A disturbing Supreme Court opinion from Arkansas determining that email discussion of public business did not constitute a violation of that state's open government laws.

The Arkansas law is referred to as the Freedom of Information Act and combines both records and meetings access in a single body of law. It is substantially different from Kentucky's open meetings law, and, in that, we can take comfort.

The Southwest Times Record reports that the divided opinion, issued on June 20, overruled a 2018 Arkansas circuit court opinion holding that Ft. Smith city officials violated open meetings requirements by conducting an email discussion of the city's civil service commission.

Quoting from the article, linked below, "while the Court disagreed with the City of Ft. Smith's argument that emails should not extend to the state's Freedom of Information Act, it ultimately sent the case back to the circuit court because there was no decision made in the email exchange."

Apparently, there was also concern that the "definition of 'public meetings' In FOIA does not supply the same affirmative textual clarity to support a definitive conclusion that emails can constitute a public meeting. . . . "

For one dissenting justice there was no lack of "textual clarity." Justice Josephine Linker Hart wrote that, "Secrecy is poison to democracy."

Kentucky's open meetings law is textually unambiguous.

"Public meeting" is defined as "all gatherings, of every kind, regardless of where the meeting is held, and whether regular or special and informational or casual gatherings held in anticipation of or in conjunction with a regular or special meeting."

The law mandates that "all meetings of a quorum of the members of a public agency [or series of less than quorum meetings attended by members collectively constituting a quorum] at which any public business is discussed or at which any action is taken, shall be public meetings, open to the public at all times."

The fact that "no decision was made in the email exchange" in the Arkansas case would be wholly irrelevant to a Kentucky court's analysis of this legal issue. Secret discussion of public business by a quorum at a single meeting, or a series of less than quorum meetings, — with or without a decision, a vote, or final action — constitutes a violation of the open meetings law.

And the Kentucky Supreme Court has made it an even surer bet that the outcome of the Arkansas case would have been different in Kentucky.

In 1977, the Court determined that the Jefferson County Fiscal Court violated the open meetings law by conducting telephonic meetings to discuss public business, in that case public employee salaries and a real estate lease.

https://law.justia.com/cases/kentucky/supreme-court/1977/554-s-w-2d-72-…

I remain convinced that email discussion of public business — just another all too common form of "electronic communication" that excludes the public — violates the Kentucky open meetings law, and that Kentucky's courts will one day reach this "definitive conclusion."

Kentucky's courts recognize that "Secrecy is poison to democracy."