By Al Cross, Midway Messenger, Editor and publisher
Next week is Sunshine Week, the annual attempt by news media and other advocates of open government to remind the public that our democratic republic works well only if the governed know what their elected and appointed officials are doing in their name.
This is not a subject that the public appears to care much about, except when officials try to hide things that should be subject to public scrutiny, such as correspondence that can reveal or suggest how or why they made decisions, or discussing behind closed doors things that don’t fit any of the exceptions to open-meetings laws.
A couple of those examples cropped up in Woodford County and the Kentucky General Assembly this month, providing a handy predicate for Sunshine Week and illustrating why you should care about it.
The Woodford Sun reported that Versailles City Council Member Aaron Smither defended the decision of the council committee he chairs to meet confidentially with an out-of-town law firm hired to explore public-private partnerships to finance reuse of the city’s old police station. “Council Member Lisa Johnson, a member of the committee, disagreed, saying the stated purpose of the meeting had nothing to do with an acquisition or sale of property (which are among the reasons a government body can vote to go into executive session),” the Sun reported. Smither said he acted on the advice of lawyers, one of whom said a closed session is “universal in that type of meeting.”
Whoa! It may have become universal in the minds of some lawyers and government officials, but it isn’t universal, and it shouldn’t be. The exception the committee used is narrower than they seem to think; it applies “only when publicity would be likely to affect the value of a specific piece of property to be acquired for public use or sold by a public agency,” the law says. And if Versailles is considering a public-private partnership, that indicates that the city isn’t even going to sell the building.
Another oft-abused exception to the law is “discussions of proposed or pending litigation.” Our 47 years’ experience with this law teaches us that too many public boards go behind closed doors to discuss things that might lead to a lawsuit; that’s not good enough. They also abuse what many call “the personnel exception,” even though it’s clearly stated: “Discussions or hearings which might lead to the appointment, discipline, or dismissal of an individual employee, member, or student without restricting that employee’s, member’s, or student’s right to a public hearing if requested. This exception shall not be interpreted to permit discussion of general personnel matters in secret.”
The Kentucky Open Meetings Act has 14 exceptions, but it says they “shall be strictly construed” because the 1974 General Assembly declared “that the formation of public policy is public business and shall not be conducted in secret.” The 1976 legislature put a similar policy statement in the Open Records Act: “The General Assembly finds and declares that the basic policy of KRS 61.870 to 61.884 is that free and open examination of public records is in the public interest, and the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others.”
Inconvenience and embarrassment seemed to be two of the driving forces behind a rewrite of the records law in the current legislative session.
House Bill 312 would have limited requests under the law to residents of the state, addressing cities’ complaints that they get too many burdensome requests from out-of-state companies. The ban would have applied to news organizations, prompting many complaints — and a deletion of that provision in a Senate committee.
Left unchanged was the most important part of the bill for legislative leaders: one giving them, not the courts, the final say in appeals about requests for legislative records. That didn’t sit well with legislators whose constituents include many legislative staffers, including Democratic Rep. Derrick Graham of Frankfort and new Republican Sen. Adrienne Southworth of Lawrenceburg, whose district is Anderson, Woodford, Franklin, Owen and Gallatin counties.
Southworth told the Senate State and Local Government Committee that if the legislature is going to handle its own appeals, it needs a set of guidelines like those the court system adopted in 2017 for its administrative arm. (The state Supreme Court ruled long ago that the legislature couldn’t apply the records law to the court system, a move that has stuck in the legislative craw for decades.) Current law can be read to greatly limit the sort of legislative records that are open, and Southworth noted that the overall law presumes “Everything should be open unless it meets this criteria. The way this is, is upside down.”
When she tried to press her case, the committee chair, Sen. Robby Mills, R-Henderson, said the committee was pressed for time and called a vote. Southworth said, “That’s really upsetting that we’re the legislature and we can’t talk about legislative records.” But the 20 minutes that the committee gave the bill was longer than the whole House spent on it, quickly rewriting an unrelated bill in committee and passing it on the floor the next day, thumbing its nose at the principle of open government. Some who voted for the bill said they were doing it to keep private their correspondence with constituents, but the very first exception to the law is “Public records containing information of a personal nature, where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.”
In my fortnightly political column, I called the House’s maneuvering “one of the more ironic but emblematic moves I’ve seen in more than 40 years of watching our legislature closely.” There were other objections, so the bill was slowed down and improved in the Senate, and it still drew more than the usual party-line opposition. That suggested that if the legislative-records issue hadn’t been driving the bill, the Open Records Act wouldn’t be changing at all. But by their very nature, governments like secrecy, so it’s up to the public to be vigilant for open government. One way to observe Sunshine Week would be to check the roll-call votes on House Bill 312 and other anti-open-government bills and tell legislators what you think of their work.