The Open Meetings and Open Records Laws: A Citizens’ Bill of Rights

Sunshine Week is an annual event established in 2005 by the American Society of News Editors and celebrated across the United States by the media, access advocates and citizen groups in recognition of the importance and impact of open, transparent government. It was inaugurated in March 2005 to coincide with the birthday of President James Madison, who famously declared: “Knowledge will forever govern ignorance; and a people who mean to be their own governors must arm themselves with the power which knowledge gives.” Participants aim to enhance understanding of, and appreciation for, laws guaranteeing the public’s right to know through editorial, articles, forums and special events. March 11-17 has been designated Sunshine Week 2018.In a 2016 interview commemorating the fortieth anniversary of the Kentucky Open Meetings and Open Records Laws, Jon Fleischaker – a leading First Amendment lawyer recognized as one of the architects of the laws – described them as “citizens’ rights bills.” Later in the interview, Lexington Herald-Leader Editor Peter Baniak observed that “The real power of both the open meetings and the open records law…is that it’s not just for journalists.” Rather, “it’s for all citizens to use… Everybody can use it because everybody owns their government.”

While Mr. Fleischaker is justly credited as “the lead lawyer on all the important cases that made those statutes as meaningful as they are in everyday application,” the role of citizen open government advocates is equally important.

Citizens from all walks of life have left an indelible mark on the Open Meetings and Open Records Laws, often in unheralded legal disputes that never reached the courts.

In 1992, for example, a Shepherdsville resident, Judy Newsome, was unable to attend the Shepherdsville City Council’s public meetings. She requested, and obtained, a copy of the minutes of the meetings, but the city denied her request for the recordings of the meetings. The city relied on past open records opinions in which the Attorney General characterized the recordings as preliminary drafts and notes and preliminary memoranda.

The Attorney General reexamined this issue in OAG 92-111. He concluded that the exceptions were not “intended to cover verbatim recordings of open, public meetings,” affirming her right -- and the rights of all subsequent open records applicants -- to agency created recordings of public meetings.

In 1996, a local critic of the North Marshall Water District, Bessie Elliott, succeeded in convincing the Attorney General that he should reconsider his narrow interpretation of the statute requiring agencies to permit news media coverage of public meetings. The Attorney General had refused to recognize a citizen’s right to create his or her own recording of public meetings.

In 96-OMD-143, the Attorney General departed from past opinions and declared that “a regulation, rule, or policy of a public body which uniformly prohibits the tape recording of a public meeting is arbitrary, capricious, restrictive, and unreasonable and a person should be permitted to tape record a public meeting so long as that person and his or her taping equipment do not interfere with the orderly conduct of the public meeting,” Ms. Elliott’s efforts substantially enlarged citizens’ rights under the Open Meetings Act.

Meanwhile, a persistent group of University of Kentucky professors that included a toxicologist, Dr. Davy Jones, focused the Attorney General’s attention on the University’s lax records management practices and the fact that these practices frequently impeded access to University records.

In 1994 and 1995, these professors submitted multiple appeals to the Attorney General relating to the University’s denials of their requests for public records that were prematurely destroyed or lost. Dr. Jones's efforts – and those of his colleagues -- directly or indirectly led to the 1994 amendment to the Open Records Law recognizing an “essential relationship” between the intent of open records and records management laws.

A successful collaboration between the Office of the Attorney General and the Kentucky Department for Libraries and Archives was born of this statutory recognition.  Open records appeals that raise records management issues have since been referred to KDLA for corrective action.

Eight years later, an open records applicant serving a prison sentence, Bobby Chestnut, submitted a simple request to the Department of Corrections for the open portions of his inmate file and set into motion a series of events that would yield one of the most significant cases in recent decades. Corrections denied Mr. Chestnut’s request as insufficiently specific and overly burdensome. The Attorney General rejected Correction’s position, and the courts at every level affirmed his right of access to his file.

In Commonwealth v. Chestnut, the Kentucky Supreme Court addressed – for the first time -- the degree of specificity required of an open records applicant in describing the records he or she wishes to access.  Also for the first time, the Court analyzed the question of what constitutes an unreasonable burden in producing public records. Thanks to Mr. Chestnut, we now have a frequently cited precedent providing legal guidance on these questions.

But it was, perhaps, Spencer County School Board member Sandy Clevenger’s challenge to a closed session discussion of the superintendent’s evaluation that required the greatest courage and personal sacrifice.

Ms. Clevenger prevailed in an appeal to the Attorney General -- based on a strict construction of the “personnel” exception to the Open Meetings Act -- and was sued by the school board with the backing of the state superintendents association. She prevailed in the courts at her own expense. In so doing, she advanced the public’s right to know how well or how poorly the superintendent was discharging his duties.

Her victory was short lived, owing to subsequent changes in the law, but once again demonstrates the importance of citizen advocacy.

These examples prove that the Open Meetings and Open Records Laws are “not just for journalists.” While the laws provide an indispensable investigative tool for reporters, they are equally indispensable to citizens who wish to hold their government accountable.

In recognition of Sunshine Week, the Bluegrass Institute will -- in a series of articles -- describe how you, as a citizen advocate for open government, can effectively use the laws to advance the public’s right to know.