Friday, August 21, 2015

Defining 'public agency' under Kentucky's open meetings, records laws

One of the issues that can arise under the state's open meetings and open records laws is that an entity can claim that it is not a public agency. A determination of a body's status as a public agency affects whether it must comply with the state's openness laws. 

Thus, defining what is a public agency under state law is an important topic for understanding the requirements placed on such agencies in Kentucky.

KRS 61.805 defines public agency for open meetings purposes, and KRS 61.870 defines the term for open records purposes.

The following list includes the entities Kentucky's open meetings law defines as public agencies. Though the statute can be a bit dense to read, setting out the statute in full provides a basis for understanding two recent decisions of the attorney general's office that addressed whether bodies are public agencies. 

Under Kentucky's open meetings law, a "public agency" is defined as:

  • (a) every state or local government board, commission, and authority; 
  • (b) every state or local legislative board, commission, and committee;
  • (c) every county and city governing body, council, school district board, special district board, and municipal corporation;
  • (d) every state or local government agency, including the policy-making board of an institution of education, created by or pursuant to state or local statute, executive order, ordinance, resolution, or other legislative act;
  • (e) any body created by or pursuant to state or local statute, executive order, ordinance, resolution, or other legislative act in the legislative or executive branch of government;
  • (f) any entity when the majority of its governing body is appointed by a “public agency” as defined in paragraph (a), (b), (c), (d), (e), (g), or (h) of this subsection, a member or employee of a “public agency,” a state or local officer, or any combination thereof;
  • (g) any board, commission, committee, subcommittee, ad hoc committee, advisory committee, council, or agency, except for a committee of a hospital medical staff or a committee formed for the purpose of evaluating the qualifications of public agency employees, established, created, and controlled by a “public agency” as defined in paragraph (a), (b), (c), (d), (e), (f), or (h) of this subsection; and
  • (h) any interagency body of two (2) or more public agencies where each “public agency” is defined in paragraph (a), (b), (c), (d), (e), (f), or (g) of this subsection. 
In re: Robert Barker/Bourbon County Board of Assessment Appeals, 15-OMD-154, the attorney general's office found the county board had failed to refute Barker's allegation that it was a public agency under the state's open meetings act.

There, Barker had appealed to the attorney general's office after he felt the county board failed to adhere to statutory requirements for a meeting in June, at which his property tax assessment appeal was heard. 

In its analysis, the attorney general's office stated that it could "find no express or implied exclusion for the board from the requirements of the Open Meetings Act." The attorney general's office also could not locate any statute or any administrative regulation that addressed "the board's public hearing process or its exclusion from the requirements of the Open Meetings Act." 

Thus, the attorney general's office sought to determine whether the county board fell into a definition of public agency provided under the open meetings law and found that:

[t]he Bourbon County Board of Assessment Appeals is a local government board that is created pursuant to state statute whose governing body is appointed by a public agency, the Bourbon County Fiscal Court, and two local officers, specifically, the county judge/executive and the mayor.  It therefore falls squarely within the definition of the term “public agency." 
As a public agency, the county board had to comply with the open meetings act's requirements, and it failed to do so when it excluded Barker from portions of its meeting without citing a statutory basis for its actions, the attorney general's office found.

Similarly, in re: Jim Waters/Kentucky Board of Education, 15-OMD-155, the attorney general's office found that a committee of the board of education was a public agency under Kentucky's open meetings law.

There, Waters, president of the Bluegrass Institute for Public Policy Solutions, challenged the board of education's denial of his open meetings complaint. In his complaint, Waters asserted that a committee of the board had failed to observe statutory requirements.

In its review, the attorney general's office noted that "public agency" is broadly defined under Kentucky law. Since the committee had been created by the board and was charged with a specific task---that of managing and narrowing the search for a firm to help the board find a new commissioner of education---the attorney general's office agreed with Waters' characterization of the committee as a public agency.

In both of these decisions, a finding by the attorney general's office that an entity was a public agency had ramifications for what was expected of the body under Kentucky law.

The key point is that if a particular group is found to be a public agency, it must comply with the statutory requirements of the state's open meetings and open records laws.

Thursday, August 13, 2015

Keeping an eye on Kentucky's public agencies

The aim of this blog is to provide citizens of Kentucky with analysis of open meetings and open records decisions by the state's attorney general.

Every state in the nation has laws that seek to provide the public with access to certain information and documents of governmental agencies. These laws are sometimes labeled "sunshine laws" because they expose what public officers or departments might otherwise prefer to keep hidden or in the dark.

Kentucky's legislature has explained, through statute, that the public policy of the state's open records law is based on the idea "that free and open examination of public records is in the public interest." As such, the exceptions allowed under the law for types of records that need not be disclosed are to be strictly construed. (See KRS 61.871).

In Kentucky, individuals who feel that a public agency has not complied with the state's open meetings or open records laws may appeal to the attorney general for an opinion on the matter. If the individual or agency is not satisfied with the attorney general's decision, an action may be filed in the appropriate circuit court.

A helpful overview of the state's open meetings and open records laws from a public agency's perspective is available on the attorney general's website. A guide for individuals is also available. Further, a video that the Scripps Howard First Amendment Center produced for public officials is available here.

Public meetings and public records opinions are usually issued on a weekly basis. In order to remain timely, new posts will be added to this blog shortly after such opinions are issued.

The following decision was released Aug. 6, 2015, and provides an example of the types of issues the attorney general's office reviews in relation to Kentucky's open meetings and open records laws.

  • In re: Kelly Wiley/Cabinet for Health and Family Services, 15-ORD-144, the attorney general found that the Cabinet had subverted the intent of the open records act by trying to impose a $75 per hour fee on the retrieval of requested documents.
    • Under Kentucky law, a "public agency may prescribe a reasonable fee for making copies of nonexempt public records requested for use for noncommercial purposes which shall not exceed the actual cost of reproduction, including the costs of the media and any mechanical processing cost incurred by the public agency, but not including the cost of staff required." (See KRS 61.874). 
    • Though the record request had not been denied in this case, the individual was still permitted by state law to appeal to the attorney general's office. (See KRS 61.880). 
    • In the opinion, the attorney general's office found that "[i]n attempting to impose an excessive fee for the retrieval of documents rather than charging the cost of reproduction, CHFS subverted the intent of the Open Records Act short of denial of inspection."
      • The attorney general's office cited several of its former opinions, which recognized that public agencies may charge for costs of reproduction but not for costs of retrieval. 
This blog will not seek to discuss every opinion of the attorney general. Instead, more attention will be given to opinions that involve well known public agencies, such as those affecting institutions of higher learning or state cabinets, or opinions whose reasoning demonstrates a policy in favor of disclosure. Decisions by Kentucky state courts will also be reviewed when applicable.

From time to time, this blog may also include posts related to the open meetings or open records decisions of other states or of requests made under the federal Freedom of Information Act.