Agencies must be specific when stating why they're entering executive session

Public bodies intending to meet behind closed doors must clearly specify what will be discussed tin executive session and cite the exact Open Meeting exception that permits the topic to be covered outside the hearing of the public.
 

Attorney General Andy Beshear issued an opinion on June 27, 2016, in In re: The Advocate-Messenger/Boyle County Fiscal Court, 16-OMD-129, which dealt with an Open Meetings and an Open Records inquiry. 

Pamela Wright, a staff writer for The Advocate-Messenger, submitted an Open Records request to the Boyle County Fiscal Court on April 1, 2016, inquiring about the topic of discussion during a March 3, 2016, meeting. Wright stated that the court had not announced the general nature of the business to be discussed during an executive session. She also said that no reason was properly given as to why the matter was being discussed outside the hearing of the public and the media.

Wright appealed to the attorney general in a letter received by the office on May 13  after receiving no response from the fiscal court. 

The court responded through the county attorney, denying any violations of KRS 61.815(a), (c), or (d), but did not explain the lack of response to Wright’s request. 

Beshear first found that the county had violated the Open Records Act by not adequately responding to the request within the three-day period after receiving the request.  The request does not have to be fulfilled in three days, but the requester must be notified within that period that the agency will take further action on the request. 

As to the violations at the meeting, the fiscal court said that the item discussed immediately before the call for executive session was sufficient announcement of what was to be discussed in the session, and that quoting KRS 61.810(1)(g), was sufficient to give the reason for the session, ultimately claiming it met all statutory requirements for the executive session. 

The Attorney General's Office cited Floyd County Board of Education v. Ratliff, 955 S.W.2d 921, 923 (Ky. 1977), which states that the strict letter of the law of the Open Meeting Act must be followed or it violates the public good. In 00-OMD-64, the attorney general's office determined from the Ratliff decision that the statute requires more than a recitation of the exemption statute, but less than a detailed description of matter to be discussed. 

In that same 2000 opinion, the attorney general determined that the notification at the meeting “must include both a statement of the exception authorizing the closed session and a description of the business to be discussed couched in sufficiently specific terms to enable the public to assess the propriety of the agency’s actions.”

Beshear found the fiscal court violated the Open Meetings Act on March 3. The attorney general, however, due to the lack of information on the record about the topic could not determine if an executive session was permissible if the proper procedure was followed performed. 

Sheriff properly withheld documents that could impair another agency's continuing investigation

A police agency can withhold requested documents if the release of those documents would affect another police agency’s independent investigation that was ongoing.

Attorney General Andy Beshear issued an opinion on Aug. 3, 2016, in In re: The Kentucky Standard/Nelson County Sheriff’s Department, 16-ORD-162.  

On June 7, Forrest Berkshire, editor of The Kentucky Standard, requested documents dealing with the shooting death of Derek Downs in 2009. Sheriff Ed Mattingly notified Berkshire that the request had been declined at the request of Commonwealth Attorney Chip McKay on the basis of KRS 61.878(1)(h). Mattingly also spoke with the lead investigator who thought that releasing the documents may compromise his investigation. He also stated that after the investigation is closed the documents will be open for disclosure. 

Berkshire appealed the following day, stated that the department’s investigation into the death was completed in 2009, and the case against the shooter, Wayne Unseld, was taken to the county’s grand jury, which did not indict him. Unseld died in June. Berkshire also stated that the description of harm stated by the sheriff was not specific enough to satisfy the statute he cited.

Sheriff Mattingly responded it was clear Unseld had shot and killed Downs in 2009, but Unseld had been murdered. The Bardstown police were investigating that murder. Because there was some threats to the Downs family by Unseld, the sheriff believed there was a possibility that information in the Downs case could relate to the Unseld homicide. 

Beshear ruled felt Mattingly “minimally justified invocation of KRS 61.878(1)(h).” The opinion also cited to City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 850 (Ky. 2013), which says that the law enforcement exception needs to fulfill three requirements. “(1) that the records to be withheld were compiled for law enforcement purposes; (2) that a law enforcement action is prospective; and (3) that premature release of the records would harm the agency in come articulable way.”

Because the sheriff’s office and Bardstown police are both law enforcement, and Bardstown has an open and ongoing investigation into Unseld’s murder, the records were compiled in the process of an investigation of violations. An earlier attorney general opinion had recognized that when two agencies have concurrent jurisdiction or interest in same matter, records of one can be withheld under the statute if the disclosure can harm the other agency’s ongoing investigation (09-ORD-143). 

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AG's office correctly denied request due to overly broad nature to avoid fishing expeditions

Attorney General Andy Beshear issued an opinion regarding his own office in an Open Records opinion issued on July 6, 2016. 

The specificity of the request was at issue In re: Russell Carollo/Office of the Attorney General, 16-ORD-138.

Carollo requested access to and copies of all records dating back to January 2011 related to Deloitte, where he named specific types of documents he was looking for, plus all other public records related to the company. Carollo also requested the attorney general to include information that might be considered technically exempt. 

Beshear’s office responded in a timely manner, having spoken with Carollo the previous day about IRS forms prepared by the company, but having nothing to do with the company itself, stating the forms would not be produced. The office also deemed newsletters that briefly mentioned that the company was in the news were not responsive and would not be produced.

The office also refused to produce preliminary documents, due to the statutory exemption give to those types of documents, along with other work-product and attorney-client privilege materials.

Carollo appealed, asserting that the attorney general's office did not identify withheld materials specifically and because no legal exceptions were cited. The attorney general responded, stating that everything was sufficiently specific in descriptions, and that no partial documents were provided because the statute protects the whole document.

The opinion stated that when materials are non-responsive to an Open Records request, the public agency is not required to cite specific statutory exemptions to justify a denial of the documents. 

The two parties communicated through emails detailing the scope of Carollo’s request, where Carollo stated the attorney general's office could exclude the form 990s prepared by the business in question, but that Carollo wanted any contracts between the Commonwealth and Deloitte. The office provided Carollo with the appropriate agency for him to contact and request copies of such contracts. 

Beshear affirmed the denial of the broad request by Carollo based upon 16-ORD-082, issued at the beginning of May. Because Carollo asked for anything in any way related to Deloitte, even though he named specific types of documents, he left the door wide open when he requested “all public records” that in any way identify Deloitte. The statute requires a person requesting docments to “precisely describe” the records being requested.