submitted an Open Records request on June 13 asking for copies of the signed petitions from the County after Clerk Eric Hayne’s office verified that a sufficient number of qualified voters had signed the petition to satisfy the legal requirement to call for the election.
Judge Stephens responded to the request three days later, denying the release of the information, citing a 2012 opinion from then County Attorney Michelle Wilson-Jones, that doing so would violate the privacy of those who signed the petition.
By law, Board Attorney Tim Crawford noted in his appeal to the Attorney General, the BOE should have had an opportunity to review the petitions themselves to independently verify a sufficient number of qualified signatures existed to call for the special election.
If the BOE found fault with the Clerk’s verification, they would have a 10-day period in which to file an action in Circuit Court to contest the validity of petitions.
The issue at hand, from the County’s perspective, is that the personal privacy rights of the citizens who had signed the petition prevented Judge Stephens from complying with the Board of Education’s original Open Records Request.
The 2012 opinion, issued by Wilson-Jones, cites KRS 61.878(1), which states “Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy,” as the basis for denying the open records request made by individuals in the wet/dry election. That decision was not challenged.
Board Attorney Tim Crawford contested the refusal with the Attorney General stating the Board of Education was “denied its legal right to make a decision within the ten (10) day deadlines to decide whether to file an action in McCreary Circuit Court to contest the validity of the McCreary County Clerk’s final determination that the Recall Petition filed by the Recall Committee was sufficient to put the matter up for an election.”
The Attorney General’s Office issued a ruling on the matter, referencing an earlier decision by the office to justify the release of the petitions.
“It is our opinion that a petition for a local option election is a public record and may be inspected by any person,” the ruling read in part.
“Unless a person purported to have signed a petition has had the court declare that his name was placed on the petition without the person’s authority and should therefore be removed, we believe that the person has no legal recourse if his name is made public as a signer of the petition and there is no liability for the disclosure of the petition and the names thereon.”
The Attorney General declared the “McCreary County Judge-Executive must immediately release the signed petitions to the Recallable Portion of the Nickel Tax, with appropriate redactions (removal) for personal information such as street address, Social Security number, and birthdate.”
Judge Stephens and County Attorney Conley Chaney have been in contact with the Board Attorney regarding a resolution to the issue, but are awaiting clarification from the Attorney General’s Office as to the order which orders the release of the petitions, but also calls for the redaction of personal information, which would seem to impede the BOE from verifying the names.