The chief judge in Jefferson District Court won't say if the court approved a set of rule changes that would effectively overhaul the system for considering and documenting search warrants.
The District Court judges convened virtually Tuesday for their regular monthly meeting. On the agenda was a proposal that aimed to add transparency to the process by which search warrants are obtained.
Under the proposal, judges and police who seek a warrant would record their conversations; only certain judges could review warrant requests each day; and warrants rejected by a judge would be filed with the court clerk. Collectively, the measures would considerably expand existing local court rules related to search warrants, which require only that approved warrants be filed with the clerk.
Chief Judge Anne Haynie did not respond to multiple requests for comment about the outcome of Tuesday’s meeting. Kelsey Doren, the Jefferson District Court Administrator, requested any questions for Haynie be sent via email, but did not respond to the questions about the vote’s result, voting outcomes, and a copy of any approved rule change.
Doren said the meeting and minutes from the meeting were “confidential,” though she did not cite any specific policy or law.
District Judge Julie Kaelin, who proposed the measure, told KyCIR she was not ready to speak about it yet — but might, “after consulting with counsel.”
“I would certainly like to be able to have the public informed about what the court does with policies and procedures that affect the public,” she said.
None of the other judges responded to a request for comment.
A Push For Openness Shrouded In Secrecy
The secrecy surrounding the meeting shows the “grim reality” that courts in Kentucky are not as open as other elements of government, said Amye Bensenhaver, the director of the Kentucky Open Government Coalition.
“Ironic, though, that this meeting was all about enhancing transparency,” she said.
In Kentucky, the courts began pushing against transparency shortly after the state’s Open Records Act was put in place in 1976. A 1978 court ruling said the records generated by the courts are not subject to statutory regulation, and the judiciary pointed to the separation of powers in American government as the reason any law mandating the public disclosure of records does not apply to courts.
“There is very little in the policies evinced by the Open Records Law that we could not accept as a matter of comity. Some details of that law, however, present interferences that we regard as inconsistent with the orderly conduct of our own business, and those we do not accept,” wrote then-Kentucky Supreme Court Chief Justice John S. Palmore.
The issue at the center of the 1978 ruling was whether judges’ internal, deliberative documents were subject to disclosure, Bensenhaver said. Palmore wrote that providing access to such documents would be “intolerable.”
Since then, the basic premise of the ruling has been broadened to prevent the disclosure of an array of documents related to the judiciary — spending records, disciplinary records and even some court records, Bensenhaver said. And in 2018, the lack of public oversight boiled over with the results of a state audit report that uncovered a tangle of excessive spending, unchecked leadership and “a pervasive lack of accountability” within the Administrative Office of the Courts.
In response to the audit, Chief Justice John Minton announced a series of steps the courts had taken to “address the concerns” — including an open records policy.
The policy states that administrative court records — documents or recordings that pertain to the administration of the court — are subject to disclosure. Several exemptions exclude certain administrative records from becoming public, but ”formal declaration(s) of policy or procedures” are not protected.
Any rule adopted by a local court, like those considered by the Jefferson County district judges Tuesday, must be approved by the state’s Supreme Court Chief Justice before taking effect. Only at that point would the rule likely be considered finalized and subject to disclosure, said Jeremy S. Rogers, a Louisville-based attorney who specializes in First Amendment issues.
Rogers praised the openness of court proceedings in Kentucky. Case files are often readily available for public consumption, and hearings are generally open to the public and are recorded.
“Courts, generally, do a better job of transparency than other public agencies,” he said.
And though the process for developing policies and rules may remain hidden, they are ultimately published for all to see, he said.
“That’s a normal process for courts that are hashing it out,” he said.
But Bensenhaver thinks the process holds great public interest.
“We don’t just want the minutes, or know what the final policy is,” she said. “We want to know what the discussion was like, who objected to what, who raised issues about what. We want to see the whole process, and that’s what we are being divested from.”
Contact Jacob Ryan at jryan@kycir.org.
