An August 6 Twitter thread from Courier Journal reporter Mandy McLaren concerning access to the meetings of the Jefferson County Public Schools' alternative school task force, as well as a study on alternative school redesign — prepared by Big Picture Learning at a cost of $125k — raises significant open meetings and open records issues.

In a *Transparency Note,* McClaren explains that she attended the committee's first meeting in May 2018 as an education reporter for the CJ. She was added to the committee's email notification list for future meetings.

She was, however, discouraged from attending the committee's second meeting, conducted in September 2018, by a JCPS spokesperson. In advance of the meeting, the spokesperson contacted McClaren to ask if she was attending the meeting as a "private person."

In response to McClaren's question

about why this mattered, the spokesperson replied that "the task force members were going to share their thoughts" at the meeting, and "having a reporter there might make them feel uncomfortable."

Superintendent Polio acknowledged the error when McClaren later questioned him about it and indicated that she "should have been allowed in."

She has not received an updated schedule of committee meetings and has been advised "that they hadn't been scheduled yet."

Let's dissect this.

The fundamental mandate of the open meetings law is that "all meetings of a quorum of the members of any public agency at which any public business is discussed or at which any action is taken by the public agency *shall be public meetings, open to the public at all times*."

McClaren knew, as we know, that her purpose in attending the meeting was completely irrelevant. Apparently, the JCPS spokesperson did not know this.

McClaren knew, as we know, that a committee created by a public agency is itself a public agency, even though its membership typically consists of less than a quorum of the members of the public agency that created it. Apparently, the JCPS spokesperson did not know this.

Absent any evidence to the contrary, the alternative school task force is a public agency as defined in the open meetings law. It is subject to all requirements of the open meetings law.

"The formation of public policy is public business" even if discussions conducted in forming policy make the agency members "uncomfortable."

Public agencies cannot exclude attendees based on their purpose in attending a public meeting. Attendees are not "allowed in." They exercise a statutorily recognized and protected right to attend public meetings.

Because it is a public agency, the alternative school task force is required by the open meetings law to "provide for a schedule of regular meetings by ordinance, order, bylaws, or by whatever other means may be required for the conduct of public business." Further, the schedule "shall be made available to the public."

Although the open meetings law does not expressly require it, JCPS could and should post the alternative school task force committee regular meeting schedule on the district website.

If McClaren wants to receive notice of special task force meetings, she is entitled to written or email notice as a representative of a media organization, but must submit a written request to be notified of special meetings to the task force itself or to JCPS (with explicit instructions that the request encompasses the task force).

Although members of the public cannot sign up for notice of special meetings, it is understood that "notice to the media is notice to the public," and that the media will publish notice of the agency's special meetings.

Since the open meetings law mandates public meetings, open to the public at all time," and since the law's "express purpose is to maximize notice of public meetings and actions," JCPS "violated the public good" in not one but two major respects. First, it engaged in a practice, albeit limited, of selective admission to a public meeting by discouraging McClaren's attendance at the task force's second meeting. Second, it failed to maximize notice of public meetings by acknowledging the task force's statutory duty to adopt and make available to the public a regular meeting schedule.

McClaren's *Transparency Note* then turns to the bane of every open records requester's existence: denial of access to a report/study — prepared at public expense and delivered to a public agency for discussion and action — because it is a "preliminary recommendation."

Here, it is Big Picture Learning's $125k "School Success Studies" for particular alternative schools.

"As part of the ongoing review of these programs," JCPS advised McClaren, the completed studies are "not subject to release at this time."

Is JCPS's position legally supportable based on existing authority? Although reasonable minds may differ, the answer — in my experience — is "yes." Until final action is taken on Big Picture Learning's preliminary recommendations, or a decision is made to take no action on the recommendations, the records are, indeed, protected by KRS 61.878(1)(j), authorizing nondisclosure of "preliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated or recommended."

But how can the board or the task force members conduct a meaningful public discussion of the records when they are arguably constrained by its preliminary character, and how can the public fully understand that discussion if they have no access to the records.

Bear in mind, there is no known exception that permits closed session discussions of the records, and that the individual members are forbidden from discussing the records among themselves at the risk of violating the "rolling quorum" prohibition in the law.

So they must tap dance around the contents, or candidly discuss the contents, in a public meeting without giving the public a written frame of reference for the discussion.

In such cases, public agencies like JCPS would do well to remember that the exceptions to the open records law are "a shield and not a shackle."

The exceptions, particularly KRS 61.878(1)(j) and it's companion KRS 61.878(1)(i), can be waived if waiver will not compromise a significant governmental interest. The attorney general recognized this fact in the 1970s and the Kentucky Supreme Court recognized it in 2013.

$125k later, there seems to be no plausible explanation for withholding the records in this case other than "we can."