Richmond board must follow Open Meetings Act before it can adjourn to closed session

The City of Richmond Codes Enforcement Board violated the Open Meetings Act, according to the attorney general's opinion. 

On Oct. 18, Andy Beshear, the Kentucky Attorney General, issued an opinion in the matter of In re: Ray Gough/City of Richmond Codes Enforcement Board, 16-OMD-227.

The board held a meeting on June 15, 2016. In that meeting, testimony was heard about condemning a house, after which the board went into executive session to discuss. After the session ended, the board voted to condemn the house. The minutes of the meeting did not reflect the vote of the code enforcement board.

Gough submitted his Open Meetings complaint on Sept. 8, 2016, stating that the closed session was not authorized or the board did not follow the correct procedures when entering the closed session. He included remedies in his complaint.

The board responded on Sept. 13. The response stated it was a quasi-judicial body and could go into executive session to “evaluate and discuss the evidence as to its endeavors to reason a decision,” per KRS 61.810(1)(j).

Gough appealed to the attorney general's office on Sept. 29. He argued the board does not fall within the statute cited in the board's response and that KRS 61.8815 requires code enforcement boards to hold all meetings with public access.

He also argued that none of the prerequisite requirements were taken to enter closed session, and finally that the board took final action in the closed session while failing to record the vote on the minutes.

On Oct. 6, the Board responded by stating it is in fact a quasi-judicial body and is not required to comply with formalities of closed sessions. It also denied any final action was taken in the closed session.

Beshear noted that not only does KRS 61.8815 apply to public agencies when they have meetings, but the Open Meetings Act does as well. He also stated that his office does not have the power to enforce violations of that statute in the context of an Open Meetings appeal.

He went on to find that the code enforcement board is required to follow the formalities when it enters a closed session, per KRS 61.815(1). In not doing so, the Richmond board violated the Open Meetings Act. The opinion also found insufficient evidence the board took final action in the closed session.

Request for records in a nonstandarized format gives discretion to state agency

The Kentucky State Police did not violate the Open Records Act by providing the documents in a portable document format in response to a request for the records in an Excel spreadsheet.

On Oct. 17, 2016, Attorney General Andy Beshear issued an opinion in the appeal of an Open Records request in In re: Marcus Green, WDRB/Kentucky State Police, 16-ORD-225.

Green, a WDRB reporter, on Aug. 5, 2016, requested records relating to state police acquisition and auction of weapons. He asked for the information in an Excel spreadsheet “should it exist.”

State police responded on Aug. 15 with a copy of the requested records on a compact disc with the results in PDF formatting.

In the appeal, Green argued about the difference in format, stating that “KSP’s decision to provide a database kept in Excel or a machine-readable format as a PDF violates” the act, citing KRS 61.874(2)(a).

Beshear compared the actual request with the wording of KRS 61.874(2)(a), as Green merely requested the information would be preferable if it existed. He also noted that Excel files are not standard electronic format.

Beshear noted that the request for Excel format was nonstandarized, which then required him to look at KRS 61.874(3), for how the agency may respond. The law says that the agency “may at its discretion” provide it in the requested format.

Here the state police exercised its discretion and chose not to provide in the requested format, which means the agency did not violate the Open Records Act.

Jefferson County schools properly withhold school bus video

Jefferson County Public Schools properly withheld school bus video from a requesting party.

On Oct. 18, 2016, Attorney General Andy Beshear issued an opinion in the matter of In re: Todd Greenwell/Jefferson County Public Schools, 16-ORD-226.

Greenwell requested a copy of any school bus video for a crash that occurred on Nov. 5, 2015, on both April 22 and April 29, 2016.

The initial request denied on April 28 as an educational record protected by the Family Educational Rights and Privacy Act and Kentucky’s equivalent, Kentucky Family Educational Rights and Privacy Act .

In the April 29 request, Greenwell provided an authorization signed by guardian of a student on the bus, that he represents. On May 4, the school system responded that 33 students were on the bus at the time and they do not have consent from all parents, nor was it possible to blur the faces of everyone but Greenwell’s client.

The appeal was initiated Aug. 8.

The response from the school system cited KRS 61.878(1)(k) and (l), which incorporate FERPA into the Open Records Act exemptions.

Citing 99-ORD-217, Beshear noted that school bus footage is an education record containing FERPA and KFERPA exempt information and that redaction would be almost impossible, and some student could still be identified in various ways, per 07-ORD-005.

Beshear concluded by staying nothing in the appeal illustrated a reason to move from prior decisions, so he found no Open Records Act violations.