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Kim Davis violated Open Records Act, Kentucky attorney general says

Rowan County Clerk Kim Davis, with son Nathan Davis, a deputy clerk, read a statement to the media on Sept. 14, 2015 outside the Rowan County Courthouse in Morehead. It was her first day back at work after spending five days in jail for contempt after defying a federal judge’s order to issue marriage licenses to same-sex couples.
Rowan County Clerk Kim Davis, with son Nathan Davis, a deputy clerk, read a statement to the media on Sept. 14, 2015 outside the Rowan County Courthouse in Morehead. It was her first day back at work after spending five days in jail for contempt after defying a federal judge’s order to issue marriage licenses to same-sex couples. palcala@herald-leader.com

Rowan County Clerk Kim Davis violated the Kentucky Open Records Act by refusing to produce documents related to her legal battle last year against same-sex marriage, the state Office of the Attorney General said in an opinion released Tuesday.

The Campaign for Accountability, a Washington nonprofit that says it works “to expose misconduct and malfeasance in public life,” emailed Davis a records request on March 1 for retainer agreements and attorney-client engagement agreements between her and Liberty Counsel, the religious advocacy group that represented her after she was sued for refusing to issue marriage licenses.

Anne Weismann, the Campaign for Accountability’s executive director, said Tuesday that she wants to learn more about Liberty Counsel, which inserted itself into debates over same-sex marriage and transgender bathroom use in several states by volunteering to represent public officials.

Responding for Davis, Liberty Counsel refused to comply with the records request. Among the legal exemptions it cited, Liberty Counsel said the documents requested are preliminary and therefore do not have to be disclosed, and they are private rather than public.

The Campaign for Accountability appealed to the attorney general, whose rulings on the Open Records Act carry the weight of law in Kentucky.

The attorney general’s office asked Liberty Counsel in May for permission to privately review the documents so it could decide whether the exemptions cited are relevant. However, Liberty Counsel refused to produce most of the documents even for a private review, violating the Open Records Act, the attorney general’s office said.

“An agency cannot benefit from intentionally frustrating the attorney general’s review of an open records request. Such result would subvert the General Assembly’s intent behind providing review by the attorney general,” Assistant Attorney General Matt Jones wrote in the office’s opinion.

Davis and Liberty Counsel can appeal the attorney general’s decision by suing in circuit court. Mat Staver, founder and chairman of Liberty Counsel, said Tuesday that the group has not decided whether to challenge the ruling. However, Liberty Counsel has provided its services for free, charging nothing to Davis or Rowan County, Staver said.

“There’s nothing to reveal here,” Staver said.

Davis recently asked the 6th Circuit U.S. Court of Appeals to dismiss her appeal of extensive litigation and a contempt finding from last summer’s battle over marriage licenses in Rowan County. Davis told the appellate court that recent changes made to Kentucky marriage licenses by the legislature, reducing the visibility of clerks’ names on the licenses, has satisfied her. Oral arguments in the appeal had been scheduled for July 28 in Cincinnati.

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