Court fight raises doubts about Cameron’s commitment to transparency

Aug 10, 2023 at 11:26 am
Attorney General Daniel Cameron addressed supporters at the Galt House in Louisville after easily winning the Republican nomination for Kentucky governor on May 16, 2023.
Attorney General Daniel Cameron addressed supporters at the Galt House in Louisville after easily winning the Republican nomination for Kentucky governor on May 16, 2023. Photo by Austin Anthony/Kentucky Lantern.

This is a Kentucky Lantern story republished under Creative Commons. See more from Kentucky Lantern here.

Denied records it sought in 2020 from Attorney General Daniel Cameron about a Ballot Integrity Task Force he co-chairs, American Oversight, a national advocacy group, pressed on.

And that set up an ongoing legal battle that open records advocates say was unnecessary and shows Cameron is unwilling to release even the most routine documents related to his office.

American Oversight “got stonewalled by the attorney general,” said Amye Bensenhaver, co-director of the Kentucky Open Government Coalition, which tracks access to public information on its Facebook page.

Under Kentucky law, the attorney general is the first stop for anyone who believes they were wrongly refused public records. It’s up to that office to review the dispute and issue a formal legal opinion.

That means that after Cameron’s office refused to provide records of the task force, American Oversight had to appeal to Cameron’s office, asking it to overturn its own decision.

It declined, responding to American Oversight with an attorney general’s opinion declaring Cameron’s office did not violate the state open records law in refusing to release the records.

Now a court battle over the records is ongoing and the outcome could have a significant impact on which records the attorney general must release when it comes to his own office, Bensenhaver said.

“Is this an important case? You bet,” said Bensenhaver, a lawyer who previously worked as an assistant attorney general in Kentucky for 25 years reviewing open records cases and writing opinions.

“They are establishing a scenario in which they are not accountable,” Bensenhaver said of Cameron’s office.

A Cameron spokeswoman did not respond to requests for comment.

Jon Fleischaker, a Kentucky First Amendment lawyer with decades of experience in open records, said that as attorney general for the past 3 ½ years, Cameron has established a poor track record when it comes to upholding public access to government information.

“Anyone who suggests he is a proponent of transparency is just wrong,” said Fleischaker, whose clients include The Courier Journal and the Kentucky Press Association. “He is an opponent of transparency.”

Meanwhile, the dispute continues in Franklin Circuit Court more than a year after Judge Phillip Shepherd ruled Cameron must produce nearly all documents sought by American Oversight, an open records advocacy organization based in Washington D.C.

Its request was part of a broader effort by the group to examine records of similar election task forces around the country, some looking into largely unfounded allegations of fraud and misconduct swirling around the 2020 presidential election in which President Joe Biden defeated Donald Trump.

In Kentucky, the “attorney general’s office fought our efforts to shed light on the task force’s activities and priorities,” American Oversight spokesman Jack Patterson said in an email. “It took American Oversight’s lawsuit and a court order to compel the disclosure of public records.”

Documents Cameron eventually released included routine records of scheduling meetings and absentee ballot tracking —“nothing to indicate the task force was anything more than a publicity stunt,” Patterson said.

The dispute continues, with American Oversight arguing Cameron’s office has not searched for and produced all records required under Shepherd’s order.

Cameron’s office insists it has.

While Cameron’s office did not agree with Shepherd’s ruling, it has elected to comply, it said in a filing in April.

“Although the office maintains it was correct in withholding various records . . . it chose to comply with the court’s opinion and order by providing all records the court ordered it to produce,” Heather Becker, a lawyer for Cameron’s office said in the filing.

Bensenhaver said she can’t figure out why Cameron initially objected to releasing seemingly routine documents sought by American Oversight, such as communications, schedules, agendas and minutes of meetings of the task force set up to review conduct of elections and investigate irregularities.

“I think it’s kind of fascinating that he’s going to erect these barriers to fairly innocuous records,” she said.

Patterson, the American Oversight spokesman, said the records showed that Kentucky’s task force, like others established in other states, ended with the same findings.

“None of these task forces found any evidence of widespread fraud and Kentucky’s Ballot Integrity Task Force was no different,” he said.

Michael Adams 
American Oversight also requested similar records from Secretary of State Michael Adams, a task force co-chair, who complied with the request, according to court records.

But Cameron’s office has established a pattern of denying requests for its records even while ruling in favor of those seeking information from other state agencies or offices, Bensenhaver said.

Track record ‘untarnished’

In a January post on the Kentucky Open Government site, Bensenhaver noted that Cameron’s office in recent months had ruled against several state officials who denied records requests including the agriculture commissioner and the state treasurer.

“But in at least 12 open records appeals of his office’s handling of requests for public records of his own agency, Attorney General Danial Cameron found no violation of the law,” said Bensenhaver, who sarcastically observed:  “His track record is virtually untarnished.”

The 12 cases are from 2020 to 2022 and cover topics ranging from a pending prosecution to records sought by the Kentucky Democratic Party of Cameron’s communications with other Republican attorneys general.

Cameron, a Republican, is running against Gov. Andy Beshear, a Democrat, in the 2023 governor’s race.

Bensenhaver noted that in two opinions in January, Cameron found that Beshear’s office had violated open records law by denying in part requests from the Republican Party of Kentucky for records of communications between officials about unemployment claims and school closures during the COVID pandemic.

‘No exceptions’

When American Oversight first requested documents about the task force from Cameron, the attorney general’s office responded by claiming it had identified 14 items but refused to release all but one — a single page of a meeting agenda.

American Oversight then appealed to the attorney general and received the opinion upholding the refusal. In Kentucky, attorney general open records opinions have the force of law unless appealed to circuit court.

So the group filed a lawsuit challenging the opinion, and in July 2022 Shepherd ruled in favor of American Oversight’s right to the records and also directed the attorney general to search for additional records.

“This court is doubtful that a mere 14 records in possession of the (attorney general) are responsive to the plaintiffs open records request,” Shepherd said in the order.

After searching again, Cameron’s office turned over 395 pages of records, American Oversight said in a court filing. Of those, 85 were new and 310 pages were records previously identified but withheld.

The newly-discovered records consisted of calendar invitations, emails and records related to absentee ballots, the filing said.

Whether any more material remains is the subject of the ongoing dispute.

Shepherd on July 18 ordered American Oversight to question representatives of Cameron’s office in depositions for purposes of “fact finding.”

The two sides then agreed to ask for additional time to resolve the dispute, which Shepherd granted.

Meanwhile, Shepherd’s ruling of July 2022 establishes two important limits on the attorney general’s power to withhold records, Bensenhaver said.

Cameron’s office, in initially refusing to release all but one page of the task force records, cited two exceptions:

One, the records withheld might relate to a criminal investigation and therefore were exempt from disclosure; and two, items such as emails about meetings, schedules and agendas were preliminary and therefore exempt.

Shepherd rejected both claims, saying that neither appeared to apply to a public task force created to monitor elections that was announced through a press release.

“The public already knows that the task force exists,” his order said.

According to Shepherd’s order, “no exceptions apply,” Bensenhaver said.

Meanwhile, the task force has conducted little activity in recent months and hasn’t issued any findings about its work, Michon Lindstrom, a spokeswoman for the secretary of state said in an email.

It “typically meets before and sometimes after an election,” Lindstrom said. “But it is a discussion group; it does not take actions or implement policy — so it does not issue reports.”

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