Can a public official go to jail or be fined for violating Kentucky's open records or open meetings laws?
Certainly, public agencies can be, and occasionally are, assessed penalties, attorneys' fees, and costs associated with litigation if they are found to have *willfully* violated the open records or meetings laws.
These attorneys' fees, costs, and penalties are paid by the agency responsible for the violation.
For open records violations, a court may award up to $25 for each day that the requester was willfully denied the right to inspect or copy public records. For open meetings violations, a court may award up to $100 for each instance in which the court finds a willful violation.
https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=23066
https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=23055
The court can also void an action taken at a meeting if it finds that the agency failed to substantially comply with certain open meetings requirements.
The Attorney General is not authorized to impose penalties, fees, and costs. Nor can he void actions taken at illegal public meetings.
In 2016, the Kentucky Supreme Court affirmed penalties assessed against the Cabinet for Health and Family Services in the amount of $756,000 — along with attorneys' fees and costs — for willfully withholding records relating to child fatalities and near fatalities. The court recognized that public agencies must comply with Kentucky's open government laws "as required or risk meaningful punishment for noncompliance."
https://caselaw.findlaw.com/ky-court-of-appeals/1726554.html
But a less well known statute, KRS 61.991, authorizes a court to punish "Any person who knowingly attends a meeting of any public agency covered by [the open meetings law] of which he is a member, not held in accordance with the [open meetings law] by a fine of not more than one hundred dollars ($100)" — payable by the member and not the agency. The statute does not authorize a court to impose jail time for an open meetings violation.
https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=23117
KRS 61.991 also provides that a public agency official "who willfully conceals or destroys any record with the intent to violate [the open records law] shall be guilty of a Class A misdemeanor for each separate violation."
Class A misdemeanors are punishable by up to 12 months in jail and up to $500 in fines.
The public agency official may also be guilty of contempt if the official "fails to produce any record after entry of final judgment directing that such records shall be produced."
Although penalties, attorney fees, and costs have been awarded — under KRS 61.848(6) and KRS 61.882(5) — on multiple occasions, we know of no cases in the forty-seven year history of our laws in which Kentucky officials have been personally fined, jailed, or held in contempt under KRS 61.991.
It is surprising, therefore, when we read that another state's court — in this case Florida's — this week sentenced two public officials to jail and ordered them to pay restitution for violations of the Sunshine State's Sunshine Laws.
WPTV-5 reports:
"Two former Sebastian City Council members, who were found guilty of violating Florida's Sunshine Law earlier this year, were sentenced Tuesday.
"Damien Gilliams and Pamela Parris were convicted in May by a six-member jury.
"Gilliams and Parris were removed from office after a special election last fall.
"Circuit Court Judge Michael Linn ruled Tuesday that Gilliams serve six months in jail and Parris serve 90 days.
"Both Gilliams and Parris were also ordered to pay more than $26,000 in restitution to the city of Sebastian and other court costs.
"The former City Council members were accused of holding an illegal meeting during which they voted to remove Mayor Ed Dodd and fire the city manager, city clerk and city attorney."
"Can a public official go to jail or be fined for violating Kentucky's open records or open meetings laws?
The quick answer is "yes," but to date Kentucky officials have dodged this bullet.
