A bill introduced in the California legislature last week would require public agencies to make written materials distributed to the members of the agencies’ governing boards “available for public inspection at a public office or location that the agency designates or post the writings on the local agency’s internet website in a position and manner that makes it clear that the writing relates to an agenda item for an upcoming meeting.”

https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=2…

It’s a simple solution to a longstanding problem: public officials’ discussion of written documents, as part of their public meeting agenda, that the public has not had the opportunity to review. The public is clearly disadvantaged by the unavailability of the document associated with the agenda item in advance of the meeting.

Kentucky law appears to differ from California law in a few significant respects.

We have no agenda requirement for regular meetings (though Kentucky’s agencies typical conduct their regular meetings using a written agenda). Special meetings must have a written agenda posted as part of all special meeting notices at least 24 hours before the meeting.

Additionally, some documents that must be discussed in open session because no open meetings exception authorizes closed session discussion, may actually qualify for exclusion from public inspection under an open records exception. 

A quirky example would be the open records exception for “test questions and scoring keys” found at KRS 61.878(1)(g). Public licensure boards must review proposed licensure examinations in open session because there is no corresponding open meetings exception for “discussions of test questions and scoring keys.” 

This disconnect is becoming increasingly rare as new exceptions are introduced. See, for example, records shielded from disclosure by the homeland security exception found at KRS 61.878(1)(m) and public agency discussions of those records found at KRS 61.810(1)(m). See also, KRS 61.878(1)(o) (exempting “Records of a procurement process under KRS Chapter 45A or 56” until after a contract is awarded) and KRS 61.810(1)(n) (exempting “Meetings of any selection committee, evaluation committee, or other similar group established under KRS Chapter 45A or 56 to select a successful bidder for award of a state contract”).

Recently enacted exceptions often plug the hole past exceptions occasionally created.

apps.legislature.ky.gov/law/statutes/statute.aspx?id=51393

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=48229

That problem could be easily corrected by including language in an amendment to the Open Meetings Act requiring publication of meeting materials to agency members •and the public• simultaneously, with the exception of materials excluded from public inspection by one or more of the exceptions to the Open Records Act found at KRS 61.878(1)(a) through (r). 

Posting of the written materials accompanying the public meeting on the agency’s website or at a designated link — if the agency maintains a website — should ensure no additional cost to the agency.

It’s difficult to see any downside to the introduction of a new section to Kentucky’s open meetings law requiring the agency to make meeting materials available to the public at the same time that the materials are made available to the public agency members. If necessary, an exception could be made for public agencies that do not maintain a website.

In addition to members of the media and the public, there are some candidates for public office that we know who would welcome such a new legal requirement.

We’re keeping our fingers crossed that the California bill introduced last week will be enacted and that Kentucky lawmakers will be inspired to follow suit by doing something to enhance (rather than impede) the public’s right to know.