Sunday, August 28, 2016

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. 

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