When transparency becomes an inconvenience, legislate!

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In October 2017, we reported on a decision issued by the Kentucky attorney general in an open meetings dispute between The State Journal and the Finance and Administration Cabinet. The dispute centered on a State Journal reporter’s unsuccessful attempts to learn the identities of the members of the Capital Plaza Redevelopment Project Built-to-Suit Selection Committee and to attend the open portions of the committee’s meetings.

Fundamental to The State Journal’s position was the uncontested fact that the committee was created under authority of KRS 56.8163(1), a state statute, that the Open Meetings Act defines the term “public agency” as “any body created by or pursuant to state or local statute," and that the committee is therefore a public agency.

“The cabinet,” we noted in our discussion of the attorney general’s open meetings decision, “did not address either statute, or the statute authorizing the committee to conduct closed session discussion of specifically enumerated topics, in defending its longstanding practice of conducting committee meetings without notice to the public or complying with any of the other requirements imposed on all public agencies by law.”

Instead, we noted, the cabinet relied on an obscure advisory opinion issued by the attorney general in  1994 — relating to sub-delegation of administrative responsibilities in a university setting — and the argument that disclosure of the identities of selection committee members would expose the members to potential improper contacts and influence. This amounted to the unprecedented and legally unsupportable argument that “darkness is the best disinfectant.”

Happily, that position was soundly rejected  in 17-OMD-207. The attorney general’s staff determined that the Finance and Administration Cabinet’s refusal to publicize — and admit the public to —  the open portions of the meetings of the Capital Plaza Redevelopment Project Built-to-Suit Selection Committee violated the Open Meetings Act.

In so holding, the staff concluded that “there is always a risk of improper contact in any issue of public importance,” and that “the Open Meetings Act makes no exemptions based on the mere possibility of improper contact.”

Unfortunately, the cabinet was not gracious in defeat. Although it grudgingly admitted The State Journal and the public to a scant few minutes at the beginning and end of a meeting conducted on October 26, it initiated an appeal of 17-OMD-207 to the Franklin Circuit Court  on November 3.On appeal, as before, the cabinet cited no legal authority supporting its position other than the 1994 advisory opinion – an opinion that instead supported a finding that the selection committee is a public agency, the attorney general’s staff concluded –  and confidentiality statutes embedded in Chapter 56 of the Kentucky Revised Statutes – which The State Journal has never contested but which apply to the contents of bids before a contract is awarded and not to the open portions of the selection committee’s meetings.

The cabinet also resurrected the implausible argument that compliance with the Open Meetings Act could “undermine the confidentiality of the procurement process by exposing evaluation team members to great risk of improper contact, lobbying, and public opinion pressure, especially when a procurement is the subject of strong community opinions.”

That action is pending in the Franklin Circuit Court.

Now comes news of the introduction on January 18 of House Bill 216, sponsored by state Rep. Jason Petrie, R-Elkton. That bill is aimed at amending  the Open Meetings Act to exempt committees -- like the Capital Plaza Redevelopment Project Built-to-Suit Selection Committee -- from the requirements of the Open Meetings Act to the limited extent currently mandated by statute . The bill is also aimed at amending the Open Records Act to exempt from public inspection “[i]nformation identifying the members of a procurement or selection committee” and “[r]ecords of the procurement process.”

As we observed in October, “KRS 56.8169 authorizes [such] committees to discuss specific proposals in closed session. [No one] disputes this clearly established law. The General Assembly has statutorily fixed the limits of the committees’ permissible closed session discussion. The Finance Cabinet and its committees are not at liberty to exceed these limits based on unsupported claims that statutorily assigned duties will be compromised by public scrutiny.”

Apparently, the cabinet is not confident in its interpretation of its own statutes when read in conjunction with open meetings statutes. And rightly so. There simply is no ambiguity in the statutes which specifically require portions of the selection committee meetings to be conducted publicly and generally require compliance with the Open Meetings Act.

In the absence of any proof beyond a bare claim supporting the cabinet’s argument that sunlight is likely to infect the procurement process -- and that darkness ensures integrity in that process – or any circumstance warranting a change in the existing law beyond the inconvenience of admitting the public to the open portions of selection committee meetings and otherwise complying with the Open Meetings Act, we are compelled to ask, “Why legislate?”