Frank Mitchell, who writes the excellent blog Bloodstock in the Bluegrass, left the following question in a comment to my last post:
By the way, in regard to the public’s interest in full disclosure, wasn’t there a time when the results of medical findings and proceedings of KHRC were routinely made public? And perhaps that changed in the 1970s when “therapeutic medications” were legalized for use on racing days?
My answer, initially, was “I don’t know.” So I turned once again to Ned Bonnie’s law review article on the Corrupt Horse Racing Practices Act of 1980, which provides a time capsule of sorts as to the state of horse racing regulation in the 70’s and 80’s.
Bonnie’s article details the federal and industry responses to the public and media scrutiny of the horse racing industry in the late 70’s that led to ultimately unsuccessful proposed legislation that would have created a central governing body of racing, with uniform drug rules. The article also contains several insights from which we can formulate at least a partial answer to Frank’s question.
From what I can discern, there did not seem to be a universal standard of transparency pre-1980. Indeed, Bonnie stated that “the controversy over the 1968 Kentucky Derby [in which Dancer’s Image placed 1st, but was disqualified due to a phenylbutazone positive] made the chemist’s ‘positive’ identification of forbidden substances a matter of public record for the first time (through a highly publicized series of hearings and court confrontations).” In the decade following the Dancer’s Image controversy, however, “state racing commissions generally [did not step up] their research efforts to identify even the hard narcotics, tranquilizers, stimulants and depressants being used on racehorses to affect their performance.” This seems to indicate that not only was disclosure/transparency limited at best, but also that there may not have been much to disclose. It is clear that severe funding shortages resulted in, at best, minimal drug testing and research efforts by state racing commissions.
The heightened scrutiny of horse racing at the start of the 80’s ultimately led to legislatures allocating more funds to testing and research, but the controversy didn’t end there. Shortly after the publication of Bonnie’s article, the question of funding laboratory and testing services costs arose in the Kentucky Court of Appeals case of Smith v. Kentucky State Racing Commission, 697 S.W.2d 153 (Ky. App. 1985). As the Court neatly put it, “the ‘bottom line’ of this appeal is who is going to pay for the detection and prevention of the use of drugs, stimulants and improper devices in horse races – the industry or the public? The lower court determined the public should, hence, their representative, taxpayer Smith, appeals.” Looking at the language of Kentucky’s statute, the appellate court held that the statute meant that the licensed associations – the tracks – “shall” bear the expenses and the commission “may by rule” allocate the proportions each association must pay (rather than, as the Commission argued, allocating that certain proportions of the costs were to be paid by public funds.).
As a side note, the Smith case contains the kind of sentence you can only find in Kentucky cases:
From the time of her admission to the Union, citizens of this great Commonwealth have regarded, not from a lack of national patriotism, the call to the colors as meaning an abiding interest in horse racing as now symbolized by the Bluegrass Stakes, the Jim Beam Spiral Stakes, the twin spires of Churchill Downs, and that greatest of all sporting events, The Kentucky Derby.” (“The” is capitalized in the original)
To return to Frank’s question regarding whether there was more disclosure/transparency before the legalization of some therapeutic medications, my answer has evolved from “I don’t know” to “not that I know of,” at least in Kentucky. Certainly, any public records not falling under certain enumerated exceptions are subject to Kentucky’s Open Records Act, which was originally enacted by the General Assembly in 1976. And perhaps before the advent of the Open Records Act, there was generally a standard policy of disclosure, which then moved to a general policy of nondisclosure unless the records were requested. That, however, is just speculation.
I’ll continue to look into the matter, and if anyone has any additional insight on the matter, I’d love to hear it.
