Bluegrass Institute statement regarding House Bill 216

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Bluegrass Institute president and CEO Jim Waters made the following comments at a recent meeting of the Kentucky House of Representatives’ State Government Committee opposing a proposed amendment in House Bill 216 which would exempt certain aspects of built-to-suit selection committees from requirements of Kentucky’s open meetings and records laws, including the identity of committee members and selection process for built-to-suit contracts. Thank you, Chairman Miller, and to the esteemed State Government Committee members for the opportunity to speak regarding proposed changes that would result in exempting built-to-suit selection committees from certain requirements of the state’s Open Meetings and Open Records laws.

I’m Jim Waters, president and CEO of the Bluegrass Institute. Also, at the table today is Amye Bensenhaver, director of the Bluegrass Institute Center for Open Government, which we created to give citizens a voice and presence regarding Kentucky’s nationally recognized Open Meetings and Open Records policies.

First, we wish to clarify an earlier comment regarding the Attorney General’s decision that the Finance and Administration Cabinet violated the Open Meetings Act by failing to hold meetings of the built-to-suit selection committee in public, set a regular meeting schedule and keep minutes of its meetings.

Contrary to what was stated earlier here, the decision is not an “advisory opinion” that the Finance Cabinet may or may not implement, depending on what it chooses to do. The Attorney General’s decision properly interpreted the Open Meetings law and, if not reversed by the courts, represents a governing precedent. We would remind the committee that in Kentucky, Attorneys General Open Meetings and Open Records decisions carry the force of law, and, of course, remain so unless reversed by the courts.

We come today to oppose the proposed amendment of House Bill 216 (HB 216), which would exempt certain aspects of built-to-suit selection committees from requirements contained in Kentucky’s very fine Open Meetings and Open Records laws, including the identity of committee members and selection process for built-to-suit contracts.

We offer the following reasons for our opposition:

• The Open Meetings and Open Records laws secure not only the public’s right to eventually know decisions made and actions taken by Kentucky’s public agencies but to monitor those activities throughout the process.

In Zink v. Commonwealth of Kentucky (1994), the Kentucky Court of Appeals ruled that "[t]he public's `right to know' under the Open Records Act is premised upon the public's right to expect its agencies properly to execute their statutory functions. In general, inspection of records may reveal whether the public servants are indeed serving the public, and the policy of disclosure provides the impetus for an agency steadfastly to pursue the public good. … At its most basic level, the purpose of disclosure focuses on the citizens' right to be informed as to what their government is doing."

• Built-to-suit selection committees are created by statute and thus also presumptively are public agencies for Open Records and Open Meetings purposes.

KRS Chapter 56, specifically KRS 56.8169, affords the public an opportunity, albeit a limited one, to ensure that the Finance Cabinet is properly executing its statutory functions by attending those portions of the built-to-suit selection committee meetings which confirm that the Cabinet has discharged its duties, including the duty to appoint individuals to the committees who meet the legal requirements found at KRS 56.8163(3); to verify that the members have requisite qualifications per KRS 56.8163(5); and to fill vacancies and appoint replacements under the guidelines established  by KRS 56.8163(6)(b).The public's right to attend those portions of the meetings which the law currently allows to be open strikes a reasonable balance between the public's right to know that the Cabinet is properly discharging these duties and the Cabinet's need to ensure the integrity of the procurement process by shielding proposals, and discussions of proposals, from public access.

• The Bluegrass Institute Center for Open Government does not dispute the need for confidentiality within the parameters that exist in current law. However, this bill entirely excludes the public and permits the Finance Cabinet to operate in complete secrecy and avoid accountability in discharging its statutorily assigned duties.

The Cabinet's argument is tantamount to the position that “darkness is the best disinfectant," which, of course, runs contrary to the principled view informing all government transparency laws, namely, that “sunlight is the best disinfectant.

"Neither Cabinet representatives nor HB 216 sponsors offer evidence supporting the view that committee members are more apt to be corrupted if their identities are disclosed. Nor can they. Such a risk, in fact, exists in every function performed by public agencies and public servants. The Bluegrass Institute Center for Open Government strongly asserts that the more sunlight cast on those functions, the less likelihood exists for corrupting influences.

We don't hide the identities of the members of the judiciary, the Supreme Court, Court of Appeals, etc., to avoid the risk that they might be approached by stakeholders or citizens trying to influence their decisions. No other public body is permitted to erect an absolute barrier to the public's right to know.

• The Cabinet maintains that the matters which Chapter 56 currently make public during the procurement process will be available at its conclusion. This policy runs contrary to the adage in open government law that "The value of information is partly a function of time."

The value of ensuring compliance with the requirements imposed by Chapter 56 exists at every stage of the process -- not just at its conclusion -- and is entirely consistent with the statement of legislative policy enshrined in Kentucky’s Open Meetings and Open Records laws, namely that: "The formation of public policy is public business."

• Courts have recognized that "the right of the public to be informed transcends any loss of efficiency."

Compliance with the existing requirements of the Open Meetings Law imposes no greater burden on the Cabinet than on any other public agency, including admitting the public to the nonexcepted portions of committee meetings, adopting a regular meeting schedule, giving notice of special meetings, observing requirements for going into closed session and keeping minutes.

We urge the committee to:

• Reject this amendment and maintain the public's right of access to the limited portions of built-to-suit selection committees and the other committees addressed in HB 216.

• Continue to secure the rights guaranteed to the public under the Open Meetings Law so that the public can ensure the Cabinet properly executes its statutory functions and indeed serves the public.

For more information or comment, please contact Amye Bensenhaver, director of the Bluegrass Institute Center for Open Government, at (502) 330-1816 or abensenhaver@freedomkentucky.com.