Monday, December 17, 2018

Attorney general opinions deal serious blow to provisions of Open Meeting Law

By Amye Bensenhaver
for the Scripps Howard First Amendment Center
Three recent open meetings decisions issued by the Kentucky Attorney General have resolved the underlying open meetings disputes in favor of the public agencies whose actions were challenged. These decisions were issued despite the legislative recognition that “the formation of public policy is public business” and the judicial recognition that the “[f]ailure to comply with the strict letter of the law in conducting meetings of a public agency violates the public good.” 
On May 16, the attorney general determined that the Kentucky Board of Education did not violate the open meetings law when it failed to take a statutorily required vote on a motion to conduct a closed session. 
On May 30, the attorney general ruled that the Eastern Kentucky University Council on Academic Affairs was not a public agency under the statutory definition of the term and therefore not required to comply with open meetings requirements. 
And on June 14, the attorney general concluded that the Villa Hills City Council in Northern Kentucky did not violate statutes relating to meeting room conditions when people wanting to attend the meeting were denied entry because of crowded conditions.
In re: WDRB News/Kentucky Board of Education18-OMD-094, involved a widely publicized meeting of the state board of education at which then Department of Education Commissioner Steven Pruitt resigned near the conclusion of a marathon closed meeting conducted erroneously, the attorney general concluded. KRS 61.810(1)(f) permits agencies to conduct private discussions that might lead to the appointment, discipline, or dismissal of an employee. The attorney general recognized that a discussion of “an amendment” to Pruitt’s employment contract was not a legitimate topic for a closed session under the law and that the board violated the open meetings law by conducting a four-hour discussion of the unauthorized topic.
The attorney general did not, however, find any violation of the open meetings law based on the board’s failure to take a vote on the motion to conduct a closed session. KRS 61.815(1)(b) states that “[c]losed sessions may be held only after a motion is made and carried by a majority vote in open, public session.” Relying on a footnote from an open meetings decision issued in 2012, resolved on other legal grounds, the board argued that the law does not require “a verbal vote before going into closed session” and that the board fulfilled its legal obligation by “collectively [leaving] the boardroom without objection.” The attorney general accepted this argument. Citing numerous legal authorities recognizing that the necessity of strict compliance with the open meetings law, the attorney general nevertheless concluded that he could not “read a requirement into the statute that does not otherwise exist.”
Nor, however, could he read a requirement out of the statute that is found in existing law. 
This holding eliminates an unambiguous requirement that has existed in the law for decades. A “vote” is commonly understood to be a formal indication of a choice between two courses of action expressed by a show of hands or by voice.  Pursuant to KRS 61.835, it must be accurately recorded in the meeting minutes. The first and most obvious question the attorney general’s holding raises is how will the “vote” be recorded in the minutes of the meeting. The second and perhaps more serious question is how far will the holding be extended.
Two weeks later, the attorney general issued 18-OMD-101, In re: Nancy McKinney/Eastern Kentucky University, in which he held that the university’s Council on Academic Affairs, which is identified on the university’s website as “the major policy-making body for academic programs,” is not a public agency because it “is not created by the Board of Regents or by legislative act, but by a single person, the Provost,” and it “functions to advise the Board of Regents, with no policy or decision-making authority.” In affirming the position that the council is not a public agency because it is too remote from the decision-making process, the attorney general rejected proof that the council is a standing committee of the university that, according to its weblink,  “processes, reviews, and votes on the approval or disapproval of curriculum changes including new courses, course revisions, course deactivations, new programs, program revisions, program suspensions, new policies, and policy revisions” and that its “[m]ajor actions. . . are reviewed by the Faculty Senate and subsequently presented to the president of the university and the Board of Regents for final approval.”
The term “public agency” is broadly defined at KRS 61.805(2) to ensure that the public interest in “the formation of public policy” is not abridged by the exclusion of committees through a narrow construction of the term. By limiting the expansive sweep of the definition, 18-OMD-101 “thwarts the intent of the law,” has implications far beyond the EKU Council on Academic Affairs.
The attorney general issued 18-OMD-118, In re: Steven Schletker/City of Villa Hills, on June 14 affirming a city council’s actions in addressing overcrowding at a regular meeting attended by a large group of citizens, many of whom were denied access to the meeting room. The attorney general concluded that the council “took what limited action was feasible to ensure public participation, by inviting the people in the hallway to come into the council chambers” notwithstanding fire code restrictions limiting room capacity, the absence of available seating, and the fact that least 25 attendees remained in an outer hallway.
The attorney general acknowledged that in 2013 the General Assembly amended two open meetings provisions to address the issue of overcrowding. KRS 61.820(1), as amended, states that “[i]n considering locations for public meetings, the agency shall evaluate space requirements, seating capacity, and acoustics.” KRS 61.840, as amended, also directs public agencies to “provide meeting room conditions, including adequate space, seating, and acoustics, which insofar as is feasible allow effective public observation of the public meetings.” Nevertheless, the attorney general rejected the complainant’s argument that the council’s efforts to relieve the overcrowding issue were inadequate under these amendments, focusing on the fact that the council had conducted past meetings in the same meeting room, that it had no reason to expect a larger than normal crowd, and that alternative meeting sites were not immediately available.
18-OMD-118 relied, in large part, on open meetings decisions and a Supreme Court case, Knox County v. Hammons, that pre-date the 2013 amendments, making only passing reference to the additional responsibilities imposed by those amendments. In the earliest of these open meetings decisions,  97-ORD-28, the attorney general held that “a public agency confronted with a crowd that is larger than anticipated is ‘under a duty to make some attempt to correct the matter.’” In that decision, the attorney general concluded that although the open meetings law did not “specify the particular action an agency must take,” the agency violated the law by failing to make even “reasonable efforts . . . to provide a place where the public could effectively observe.”
Since the 2013 amendments, the open meetings law is far more specific as to the particular action an agency must take to address overcrowding. By applying the pre-amendment statutory language and analysis, focusing on the “feasibility” of alternative action, and largely overlooking the fact that at least 25 people were unable to enter the room, take seats, and “observe the meetings with their eyes and ears,” 18-OMD-118 effectively nullifies these amendments. 
The net effect of each of these open meetings decisions is to narrow the scope and application of the open meetings law in violation of “the public good."

Court of Appeals debunks University of Kentucky's "novel" challenge to open records law

By Amye Bensenhaver
for the Scripps Howard First Amendment Center

An “unheralded” opinion of the Kentucky Court of Appeals involving the Lexington Herald-Leaderand the University of Kentucky addresses several of the most confounding exceptions to the open records law and warrants far greater attention than it received. 
Issued on September 14, University of Kentucky v. Lexington H-L Services, Inc. D/B/A Lexington Herald-Leader arose from the Herald-Leader’s challenge to the university’s failure to comply with the open meetings law at a May 2016 meeting of the Board of Trustees to discuss the termination of its affiliation with the Appalachian Heart Center in Hazard and the university’s refusal to release, among other records, a university-directed audit of clinic physicians’ medical documentation and the billing for their services. 
The Herald-Leader’s legal challenges under the Open Meetings and Open Records laws were resolved in favor of the newspaper by the Office of the Attorney General and, with one exception, affirmed by the Fayette Circuit Court. The Court of Appeals therefore considered only the issue of access to the audit records which, it found, were the basis for the university’s decision to refund all payments received for the period in question.
The university argued that the audit records were exempt from disclosure under the over-used preliminary documents exception to the open records law, asserting that they were not adopted or incorporated into its final action and that they also qualified for protection under the attorney-client privilege or the work product doctrine because they were ultimately provided to the university’s chief medical compliance office and its general counsel. 
The court rejected the university’s argument that caselaw determining that preliminary documents lose that status once they are adopted into final agency action is not consistent with the language of the exceptions. In the same vein, it assigned little weight to the university’s policy arguments relating to the impediments to investigations posed by disclosure of preliminary records like the audit records.
It focused instead on the university’s argument that the audit documents retained their preliminary status because they were not incorporated into a final agency action, namely, its repayment of charges, but were “part of its regular course of business” to ensure that the clinic complies with federal law. Characterizing the university’s argument as “novel,” the court concluded that “the university took its final action based upon the information revealed during the audits” and that the formerly internal, preliminary records forfeited that status when adopted into final action. 
The court relied on past opinions but most importantly stated, for the first time, that “the Act does not require that an agency reference or incorporate specific documents in order for those records to be adopted into the final agency action,” putting an end to the frequently made agency argument that preliminary records must be expressly referenced or incorporated in order to lose protection under the preliminary documents exceptions.
Similarly, the court adopted a narrow interpretation of the attorney-client privilege and work product doctrine, both invoked by the university in its effort to resist disclosure. Specifically, the court held that the audit was neither prepared nor conducted under the direction of either its inside or outside counsel and that the university “did not contend” it was “intended to be disclosed only to counsel for the purposes of preparing legal advice.” For these reasons, the court rejected the university’s reliance on the attorney-client privilege. 
Finally, the court rejected the university’s reliance on the work product doctrine, “a qualified privilege from discovery for documents ‘prepared in anticipation of litigation or for trial’ by that party’s representative,’” including an attorney, declaring that the audit documents "were prepared in the course of the university’s normal business oversight of the clinic’s operation, and only remotely in anticipation of potential litigation.” Additionally, the court found that the audit documents were primarily factual and did not contain an attorney’s impressions, conclusions or legal theories.
Again, the court gave a narrow reading to the over-used privileges in what was a rare opportunity to examine them in the context of an open records appeal. 
The decision was written by Judge Irv Maze. The panel also included Judges Sara Combs and Donna Dixon. On October 12, the university petitioned the Kentucky Supreme Court for discretionary review of the opinion. The case therefore may not be final. 
Amye Bensenhaver, a graduate of the University of Kentucky Law School, is a retired assistant attorney general who specialized in Open Records and Open Meetings appeals. 

Governor Bevin's invitation-only education symposium poses open meeting questions

By Amye Bensenhaver
for the Scripps Howard First Amendment Center

The Council on Postsecondary Education, in partnership with Gov. Matt Bevin, recently announced an invitation-only symposium at the Louisville Marriott East on Tuesday (Dec. 18). Bevin will make opening remarks at 9 a.m., after a networking breakfast, and the keynote speaker, Dr. Michael Crow, president of Arizona State University, will discuss “The Role of Postsecondary Education in the 21st Century.”
At 10:45, invitees will “break out into one of four sessions to allow for opportunities to weigh in, provide feedback, and further discuss strategies that Kentucky’s postsecondary education institutions may be able to implement.” At noon, the invitees will attend a luncheon emceed by council President Aaron Thompson, and the governor will again address the assembly.
In response to inquiries from a faculty member whose request to attend was denied, the Council on Postsecondary Education advised that “due to the size of the venue and the cost to put on the event and provide meals for the invitees, the invitation was limited to each public university president, board members, and up to two staff members chosen by the president.” President Crow’s comments, and the governor’s luncheon address, will be livestreamed.
Further inquiries confirm that the council does not view the symposium, at which a quorum of the members of the governing boards of several public agencies, including the council, will be present as “a formal meeting of the CPE . . . due to the event’s general content and structure.” 

Nevertheless, the council indicates it will provide proper notice to fulfill its open meetings obligations and that the media will be admitted. Faculty, students, and the general public will be excluded.
The event raises concerns about open meetings compliance. The law mandates that all meetings of a quorum of the members of a public agency at which public business is discussed and/or action is taken must be open to the public. The meeting need not be “formal,” since that term is broadly defined as “all gatherings,” including “informational or casual” gatherings, regardless of where they are held.  
The attorney general has recognized that a quorum of the members of an agency can attend a conference or symposium at the invitation of an outside sponsor without violating the open meetings law as long as the members listen and learn but do not discuss the business of the agency they serve. 
Given the presence of a quorum of the members of several public university boards and the council, the focus of the symposium, and the time allocated for participants to discuss “strategies that Kentucky’s postsecondary education institution may be able to implement,” the closed meeting may trigger the requirements of the open meetings law. 
If, in fact, the symposium is subject to the open meetings law, the decision to admit the media but exclude faculty members, students, and the public raises the issue of selective admission. A public meeting that is open to one must be open to all.  
Amye Bensenhaver, a graduate of the University of Kentucky Law School, is a retired assistant attorney general who specialized in Open Records and Open Meetings appeals. 

Wednesday, May 31, 2017

Think tank, open-government expert propose changes to state meetings and records laws

By Al Cross
Director, Institute for Rural Journalism and Community Issues
School of Journalism and Media, University of Kentucky

A conservative, libertarian policy center has teamed up with a widely recognized expert on Kentucky's open-government laws to propose several major changes to the law, which haven't been greatly revised in more than two decades. The Kentucky Press Association has been wary of opening up the laws for fear the General Assembly would leave them weaker, not stronger.

Amye Bensenhaver, who for 25 years was the leading official interpreter of the open-records and open-meetings laws, presented her recommendations to the State Government Bar Association in Frankfort Tuesday. She is director of the new Center for Open Government created by the Bluegrass Institute for Public Policy Solutions, which plans to post the proposals online Monday.

The proposals include:
  • Making the state court system subject to the Open Records Act, reversing a state Supreme Court decision, which could take a constitutional amendment.
  • Strengthening the power of the attorney general's office, which makes initial decisions in open-government cases, to get confidential information from public agencies that have denied open-records requests.
  • Making texts, emails and other electronic documents created on public officials' private devices open records when they deal with public business.
Bensenhaver's recommendations fell into three categories: clarification of the laws, reconciliation of laws that may be in conflict, and modernization to keep up with recent technologies. In describing them, she took obvious pleasure in giving her personal opinions, something from which she was restrained as an assistant attorney general.

Clarification: The Supreme Court, citing the constitutional principle of separation of powers, ruled in 1978 that the General Assembly couldn't apply the 1976 Open Records Act to the state court system.

The system, overseen by the court, has generally observed the law in most cases while making clear that its compliance is voluntary. "They're not even accountable for monies they receive out of the General Fund," Bensenhaver said. "There may be some core functions" that need to be exempt, but not the spending of public dollars, she said.

When a public agency denies an open-records request, the requester can make a no-cost appeal to the attorney general. The law says the attorney general can request copies of the records to help decide the issue, but must not disclose them. The law does not say explicitly that the agency must provide the records, but that is its clear intent, Bensenhaver said.

The University of Kentucky has refused several times to give the attorney general records for review, saying other laws allow it to do so. Bensenhaver said the law should be rewritten to let the attorney general "declare that an agency’s refusal to comply with his request for additional documentation constitutes agency failure to meet its statutory burden of proof and to find against the recalcitrant agency on that basis alone."

When it comes to the Open Meetings Act, one problem is "serial meetings" of less than a quorum of members who discuss public business and collectively amount to a quorum of an agency board. The law says any such series of meetings "held for the purpose of avoiding" openness is subject to the law, but allows meetings "to educate the members on specific issues. Typically, members say they didn't intend to circumvent the law or say such meetings were only educational, so the law is "kind of limp," Bensenhaver said.

She noted that UK trustees held a series of such meetings on the university budget. She asked, "What could be more interesting to the public, as tuition rates rise?" and recommended that the General Assembly should redraft the law "to ensure that the purpose supporting its enactment is not defeated."

One of the vaguer open-government laws is the one that applies the Open Records Act to any "body" that gets from state or local government at least 25 percent of the money that it spends in Kentucky. In 2012, the General Assembly said that rule applied to "any fiscal year" but exempted money paid for goods or services obtained through public, competitive bidding.

"What they did in 2012 was quite unfortunate," Bensenhaver told the state-government lawyers. "It allows an awful lot of big fish to get through the net." She made no specific recommendation for a change, but said legislators need to decide the intent of the original law "and develop language that achieves that goal" and allows the attorney general to get information to determine whether an entity has reached the 25 percent threshold.

Jim Waters, president of the Bluegrass Institute, said he has had discussions with legislators about the 25 percent law, which has been the topic of unsuccessful legislation in the last two sessions, and the extension of the records law to the court system.

Reconciliation: There are gaps, overlaps and conflicts between the Open Records Act and the Open Meetings Act. Bensenhaver said the General Assembly needs to reconcile them.

For example, a public agency board may discuss a proposed budget in an open meeting but refuse to release copies of the budget on grounds that it is a preliminary document. (City councils can't do that, under a 2010 records decision obtained by KPA for the Midway Messenger.) Another issue is employee performance evaluations, which have some legal protection but must be discussed in open session.

Bensenhaver said the legislature should reconcile the conflicts "in a manner that promotes responsible agency discussion and meaningful public scrutiny," with an open-meetings exception for discussion of exempt records. "Where the public’s right to know outweighs any actual need for confidentiality, the laws should permit access to records and discussion of records," she said.

Bensenhaver also called for repeal of "a very dangerous provision" of the meetings law, which arguably exempts most agencies from the requirements for going into a closed session. She said the courts have ignored the conflicting laws, and the attorney general's office has construed them "in a manner that avoids consequence," but the laws "could be used to justify unannounced closed sessions and final action in closed session."

Also, Bensenhaver said the open-meetings law needs to place the burden of proof in an appeal on the public agency, just as the open-records law does. "The agency has a monopoly on the facts but is not required to sustain its action by proof (such as sworn affidavits of members)," she wrote.

Modernization: Aside from adding references to email for correspondence, Skype for teleconferences and smartphones and scanners to "reproduce records onsite," Bensenhaver identified two major areas that need better definition to keep up with modern technology that has caused agencies to create many more records.

She said the legislature needs to better define "unreasonable burden" on an agency as an excuse to deny a records request. She said the 1976 General Assembly "couldn't envision requests that would involve millions of records."

Bensenhaver called for reversal of a "poorly reasoned" open-records decision by Jack Conway on his last day as attorney general in 2015, exempting records created by private devices such as smartphones. "That decision would not withstand judicial scrutiny for one minute," she said. "You're essentially saying, do all your business on private devices, and don't even discuss it at a public meeting."

Bensenhaver wrote, "These records are public records . . . despite Kentucky officials’ reluctance to acknowledge their status as such. This reluctance poses the gravest threat to open meetings, open records and government accountability generally."

Finally, Bensenhaver said penalties for violating open-government laws need to be "enhanced," by making an agency pay the requester's legal fees and court costs if the agency loses at the attorney general's office and again in circuit court. "Such a revision would discourage agencies from initiating bad-faith appeals and encourage citizens to pursue their rights under the open meetings and open records laws with less fear of incurring financial hardship should the dispute go to court," she wrote.

Bensenhaver was asked whether opening up the laws could lead to the attorney general's office losing its quasi-judicial powers, since Democratic Attorney General Andy Beshear is at odds with Republican Gov. Matt Bevin and Republicans also control the House and Senate.

She said the best solution would be to keep such reviews out of any political office, and noted that some states have created independent authorities to make initial rulings on open-government appeals.

The newest of those is the Iowa Public Information Board, which has nine members appointed by the governor and confirmed by the Senate. No more than three members represent the news media, and no more than three represent local governments. The members serve staggered four-year terms, and are balanced by party and gender.

Bensenhaver resigned from the attorney general's office last summer, saying she was put "under considerable duress" by Beshear and his lieutenants, "the last straw" being a reprimand for talking to a journalist writing a story on the 40th anniversary of the records law. She said her difficulties reflected an increased politicization of the AG's open-government role under Beshear and Conway.

Wednesday, November 9, 2016

UofL Foundation wrongly claimed it had no records responsive to request, violated law

The University of Louisville Foundation violated the Open Records Act when it improperly claimed it had no records that were requested.

On Sept. 12, Attorney General Beshear issued an opinion in the appeal of an Open Records denial in In re: Brendan McCarthy/University of Louisville Foundation, Inc., 16-ORD-204.

McCarthy requested documents about funds used by the foundation placed outside the continental United States on Dec. 17, 2015.

The foundation responded on Dec. 23, 2015 denying it had possession of requested records. McCarthy appealed on Aug. 10, 2016.

In the appeal, McCarthy showed that the foundation’s tax forms illustrated extensive investments in Europe, Central America and the Caribbean, and that the duty under the Open Records Act is not relieved by putting such records in another location.

In its appeal, the foundation cited KRS 61.878(1)(c)(1), an exemption for records that are confidential and proprietary, which would, if made public, would be unfair commercial advantage. It thereby gave records that were redacted pursuant to the cited section of the Act.

The attorney for the foundation argued since records were given, though redacted, the appeal was moot, but Beshear felt differently since the records were not released in their entirety.

Beshear found that the initial response of the foundation having no responsive records was a violation of the Open Records Act. For the redactions and exemption claim, Beshear’s office has not received a description of the redactions or an explanation of how the exemptions apply to the redactions.

Due to the failure to properly explain the exemption as to the redactions, Beshear found that the foundation failed to meet its burden under the Open Records Act and its handling of McCarthy’s request was a violation as well.

UofL Foundation failed to meet burden on illustrating why it was proper to deny a request

The Attorney General's Office issued two opinions on Aug. 5 relating to the University of Louisville Foundation's lack of response to a request for documents. 

First, In re: Kentucky Center for Investigative Reporting/University of Louisville Foundation, 16-ORD-164, The Kentucky Center for Investigative Reporting’s managing editor Brendan McCarthy requested attestation and disclosure forms from people associated with the University of Louisville Foundation and ethnic and financial disclosure forms as well on Feb. 8, 2016. 

On March 2, the foundation denied McCarthy’s request. The foundation asserted that it was a burdensome request because it was overly broad and involved a lot of work to find records that were scattered and covered more than 46 years. 

McCarthy resubmitted his request, seeking the documents from the past four years. McCarthy emailed the foundation’s records custodian, Kenyatta Martin, on April 21 and May 11 to figure out the status of his amended request. On May 23, McCarthy spoke with the foundation’s counsel, David Saffer, who asked for a recap to help track it down. He followed up four days later, then all communications ceased. 

The foundation still contended the amended request was burdensome and denied the request. By not elaborating on why the four-year period was still burdensome, compared to the initial 46-year request, the attorney general found that the foundation did not fulfill its burden in proving, by clear and convincing evidence, that producing the records was unreasonably burdensome, in able to deny the request. 

Beshear also stated that the foundation failed to fulfill the three-day response requirement set forth in the law, taking a month to respond to the initial request and never responded to the amended four-year request. 

The AG cites Commonwealth v. Chestnut, 250 S.W.3d 655, 664 (Ky. 2008) to show that the Kentucky Supreme Court recognized that there is a high burden of proof on an agency that is refusing to comply with an Open Records Request, as that agency must show through clear and convincing evidence that the request is unreasonably burdensome. Since the Foundation presented no evidence as to why the four years was unreasonably burdensome, the Foundation violated the Act both in response time and substantially by not meeting its burden of proof. 

In In re: Kentucky Center for Investigative Reporting/University of Louisville Foundation, 16-ORD-165, Beshear quickly reiterated the facts, based on 16-ORD-164, and found that the foundation again violated the Act by not replying to the initial Feb. 8 request in a timely manner, by taking nearly a month to respond. He also stated that it did not meet the burden of proof in showing that the request was too burdensome to respond to.