The Bluegrass Institute has made no secret of its opposition to KentuckyWired, the state’s $340M broadband initiative, describing it as “a big government boondoggle” and examining the “[v]irus of secrecy infect[ing]” the project in an October 2015 article.
It should have come as no surprise to me when I was unable to locate the agency’s offices so that I could submit an open records request.
I was asked to obtain a copy of the regular meeting schedule for the Kentucky Communications Network Authority, the board that oversees KentuckyWired. The schedule was not posted on the agency’s website – not a legal requirement but a common practice among public agencies — and the only available telephone number sent me directly to voicemail.
Several telephone calls to the Governor’s Office, to which KCNA is administratively attached, yielded no results. Otherwise helpful employees had never heard of the authority and ultimately provided me with the same telephone number I had already unsuccessfully called.
Later in the day, I reached an employee who provided me with the agency’s address: 209 St. Clair Street, Fourth Floor.
My reasons for hand delivering the open records request were twofold. First, I had wasted so much time attempting to locate the agency’s address, I missed the afternoon mail. And second, I wanted to determine if the agency had complied with KRS 61.876 by posting rules governing access to its records in a prominent location accessible to the public.
These statutorily required rules are the “how to’s” for citizens wishing to access the agency’s records by means of an open records request. KCNA’s rules were nowhere to be seen. Is this a violation of the open records law? You bet.
Several hours after I delivered my request, I received a telephone call from agency counsel and a subsequent email.
Notwithstanding the legal requirement that the “schedule of regular meetings. . .be made available to the public,” he indicated that “at the April 2015 [sic] meeting the KCNA board set its regular meetings on a quarterly basis: March, June, September and December. The meetings will be scheduled for the 3rd Thursday of each month. The Board’s next meeting is June 15 at 1 pm in Room 110 of the Capital. Since the board set the regular meetings at the April meeting, I don’t have a document to provide to you, but I wanted to give you the information.”
I asked that he specify the actual dates, times and locations, and he responded, “Based on this schedule, the meetings will be September 21, 2017, December 21, 2017 and March 15, 2018, all to be held at 1 pm in Room 110 of the Capital [sic], contingent upon schedule and room availability.”
I reminded agency counsel that “the regular meeting schedule should fix the date, time and place for regular meetings,” but was minimally satisfied with his response.
That is until I received a follow-up email from agency counsel on June 15. He advised, “I wanted to let you know that at today’s meeting the Board changed the December meeting date. It is now Dec. 14, 2017 at 1:00 pm in Room 110.”
By rescheduling the December 21 regular meeting to December 14, KCNA obligated itself to treat that meeting as a special meeting and to comply with statutory notice requirements. It is well established that a rescheduled regular meeting is a special meeting. See, for example, 92-OMD-1473, recognizing that “when the public agency deviates from its regular meeting schedule and reschedules that regular meeting, the rescheduled meeting becomes a special meeting.”
“The express purpose of the Open Meetings Act” — Kentucky’s highest court has observed — “is to maximize notice of public meetings and actions. The failure to comply with the strict letter of the law in conducting meetings of a public agency violates the public good.” Both the legislature in enacting the law and the courts in construing it have demonstrated a commitment to open government openly arrived at.
Nevertheless, these events confirm that KCNA’s regular meeting schedule is conditioned “upon schedule and room availability” and therefore not fixed as to date, time and place. It provides inadequate notice to the public and no real certainty as to future regular meetings.
KCNA is far too casual about what constitutes a formally adopted regular meeting schedule. How many more changes will the board make and will these changes be reflected in its illusory regular meeting schedule?
How better to evade oversight than to conduct meetings without adequate notice to the public. Apparently, KCNA is still infected with the virus of secrecy that afflicted it in 2015.
Amye Bensenhaver, one of the foremost experts on Kentucky’s nationally recognized open records and open meetings laws, is director of the Bluegrass Institute’s Center for Open Government.