Monday, March 21, 2016

Even the governor is subject to open records requests

Many of the open records opinions issued by Kentucky's attorney general deal with local governments, but it should not be forgotten that the law applies even at the highest levels of state government.

This week, the AG's office released an opinion that concerned requests to Gov. Matt Bevin and his office.

In In re: Louisville Public Media/Office of the Governor, 16-ORD-039 (issued March 16, 2016), Louisville Public Media ("LPM") had two particular requests for the governor and his office.

First, LPM requested records from the governor's office that would demonstrate any meetings between the governor or his staff and University of Louisville President James L. Ramsey or the president's staff, according to the facts of the opinion.

Second, LPM requested records from the governor's office concerning communications between the Cabinet for Health and Family Services and the governor's office regarding abortion clinics, according to the opinion.

As to LPM's first request, the governor's office claimed that it had found one responsive email, but that it was preliminary in nature, and as such, was exempt from disclosure under the Open Records Act.

As to the second request, the governor's office claimed that the responsive emails that it had found were either preliminary in nature and, thus, exempt, and/or were exempt from disclosure based on attorney-client privilege.

LPM appealed the denial of its records requests, and the AG's office asked the governor's office for the responsive documents to review them in camera.

After reviewing the documents, the attorney general's office found that the governor's office was justified in withholding the email regarding the governor's schedule as preliminary and several of the emails responsive to the requests concerning the abortion clinics as either preliminary and/or based on attorney-client privilege.

However, the AG also found that two emails relating to the abortion clinics—one that only contained a fax number and one that contained a link to a Facebook post—were improperly withheld.

The opinion also found that the governor's office procedurally violated the open records act in not first detailing the reasons it had withheld responsive records concerning the governor's schedule, but that it had subsequently cured that violation by explaining its reasons for not disclosing the records on appeal.

Though not all responsive records were required to be disclosed in this case, individuals still should be mindful of their ability to request such records and should not be afraid to do so.

This opinion serves as an important reminder that individuals can request records from even the highest executive officer in the state.

The attorney general mentioned this opinion in a Lexington Herald-Leader article Monday concerning another opinion from his office, which found that Gov. Bevin does not have the power to remove duly appointed Kentucky Horse Park commissioners.

Sunday, March 20, 2016

Open meetings law, the other aspect of government transparency

A government acts through its people, and the decisions of the government are often made during open meetings.

Though this blog often focuses on Kentucky open records decisions, the open meetings decisions issued by the state's attorney general also factor into the overall scheme of individuals' ability to keep an eye on state and local governments.

A recent open meetings opinion discussed one limitation placed on public agencies in holding meetings.

In re: Lawrence Trageser/Spencer County Fiscal Court, 16-OMD-036 (issued March 10, 2016), Trageser filed a complaint with the fiscal court on January 7, 2016, charging that magistrates had met with the sheriff in less than quorum meetings to avoid discussion of the sheriff's budget in a public meeting, according to the attorney general's opinion. Trageser urged that the meetings would have collectively constituted a quorum of the fiscal court. 

The magistrates responded to Trageser on January 11, in a reply prepared by the Spencer County Attorney, and acknowledged the meetings, according to the facts in the opinion. The magistrates also acknowledged that they would have constituted a quorum.

The baseline for Kentucky open meetings law appears in KRS 61.810(1). 

That statute 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 . . . ." The statute then lists a number of exceptions to the general rule. 

Based on these facts between Trageser and the fiscal court, the attorney general's office found that the fiscal court had violated KRS 61.810(2). That statute reads:
Any 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 and where the meetings are held for the purpose of avoiding the requirements of subsection (1) of this section, shall be subject to the requirements of subsection (1) of this section. Nothing in this subsection shall be construed to prohibit discussions between individual members where the purpose of the discussions is to educate the members on specific issues.
The attorney general's opinion relied on its reasoning from an earlier instance that it described as "a nearly identical factual context" in which several members of the Butler County Fiscal Court had met with the county's sheriff, "in a series of less than quorum meetings, to discuss the sheriff's budget." 

Here, the AG's opinion discussed its earlier analysis that "'[t]he right of the public to be informed transcends any loss of efficiency,' and that the public’s right to be informed includes not only the right to know what decisions are made but how they are made." (The opinion cited to Lexington Herald-Leader Co. v. Univ. of Ky. Presidential Search Comm., 732 S.W.2d 884, 886 (Ky. 1987), and KRS 61.800.)

Finding that its decision concluding that magistrates for the Butler County Fiscal Court had violated the state's open meetings law, the AG opinion also found that the actions of the magistrates in Spencer County also constituted a violation of the act.