“Preliminary” pension reports and perennial problems with public access

COG2In one of the earliest legal challenges to Kentucky’s Open Records Law, the City of Louisville objected to disclosure of its internal affairs unit’s investigative files involving allegations of police misconduct. The city’s objections were based on the exceptions to the Open Records Law that permit nondisclosure of  “[p]reliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency” and  “[p]reliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.”

The court recognized the public’s right of access to the complaints that spawned the investigations, as well as the final action taken on the complaints, but affirmed the city’s denial of access to the underlying investigative files because internal affairs was not authorized to take final action against the police officers. Only if the chief of police, “who alone determines what final action is to be taken” adopted the information in the files “as part of his final action,” the court concluded, did the files lose their “preliminary characterization” and become publicly accessible.

Through the years, this analysis of the frequently invoked “preliminary documents” exceptions has created one of the greatest impediments to the public’s right to know.

The policy supporting these exceptions is a sound one: to protect the integrity of the agency’s internal decision-making process by encouraging the free exchange of opinions and recommendations while the process proceeds. But these exceptions, found at KRS 61.878(1)(i) and (j), are often cited to shield from public inspection all pre-decisional records until final action is taken — or a decision is made to take no action — and thereafter unless the records are adopted as part of that final action or decision not to act.

Not all “pre-decisional” records are — as the exceptions expressly require — drafts, notes, or correspondence with private individuals or preliminary recommendations or memoranda in which opinions are expressed and policies formulated.

By virtue of a loose construction of the exceptions, and despite the legislative declaration that all exceptions must be “strictly construed,”  the courts have declared — in the most recent case analyzing the exceptions — that “piecemeal disclosure along the path of the decision-making process is not mandatory.”  This is true regardless of whether the disputed records consist of drafts, notes, preliminary recommendations, etc. and regardless of the fact that agencies are statutorily obligated to separate excepted from non-excepted materials and make the non-excepted materials available for public inspection even in the midst of the decision-making process. Given the wealth of information these records contain in enabling the public to understand the process – what was considered and how officials hammered out their differences in arriving at final action – this is unfortunate.

It is especially unfortunate when a record that is generated after official action is taken is characterized as “preliminary.”

This occurred on November 13 when the Kentucky Retirement Systems Board of Trustees declined to discuss – much less release – a report “on how much [a] proposed pension reform bill would cost taxpayers and how much it would impact pension plans within the [KRS]” prepared by its consultant, GRS Consulting.

While it does not appear that all trustees agreed on the preliminary nature of the report, and the length of time the report would be withheld, trustee and state budget director John Chilton deemed the report “preliminary” because the previously released 505 page pension reform bill that codifies the publicly announced pension reform plan is not “[t]he final bill . . . It’s part of the legislative process. It’s information that’s preliminary. It’s not a final bill.”

Chilton suggested that the report would only be released “whenever the legislature decides to file” a final bill.

But the consultant’s report does not analyze the “final bill.” The final bill exists only in the abstract. It is disturbing to think that the public might be deprived of all reports, analyses, and other records relating to the pension until a final bill is filed on the pretext that everything that proceeds it is “preliminary.”

The consultant’s report which Chilton characterizes as “preliminary” examines the cost and impact of the administration’s pension plan. Although that plan is subject to legislative revision, it is final as to the administration. The report analyzing it is a post-decisional – not a pre-decisional – record that is in no way preliminary as described in KRS 61.878(1)(j).

The argument that it is “clearly marked as a draft” is a non-starter. Merely stamping a record “confidential” or “draft” has no legal impact. In several cases, the attorney general has recognized that “placing a notation such as “draft” or “confidential” on a public record does not restrict the public’s right of access to the record unless the notation is supported by an applicable statutory exemption.” Any other view would promote abuse of KRS 61.878(1)(i) through the simple expedient of marking a nonexempt record “confidential” or “draft.”

Kentucky’s sunshine laws are premised on the legislative recognition that “the people, in delegating authority, do not give their public servants the right to decide what is good for the public to know and what is not good for them to know; the people insist on remaining informed so they may retain control over the instruments they have created.”

KRS’s refusal to release a report, prepared at the people’s expense, that alerts the people to the shared cost and impact of the administration’s plan for pension reform is – at best – legally problematic. It is – at worst – an improper attempt to usurp the people’s right to “remain[ ] informed so they may retain control over the instruments they have created.”

 

Opening closed doors: why we appealed the House’s illegal meeting

As details began to emerge one week agoCOG2 that would rock the General Assembly, the Bluegrass Institute Center for Open Government celebrated a victory in its ongoing transparency initiative. We were also pointedly reminded of the importance of accountability at all levels of governmen

Shortly after learning about the decision of the House of Representatives to conduct a closed meeting to discuss pension reform, we expressed our opposition. We argued that “the open meetings act must be applied even handedly to those at the highest level of government who enacted it as well as to those for whom it was otherwise enacted,” and asked what message the House of Representatives sends to public agencies across the state “if it does not practice what it preaches?”

On August 29, the full House convened in closed session under the guise of a meeting of the majority caucus to which the minority caucus was invited. Only one member, Representative Jim Wayne, D-Louisville, objected to the closed meeting and refused to attend.

One week later, the Bluegrass Institute Center for Open Government submitted an open meetings  complaint to the House’s presiding officer, Speaker Jeff Hoover, as required for any such legal challenge by KRS 61.846(1). The words of the preamble to the Open Meetings Act drove our decision to appeal. “The people, in delegating authority, do not give their public servants the right to decide what is good for the public to know and what is not good for them to know; the people insist on remaining informed so they may retain control over the instruments they have created.”

We alleged that the closed meeting “constituted a violation of KRS 61.810(1) which states that ‘[a]ll meetings of a quorum of the members of any public agency at which any public business is discussed or at which any action is taken by the agency, shall be public meetings, open to the public at all times’ unless the public business to be discussed falls within one or more of the 13 exceptions recognized by the General Assembly and enacted into law. There is no specific exception to the open meetings act for discussion of pension reform. Nor is there a general exception to the open meetings act under which discussion of pension reform falls.”

As a means of remedying this violation, we proposed that that the House of Representatives acknowledge that it violated KRS 61.810(1) in conducting a closed meeting of a quorum of its members at which public business was discussed; that the House provide the public with a copy of any written record or audio or video recording of the closed session; and that the House issue a resolution committing to future compliance with the requirements of the open meetings law.

In support, we cited a 1993 open meetings decision — that arose under nearly identical facts — in which the attorney general rejected the House’s defense that a closed meeting to discuss health care reform was a majority caucus meeting to which the minority caucus was invited.

The attorney general recognized that a caucus is “’a conference of party or organization leaders (as in legislators) to decide on policies, plans, appointees and candidates; a local or regional meeting of party members to choose candidates or delegates.’” On this basis he concluded that “perhaps the meeting was originally intended to be some kind of caucus meeting but at least one of the [complainants] maintains that every member of the House was invited to attend the meeting regardless of party affiliation. This office does not know who specifically attended the meeting but if invitations were extended to all members, regardless of party affiliation, then, by definition, the meeting was not a caucus meeting.”

The House rejected our argument that the 1993 decision was legally controlling, asserting that in succeeding years majority and minority caucuses were established as “committees of the General Assembly other than standing committees” that are authorized by KRS 61.810(1)(i) to conduct their meetings in closed session.

But the House’s argument was not sufficient to overcome the obvious fact —  recognized by the attorney general in 1993 and again in 2017 – that a meeting attended by all members of the House, regardless of party affiliation, is not a caucus meeting.

This legal reasoning in 17-OMD-228 is solid, and although the House has until the end of November to appeal the decision to circuit court, we trust that it will choose its legal battles wisely –  in light of the morass in which it now finds itself.

Further, we trust that the House will not take measures to limit the application of the Open Meetings Act to itself as it did in 2003 when it limited the application of the Open Records Act to itself. In KRS 7.119 the General Assembly divested the attorney general of his role in adjudicating disputes that arise from its denial of an open records request, compelling persons aggrieved by such a denial to hire attorneys and incur costs and fees to appeal to circuit court for resolution.

Especially when viewed in light of the past week’s events, the House’s attempt to evade the Open Meetings Act that it originally enacted for all public agencies — including itself — reminds us that it “is neither an ideal nor a suggestion. It is the law.” Public agencies must strictly adhere to the letter of the law “or risk meaningful punishment for noncompliance. Rigid adherence to this stark principle is the lifeblood of a law which rightly favors disclosure, fosters transparency, and secures the public trust.”

 

Basking in the sunlight of last week’s open records and open meetings victories

COG2Few weeks have rivaled the week of October 30 to November 3 for reaffirming the principles of open government. A description of the week’s events follows.

On October 30, the attorney general ruled that the Cabinet for Health and Family Services violated the Open Records Act in denying the State Journal’s request for records relating to the “state’s involvement with Jaxton and Kirsten Dean.” Earlier this year, the State Journal reported that two year old Jaxton and his mother, Kirsten, had died in an apparent murder suicide.

The Cabinet acknowledged the existence of a past as well as a pending investigation, but denied the newspaper’s request based on KRS 61.878(1)(h), an exception that is often invoked while an investigation is proceeding.

But in a 2013 opinion, the Supreme Court established that the exception is “appropriately invoked” only “when the agency can articulate a factual basis for applying it, only, that is, when, because of the record’s content, its release poses a concrete risk of harm to the agency in the prospective action.”

The attorney general’s management team was slow to accept the Court’s opinion, to the great frustration of his open records/meetings staff, and in a series of open records decisions  went to great lengths to affirm agency denial of access to records in open investigative files.

17-ORD-224 signals — once and for all we hope — the end of this strained attempt to shield investigative records from public inspection. The attorney general properly determined that the Cabinet violated the Open Records Act in withholding investigative records relating to Jaxton and Kirsten Dean without showing how release of the records “poses a concrete risk of harm to the agency in “a prospective action.” The law is clear on this point, and past open records decisions should no longer muddy these waters.

On November 1, the Franklin Circuit Court rejected –  for largely the same reasons —  the Kentucky State Police’s reliance on KRS 61.878(1)(h) to deny an open records request for records relating to a 22 year old criminal case. In Sarah Teague v. Kentucky State Police, the court identified the “potential harms articulated by KSP” which included release of “heretofore undisclosed investigative details [that might] tip off individuals involved in the crime,” “bias a potential jury pool,” or “adversely color witness recollections of the events.”

Characterizing these concerns as “vague, speculative, and extremely remote,” the court concluded that the requester, the mother of the victim in the unsolved case, was entitled to copies of 911 tapes which, strangely enough, KSP had previously permitted her to hear.

The importance of the Supreme Court’s 2013 opinion as an antidote to secret investigative activity cannot be overstated.

On November 2, the attorney general held that the Kentucky Board of Medical Licensure improperly denied a request for the recording of a disciplinary hearing involving an impaired physician and conducted under Chapter 13B of the Kentucky Revised Statutes.

KRS 13B.080(8) expressly provides that such disciplinary hearings “shall be open to the public unless specifically closed pursuant to a provision of law.” Moreover, KRS 13B.090(6) entitles  “[a]ny person, upon request, [to] receive a copy of the recording or a copy of the transcript, if the hearing has been transcribed, at the discretion of the agency, unless the hearing is closed by law.”

The board maintained that the entire recording of the hearing was shielded from public inspection by an order sealing the record. No specific legal authority, state or federal, was cited in support of the order and no evidence was presented that the hearing was “closed by law.”

On this basis — and consistent with the unambiguous language found in Chapter 13B – the attorney general concluded in 17-ORD-231 that the Board of Medical Licensure improperly denied the requester access to the recording.

Also on November 2, the Kentucky Supreme Court confirmed the public’s right of access to the financial records of a utilities management company –  privately incorporated but wholly funded through its contract with local government — that had evaded scrutiny since 2011.

In Utility Management Group, LLC v. Pike County Fiscal Court, the Court determined that the company, UMG, was a public agency as defined in KRS 61.870(1)(h) – the “25% rule”– when, in 2011, the Pike County Fiscal Court requested access to its business records.

UMG had denied the fiscal court’s request, asserting that it was not a public agency for open records purposes. On appeal, the attorney general rejected UMG’s position and determined that because it derived more than 25% of its funding from local authority funds, it must disclose the requested records.

As the case proceeded through the courts, opponents of the 25% rule succeeded in convincing the General Assembly to narrow its application by excluding from the 25% calculation public funds derived under competitively bid contracts. This, conveniently, included UMG. The issue for the courts, thereafter, became one of retroactive application of the amended statute to prohibit access to UMG’s business records notwithstanding the fact that it was a public agency at the time the request was made.

The Court rejected UMG’s retroactive application argument and concluded that the public must be afforded access to the business records requested in 2011.

Serious problems persist with KRS 61.870(1)(h) as a consequence of the ill-advised 2012  amendment to the statute. But for now, open government advocates can bask in the sunlight of this and the others victories recounted above.

Each of these victories merits its own blog. And — with the exception of the last — the Bluegrass Institute Center for Open Government played a direct or indirect role in each by assisting the requesters in the development of arguments and the drafting of records request, letters of appeal, and briefs to the court.

But it was the Bluegrass Institute Center for Open Government itself that filed an open meetings appeal and secured another significant victory for open government last week. On November 1, the attorney general issued 17-OMD-228 declaring that the Kentucky House of Representatives violated the Open Meetings Act when it conducted a closed meeting of a quorum of its members in late August to discuss pension reform. An analysis of our victory in that appeal will be the subject of a future blog.

For now it’s safe to say that it doesn’t get any better for access advocates than the week of October 30 to November 3.

 

Bluegrass Institute Center for Open Government files amicus brief in Supreme Court case

COG2Does the public have a right to know how the Department of Revenue interprets Kentucky’s tax laws in recurring disputes that affect taxpayers?

On October 30, 2017, the Bluegrass Institute Center for Open Government filed an amicus curiae, or friend of the court, brief in which it urged the Kentucky Supreme Court to affirm a Court of Appeals’ opinion recognizing that right. It is the first amicus brief filed by the Center for Open Government since the Center was created earlier this year.

The Bluegrass Institute Center for Open Government is not a party to the case, Finance and Administration Cabinet, Department of Revenue v. Mark F. Sommer and Tax Analysts, but filed the brief “because it has an immediate and direct interest in ensuring that interpretation of the Open Records Law, the issue that lies at the heart of this appeal, continues to reflect the legislatively and judicially recognized presumption of openness for the public good.”

The purpose of the brief is to assist the Court in better understanding the broad importance of the legal issues presented.

The case involves an open records request submitted to the Finance and Administration Cabinet and Department of Revenue in 2012 for copies of unappealed “final rulings” in tax protests brought under KRS 131.110. Revenue issues these final rulings when the disputed tax issues cannot be resolved through the KRS 131.110 process. It has consistently denied the public access to the rulings based on taxpayer privacy and, in this case, the assertion that redaction of personal information from the rulings would impose an unreasonable burden.

The Court of Appeals determined that production of the unappealed final rulings “is not prohibited by any provision of law.” “Quite the contrary,” the court reasoned, as long as the rulings are “suitably redacted by the Department of Revenue to protect taxpayer privacy,” production “is required by our Open Records Act.”

“[T]he substantive portions of final rulings,” the court observed, “contain a wealth of information relative to the implementation of our tax laws” to which the public has been denied access under Revenue’s “unreasonably and overly broad view of KRS 131.190(1)(a) and KRS 131.081(15).” The court rejected Revenue’s claims and concluded that “great bodies of information related to the reasoning and analysis of the Department of Revenue with respect to its task in administration of our tax laws . . . can indeed be made public without jeopardizing the privacy interests of individual taxpayers.”

In its brief to the Supreme Court, the Center for Open Government focused on Revenue’s argument that “the specter of ‘suitable redaction’ is a red herring because the ORA redaction requirement only applies to records actually subject to the ORA,” an argument that is premised on the erroneous belief that an agency record containing both excepted and nonexcepted information is not a public record.

Such a record, we noted, “is no less a public record for purposes of open records analysis, and public agencies are statutorily mandated to respond to a request for such a record by separating he excepted and making the nonexcepted material available for examination.” We emphasized the grave threat to public access that Revenue’s argument for ”a wholesale blanket approach to withholding public records” represents.

We drew on an extensive body of open records caselaw recognizing and implementing the legislative presumption favoring access to public records as well as the single reported case in which an agency unsuccessfully argued that the duty to redact excepted information and produce nonexcepted information was overly burdensome.

The Bluegrass Institute Center for Open Government stands with the appellees in support of the Court of Appeals’ holding which, in our view, gives “maximum effect both to the privacy protections of taxpayers and to the public’s interest in knowing how our tax laws are administered.”

Does the public have a right to know how the Department of Revenue interprets Kentucky’s tax laws in recurring disputes that affect taxpayers?  The simple answer is “yes.”

 

 

Attorney general rules no foul in UofL open meetings challenge, but the public’s right to know is penalized

COG2When the legislature enacted KRS 61.810(2) in 1992, it did so with good intentions. The Open Meetings Act had prohibited secret meetings of a quorum of the members of a public agency where public business was discussed or action taken since its enactment in 1974.

But agencies quickly found ways to circumvent the Act by holding serial less than quorum meetings where consensus was secretly reached. No quorum was “present” during any of these meetings, but the members attending the meetings collectively constituted a quorum.

The effect of these “floating” or “rolling” serial less than quorum meetings was the same as the effect of a secret meeting of a quorum: the public was denied its legal right to monitor the discussions that went into  the “formation of public policy.”

In enacting KRS 61.810(2), lawmakers recognized that “[a]ny series of less than quorum meetings, where the members attending one or more of the meetings collectively constitute at least a quorum of the members of the public agency” are public meetings under the Act and must be open to the public.

Clear enough. Agencies could no longer evade open meetings compliance by discussing public business in a secret meeting of a quorum of their members or in a series of less than quorum meetings.

At this point, the legislature apparently got cold feet. Lawmakers retreated from the strongly worded statement of prohibited conduct found in KRS 61.810(2) by requiring proof that the serial meetings were “held for the purpose of avoiding the requirements” of the Open Meetings Act.

Consider the challenge to the public of obtaining proof that the agency members intended to violate the Act and the ease with which the agency could refute that proof by submitting affidavits from the members attesting to their innocent participation in the serial meetings.

Lest KRS 61.810(2) have any real impact, lawmakers inserted an additional loophole that permitted serial less than quorum meetings “where the purpose of the discussions is to educate the members on specific issues.”

Not surprisingly, agencies regularly raise this defense when they are accused of violating KRS 61.810(2).

It is, in fact, the defense that the University of Louisville Board of Trustees raised in fending off a legal challenge arising from a September 27 press conference in which Board Chairman David Grissom “told reporters that he called every trustee to get their take on how best to respond to the recruiting scandal,” and indicated that “every trustee told [him] they supported acting President Greg Postel’s decision to suspend athletic director Tom Jurich and men’s basketball coach Rick Pitino.”

It is also, unfortunately, the basis on which the Kentucky Attorney General affirmed that action.

Relying on that portion of KRS 61.810(2) which excludes discussions held for the purpose of educating members from the prohibition on serial less than quorum meetings, UofL defended the telephonic meetings between Grissom and the Board members as “informational” and “advisory.”

And in 17-OMD-222  the attorney general agreed with UofL.

In what can only be described as a confusing analysis both legally and factually, the attorney general determined that “The U of L Board did not violate the Open Meetings Act by informational calls made by the Interim President to board members notifying them of the decision to place Mr. Jurich on administrative leave.”

The complainant did not allege, nor did the evidence support, a series of telephone calls placed by  the university president to the individual board members. The complainant alleged — and the evidence incontrovertibly supported — a series of telephone calls placed by the chairman of the board to the individual board members. The attorney general’s understanding of the underlying facts is curiously flawed.

This error aside, the attorney general casually accepted the board’s defense that the series of less than quorum telephonic meeting —  in which board members collectively constituting a quorum participated —  were informational only notwithstanding the fact that Grissom, himself, stated in a press conference that he contacted the members by telephone to “get their take on how best to respond” to the scandal and that every member expressed support for President Postel’s decision to suspend the key players.

This suggests not just the sharing of information but also discussion of alternatives (“how best to respond”) and  expressions of opinions (“expressed support”) on a matter with which the board of trustees was ultimately entrusted, specifically, Jurich’s future employment at the university.

In fact, it sounds a lot like the beginning of “the formation of public policy.”

KRS 61.810(2) does not require proof that the members took action. Their discussion of public business was sufficient to trigger the KRS 61.810(2) requirement of an open meeting even if that portion of the meeting relating to discussion of Jurich’s discipline or dismissal was conducted in a properly convened closed session.

The casualness with which the attorney general approached this issue will embolden other public agencies to exploit the loopholes in KRS 61.810(2) that essentially render it a nullity. Short of an admission by agency members that their goal was to avoid the requirements of the Open Meetings Act and that they took action on a matter with which they were entrusted, 17-OMD-222 suggests he is willing to give them a pass.

In a report issued earlier this year, the Bluegrass Institute Center for Open Government recommended elimination of both of the loopholes in KRS 61.810(2).  We proposed a zero tolerance statute. The benefits would be twofold. First, public agencies could no longer evade accountability by the simple expedient of feigning ignorance of their statutory duties. And second, the public could assert the right to monitor discussion of the same information presented to the members so that the public and the members would be equally well educated on specific issues.

The net effect would be a slam dunk for open government.

 

 

 

“Much ado about nothing?” The Oldham Circuit Court disagrees.

COG2In July, 2017, we criticized an open records decision issued by the Kentucky Attorney General declaring that a public agency could place restrictions on an open records recipient’s use of nonexempt public records without subverting the intent of the Open Records Law.

We suggested that an attorney general’s decision endorsing agency’s censorship of a recipient’s publication of records obtained under that law represented a direct assault on the public’s right to know. We cited four prior attorney general holdings — three of them legally binding open records decisions —  that directly contradicted the attorney general’s 2017  decision.

Following her unsuccessful appeal to the attorney general, the open records recipient, a Cabinet for Health and Family Services employee who had been  instructed by the Cabinet that she could not discuss the records released to her with anyone, challenged that attorney general’s decision in the Oldham Circuit Court. In late July, we reported on the hearing in that case.

We were outraged by the dismissive attitude of the Cabinet’s attorney toward the hearing. He characterized the issue before the court as “much ado about nothing.” When he and I met outside the courtroom prior to the hearing, he expressed surprised at my presence declaring that the issue was “stupid.”

Oldham Circuit Judge Karen A. Conrad did not agree.

On October 24, she issued an opinion declaring that the Cabinet for Health and Family Services violated the Open Records Law when it disclosed public records to the recipient with instructions not to share the records with anyone else.

Judge Conrad was apparently no more impressed by the Cabinet attorney’s “remarkable display of obfuscation” at the hearing than were we. In her opinion, she focused on the referenced legal authorities issued by the attorney general  — the most recent in 2014 —  which counsel for the Cabinet and the attorney general chose to ignore.

Noting that the “the common theme among them is that it is impermissible for an agency to direct how a person may use documents procured from an open records request,” Judge Conrad concluded that although the Cabinet “supplied the requested documents pursuant to an open records request,” it “violate[d] the Open Records Act in advising the [recipient of the records] that she could not discuss the contents with anyone but her supervisors.”

In so doing, she repudiated the Cabinet’s actions and the attorney general’s 2017 open records decision approving those actions.

Cases like this one do not make headlines. The Cabinet employee who brought it is not a famous, or infamous, public official. The stakes are high, ostensibly at least, only to her.

But her courage and sacrifice in bringing this action cannot be discounted. And the principle that she and her attorney successfully vindicated is fundamental to the Open Records Law.

“What is at stake” we asked in our analysis of the circuit court hearing in July? “Nothing less than the right of an open records requester to freely use the records to which she is afforded access. What good is a public record if it cannot be made public?”

Cynics may disagree, but these small battles in the war on agency abuse of the Open Records Law do as much, if not more, to steadily advance and invigorate the cause of transparency and accountability than some of the widely reported cases whose holdings may have limited application.

The individuals who bring these cases in circuit courtrooms across the state are true  champions of open government. Their efforts represent considerably more than “much ado about nothing.” And their achievements are anything but “stupid.”

Through their efforts and achievements, these individuals may one day succeed in convincing agencies like the Cabinet for Health and Family Services to abandon a “culture of secrecy” that – in 2016 — resulted in the imposition of  hundreds of thousands of dollars in penalties, costs and attorneys’ fees. Perhaps the agencies will reconcile themselves to, and even embrace, the value of open government if that day comes.

 

 

Unringing the bell: why open meetings remedies are often unsatisfactory

COG2One of my first undertakings as director of the Bluegrass Institute’s Center for Open Government was an open meetings challenge to the Jefferson County Board of Education’s decision to conduct a board meeting in a private law office on the 28th floor of an office building in downtown Louisville.

The Open Meetings Law requires public agencies to conduct their meetings at times and places convenient to the public. We alleged that the board’s April 30 meeting violated the open meetings law because the meeting was conducted at an inconvenient location.

We cited legal authorities predating the enactment of the Open Meetings Law by 25 years and as recent as 2016  recognizing that a public meeting must be held in “a place from which no part of the citizens . . . may be excluded by reason of not feeling they may freely attend.”

Not surprisingly, we prevailed on this legal issue when it was presented to the Office of the Attorney General on appeal.

The attorney general was persuaded by  “common experience as well as the specific experience of” representatives of the Bluegrass Institute — who were unsuccessful in their attempts to gain entry to the downtown office building  on a subsequent Sunday afternoon —  concluding that “it [is] reasonable to suppose that an ordinary member of the public might have been discouraged from trying to attend a meeting.”

JCPS was not persuaded. WDRB reported that in responding to the open meetings decision, the board chair “criticized as ‘ludicrous’ the Bluegrass Institute’s claim that it found the doors of PNC Plaza locked when it tried to access the building on Sunday, July 9. ‘The only thing this group has done has guaranteed that any time there is a special meeting, even on weekends, that there will be a cost incurred by the taxpayers of Jefferson County.’”

In addition to identifying the alleged violation in our open meetings complaint, the law also required us to propose a remedy. We proposed that the Jefferson County Board of Education acknowledge its violation of the open meetings requirement that all public meetings be conducted at times and places convenient to the public.

Other than its dismissive comments to WDRB, the board remained silent.

Accordingly, on September 13 the Bluegrass Institute mailed a letter to the board “to demand compliance with the remedial measures [we proposed], which now bind the Jefferson County Board of Education, and written verification of compliance.”

Again, the board remained silent.

Therein lies the greatest frustration with the Kentucky Open Meetings Law. Unlike those agencies – which are few and far between – that acknowledge error and commit to a future course of compliance with the law, many agencies openly disregard their express statutory duties and the attorney general’s legally binding rulings.

And the minimal penalties that the law currently imposes do little to deter this misconduct.

In an open records appeal, the remedies for noncompliance are clear: disclosure of the wrongfully withheld records. And – since 2016 when the Kentucky Court of Appeals affirmed a lower court’s assessment of penalties and attorneys’ fees in excess of $1 million – a “liberal reading of those provisions aimed at the meaningful punishment of those who willfully obfuscate the public’s ability to examine non-exempt records.” 

In an open meetings appeal, the remedies for noncompliance are often gestures: an admission of error, an adjustment in practice, and an occasional attempt to publicly reconstruct discussions improperly conducted in secret. Training on open meetings is only valuable as a remedy if the trainer is thoroughly steeped in the law and its underlying policies and the agency members are truly receptive.

It is not valuable if the trainer actually believes that open meetings compliance is “all about the money.”

Nevertheless, the courts have twice shown a willingness to impose the harshest existing penalty in the Open Meetings Law on noncompliant public agencies in recent years. When an agency takes action that is not in “substantial compliance” with the Open Meetings Law, that action “shall be voidable by a court.”  In 2012, the Kentucky Supreme Court affirmed the trial court’s opinion voiding a contract for consulting services entered into by a school board and its departing superintendent when the board “entirely failed to comply with the law.”

One year later, the Court of Appeals affirmed the trial court’s opinion voiding a school board’s legal challenge to a recall petition for an ad valorem property tax based on the board’s failure to comply with the Open Meetings Law.

This was the remedy originally sought, but later withdrawn, by the Advocate Messenger in its successful open meetings challenge to the Danville Board of Commissioners’ secret discussion of the purchase of a building earlier this year. Had it not done so, that purchase might have been voided by the courts as well.

As for the Jefferson County Board of Education, the issue under discussion at its illegal April 30 meeting was nothing less than the candidates for interim superintendent. The board’s attitude toward the Bluegrass Institute’s legal challenge – and the attorney general’s legally binding conclusion that it violated KRS 61.820 – might not have been so cavalier had this matter proceeded to the courts and the courts, in turn, voided action taken at or resulting from that illegal meeting.

Perhaps it’s time to consider even harsher penalties – or at a minimum — equipping the public with the resources necessary to pursue open meetings disputes through the courts. Or perhaps it’s time public agencies wake up to the reality that “[t]he failure to comply with the strict letter of the law in conducting meetings violates the public good.”

Government by secret committee: a clear abuse of the public’s right to know

COG2In 2015 the Bluegrass Institute appealed the Kentucky Board of Education’s denial of an open meetings complaint to the Office of the Kentucky Attorney General.

There was nothing unusual in that act. The Kentucky Attorney General reviews multiple open meetings appeals each year.

What was unusual was the fact that an esteemed public body charged with developing policies for  “planning, coordinating, administering, supervising, operating, and evaluating the educational programs, services, and activities within the Department of Education” failed, in the first instance, to understand its longstanding duties under the Open Meetings Law, and refused, in the second instance, to acknowledge its obvious violation of the law when the Bluegrass Institute challenged its actions in an open meetings complaint.

What was that violation?

It was the board’s erroneous belief that a committee it created to “manag[e] and narrow[ ] the search for a firm to assist . . . in finding a new commissioner of education” was not a “public agency” as that term is defined in the Open Meetings Law, and that it could therefore conduct its meetings by private  telephone discussions.

In 15-OMD-155 the attorney general rejected this position relying, in part, on a Kentucky Supreme Court opinion issued in the eighties. The Court in Lexington Herald Leader v. University of Kentucky Presidential Search Committee analyzed the definition of “public agency” — as the term was defined in that era — and concluded that the exclusion of public agency committees from the application of the Open Meetings Law “would clearly thwart the intent of the law.”

The attorney general cited no less than ten earlier open records decisions in ruling for the Bluegrass Institute. This line of decisions recognized the status of committees of public agencies as distinct public agencies and their duty to comply with each and every open meetings requirement imposed on the agency to which they owed their existence.

The term “public agency” has included any committee, ad hoc committee, or advisory committee of a public agency since the earliest days of the Open Meetings Law. Currently, KRS 61.805(2)(g) defines the terms as “[a]ny board, commission, committee, subcommittee, ad hoc committee, advisory committee, council, or agency . . . established, created, and controlled by a ‘public agency’” as  otherwise defined in the law.

Nothing evokes greater surprise, and resistance, from public officials than the news that the agencies they serve cannot avoid the requirements of the Open Meetings Law by conducting the public’s business in secret committee meetings based on the erroneous assumption that the committees are not public agencies because they consist of less than a quorum of the members of the body that created them.

Their arguments for secret committees? Committee meetings encourage more candid and open discussion and promote efficiency.

But lawmakers and judges have rejected these arguments by defining “public agency” to include committees — by whatever name – and declaring that “the right of the public to be informed transcends any loss of efficiency.”

It seemed to come as a surprise to the members of the Frankfort/Franklin County Planning and Advisory Committee for Redevelopment of the Capital Plaza and Associated Area, a public agency that – to its credit — recently acknowledged its obligation to admit the public to its meetings, that its subcommittee must also adhere to the requirements of the Open Meetings Law. In the course of its October 11 meeting, the committee announced that a subcommittee of its members would convene two days before its next regularly scheduled meeting to review proposals and narrow the field of potential consultants responsible for a redevelopment strategy.

When questioned about the public’s right to attend the subcommittee’s meeting, the committee expressed a willingness to admit the public but stopped short of acknowledging its legal obligations under the Open Meetings Law. Committee members indicated they would consult with the city attorney before conceding the point.

The city attorney’s review of the law can yield only one result. Based on the analysis found in 15-OMD-155, and the legal authorities on which is was based, there is no doubt that the committee and its subcommittee are public agencies.  They must comply with the requirements of the Open Meetings Law even though compliance may prove inconvenient or even inefficient.

In the final analysis, “the right of the public to be informed transcends any loss of efficiency.”

 

 

AG rejects Finance argument that secrecy ensures integrity in State Journal open meetings appeal (with an assist from the Bluegrass Institute)

COG2The State Journal  prevailed in an open meetings appeal to the Office of the Kentucky Attorney General in a decision issued on October 6, 2017 — 17-OMD-207 — and the Bluegrass Institute Center for Open Government played a role in its victory.

Assistant Attorney General Matt James ruled that the Finance and Administration Cabinet’s refusal to publicize — and admit the public to —  meetings of the Capital Plaza built-to-suit selection committee violated the Open Meetings Act. The Center for Open Government worked closely with the State Journal in formulating the arguments and drafting the complaint that culminated in the newspaper’s successful appeal to the attorney general.

The Capital Plaza built-to-suit committee was created under authority of KRS 56.8163(1). The Open Meetings Act defines the term “public agency” as “any body created by or pursuant to state or local statute.” The committee is therefore a public agency. Simple, right?

Not so for the Finance Cabinet and its legal staff. They insisted that an obscure advisory opinion issued by the attorney general in 1992 — relating to sub-delegation of adminstrative responsibilities in a university setting — trumped the express language of these two statutes.

The cabinet did not address either statute, or the statute authorizing the committee to conduct closed session discussion of specifically enumerated topics, in defending its longstanding practice of conducting committee meetings without notice to the public or complying with any of the other requirements imposed on all public agencies by law.

Instead, the cabinet focused on the fact that the committee members’ identities would be disclosed if its meetings were conducted in public, exposing the members to potential improper contacts and influence.

Assistant Attorney General James rejected that argument, noting that “there is always a risk of improper contact in any issue of public importance,” and “the Open Meetings Act makes no exemptions based on the mere possibility of improper contact.”

Thus, James summarily rejected the Finance Cabinet’s attempt to turn the notion that “sunlight is the best disinfectant” on its head.

To be clear, KRS 56.8169 authorizes the committee to discuss specific proposals in closed session. Neither the State Journal nor the Center for Open Government disputes this clearly established law. The General Assembly has statutorily fixed the limits of the committee’s permissible closed session discussion. The Finance Cabinet and its committees are not at liberty to exceed these limits based on unsupported claims that statutorily assigned duties will be compromised by public scrutiny.

Once again, the Bluegrass institute is pleased to have assisted in securing the proper resolution of this important legal issue and advancing the principles of open government.

The open meetings law affords the Finance Cabinet 30 days to appeal the attorney general’s open meetings decision to the Franklin County Circuit Court. If the cabinet chooses not to pursue this course of action before 30 days has elapsed, 17-OMD-207 will have the force and effect of law and bind the parties.

 

Presidential searches and police internal investigations: what public agencies must do, may do and should do to promote public trust

COG2Kentucky’s open records and open meetings laws are, fundamentally, public access laws. They exist to  ensure any person’s right to inspect and copy public records and to attend public meetings — regardless of the person’s identity or purpose — and to create a statutory mechanism for enforcing those rights.

When the laws were enacted in the seventies, lawmakers recognized that the public’s right to know must occasionally yield to a legitimate need for personal privacy or governmental confidentiality. They adopted several exceptions to the laws and prefaced them with language indicating that the exceptions are iron clad.

But one of the earliest rulings issued by the Kentucky attorney general — to whom lawmakers assigned the role of open records and open meetings dispute mediator — recognized that an exception to the  laws is “a shield and not a shackle.” Because there is no penalty for affording the public access to  a record or meeting that may be protected under one of the exceptions, a public agency may waive an exception if “going public” promotes the greater good.

The Kentucky Supreme Court confirmed this view in 2013 when it declared that lawmakers ”did not intend to mandate an iron rule of non-disclosure whenever an exemption applies.”

Two recent headlines in the Courier Journal suggest the challenges agencies face in responsibly exercising the discretion to waive an exception. While it’s easy enough to argue that agencies should always exercise that discretion in favor of public access, the analysis is rarely that simple.

Every exception is grounded in a specific policy designed to protect legitimate personal or governmental interests. Waiving the exception without careful consideration comes at a cost to those interests.

In an October 4 story, the Courier reported that Louisville Metro Police released records relating to an internal review of police conduct by its Professional Standards Unit following the Courier’s legal challenge to LMP’s partial denial of its open records request. The review grew out of concerns about how detectives “handled the investigation of a disabled teen who suffered two fractured legs after he was restrained by a teacher’s aide at a Jefferson County public school.”

LMP had released the records that initiated and concluded the investigative review — consisting of the letters notifying the detectives that a Professional Standards review was underway and letters advising them that the concerns were not sustained and that no disciplinary action would be taken – but denied the Courier access to the underlying Professional Standards investigative file.

LMP’s position was based on the preliminary documents exceptions found in the Open Records Law and a 1982 Court of Appeals’ opinion interpreting the exceptions in a nearly identical factual context.

Within a few days of the Courier’s appeal to the attorney general, LMP waived the exceptions and released the investigative file in its entirety.

LMP recognized that existing legal authority arguably supported its partial denial of the request. But LMP also recognized the substantial public interest in ensuring that it thoroughly and responsibly reviewed whether its detectives’ properly discharged their duties in investigating this very serious incident.

LMP concluded that the public’s interest far outweighed its arguable right to withhold the Professional Standards file. Here, “going public promotes the greater good.”

Also on October 4, the Courier reported on the University of Louisville’s decision to maintain the confidentiality of the applicants for its new president. The article did not identify the legal basis on which this decision was made, but the attorney general has recognized that the privacy exception to the Open Records Law authorizes agencies to withhold the identities of applicants for public employment while a search is proceeding and to continue to withhold the identities of unsuccessful applicants after a selection is made.

The attorney general’s position is based on the recognition that unsuccessful applicants may suffer reputational  damage as a consequence of being deemed less qualified than the successful applicant or they may experience retaliation by their current employer when they are “outed” as applicants for another job. The position finds direct support in federal case law and indirect support in state case law.

The risk of an open search, some experts suggest, may be a less qualified applicant pool from which to select.

The dilemma for the University of Louisville in deciding whether to waive the privacy exception and disclose the applicants’ identities is whether it should risk limiting the qualified applicant pool by conducting an open search.

Given the crisis in leadership which the university faces, it is critical that it cast the widest possible net for the best qualified applicants. To exercise its discretion in favor of waiving the privacy exception may, on the one hand, impede this goal. Asserting the exception by withholding the identities of the applicants may, on the other hand, undermine the public’s confidence in the process as well as the incoming president. The question is, therefore, would “going public,” in this case, “promote the greater good?”