Kentucky House of Representatives v. Bluegrass Institute

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Few things are more familiar to regular television viewers than the one hour courtroom drama.

The program begins with the commission of a crime, continues with the investigation—often accompanied by strategic legal maneuvering—and reaches its climax in a dramatic courtroom scene where justice prevails in the conviction of the guilty and the exoneration of the innocent.

Since the early days of television, the plots have become more complex, exposing weaknesses in our judicial system as well as the legal and moral ambiguities that lawyers and their clients confront.

No courtroom drama can, however, capture the glacial pace with which most legal actions proceed. In general, such actions linger in the courts for years.

It is, perhaps, for this reason that the architects of Kentucky’s Open Meetings and Open Records Acts established a statutory mechanism for speedy resolution of disputes concerning the public’s right of access to meetings and records of the agencies which serve the public.

As we have noted in the past, sunshine laws like our own are premised on the recognition that “the value of information is partly a function of time.”  When the Kentucky attorney general commits to compliance with the statutory deadlines for issuing open meetings and open records decisions, as has the current office holder since September 2016, an open meetings appeal to his office must be resolved within 10 business days and an open records appeal to his office must be resolved within 20 to 50 business days.

This discrepancy exists because the Open Meetings Act establishes a fixed 10 day deadline with no statutory mechanism for extending that deadline. The Open Records Act, on the other hand, authorizes the attorney general to extend his 20 day deadline under statutorily defined “unusual circumstances”—for example, “the need to obtain additional documentation from the agency or a copy of the records involved.”

It is, by the way, the latter clearly established right that has given rise to litigation between the state’s universities and their own student newspapers that is slowly making its way through the courts. To his credit, the attorney general has intervened in those cases to defend this absolutely essential tool for resolving open records disputes presented to his office that he is guaranteed in  statute, in regulation, and in caselaw.

Whether 10 days or 50 days, Kentucky’s laws guarantee resolution of most open meetings and open records disputes in a matter of days, rather than months or years, by means of an appeal to the attorney general—a simple and user friendly process--that is unparalleled in other states and unheard of at the federal level.

Importantly, the decisions his office issues—if not appealed to circuit court within 30 days of issuance—have “the force and effect of law,” and therefore bind the parties, in both open meetings and open records disputes. This generally permits the public to pursue a legal challenge without incurring court costs and attorneys’ fees, preserves judicial resources, and promotes agency compliance with the laws.

Moreover, the attorney general’s analysis in open meetings or records appeals is—more often than not—well reasoned, well written and supported by legal authority. On past occasions when the attorney general refused to listen to the career open meetings and open records specialists on his staff, his open meetings and open records decisions have been spectacularly wrong. But these decisions are the exception rather than the rule—especially since the current attorney general awoke to the importance of his role in September 2016. He is usually right and caselaw construing the Open Meetings and Open Records Acts confirms this.

If either of the parties to an open meetings or open records appeal is dissatisfied with the attorney general’s decision, that party can challenge the decision in circuit court. Given their limited financial resources, media representatives and members of the public initiate these judicial challenges selectively and with an eye to meaningfully advancing the public’s right to know.

Public agencies, on the other hand, have deeper pockets and are therefore inclined to challenge an attorney general’s open meetings or open records decision for any number of reasons: embarrassment based on a finding that their actions violated the laws; arrogance based on a belief that their legal advisors cannot be wrong; obstructionism aimed at prolonging the legal proceedings until the issues presented are no longer relevant; and—most ominously—a desire to bully and intimidate the media or public and thereby discourage future legal challenges.

The only legitimate rationale supporting a judicial appeal of an attorney general’s open meetings or open records appeal is a good faith belief that the attorney general erred in his interpretation of the law and that a genuine issue of law exists that is appropriate for review by the courts.

On November 30, 2017, the Kentucky House of Representatives filed an appeal in the Franklin Circuit Court from an open meetings decision issued by the attorney general on November 1 determining that the House violated the Open Meetings Act when it conducted a closed meeting of a quorum of its members--without legal justification--to discuss pension reform. The Bluegrass Institute Center for Open Government challenged the House’s illegal closed session in a complaint to the Speaker of the House and an appeal to the attorney general. The Bluegrass Institute is therefore named as defendant in the appeal to the Franklin Circuit Court.

The issue presented in the appeal is an important one: whether a quorum of the members of the House of Representatives can conduct secret discussions of issues of great public importance—in this case pension reform—through the simple expedient of declaring the meetings Majority Caucus meetings which the Minority Caucus is permitted to attend. Unless the attorney general’s open meetings decision is affirmed by the courts, future legislative abuses of the Open Meetings Act may well occur.

The Bluegrass Institute Center for Open Government will vigorously defend the attorney general’s decision to ensure that the public’s right of access to legislative discussion and debate is not abridged through what is likely to be a protracted legal process. The dispute will not be resolved in a one hour courtroom drama or in 10 business days--as contemplated by the statute and as we had hoped--but we will fight this legal battle to its conclusion however long it may take.