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.