Judge Audra Eckerle's September 8 ruling in the lawsuit filed last month by Metro Government against the 26 members of the Metro Council rightly resolves the issue that prompted the suit in favor of open government.
That issue emerged when city officials who were scheduled to testify on law enforcement's response to civil unrest to the Council's Goverment Oversight and Audit Committee on August 3 refused to do so in open session.
In support of their position, interim police chief, Robert Schroeder, and chief of public safety, Amy Hess, cited a pending federal lawsuit against the city. They relied on a broad reading of the exception to the open meetings law that permits a public agency to conduct a closed session to discuss proposed or pending litigation against or on behalf of that agency.
https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=48229 (See KRS 61.810(1)(c)).
The exception to the open meetings they cited has been construed on multiple occasions to authorize closed session discussion of "matters commonly inherent to litigation, such as preparation, strategy or tactics" as well as "anything that would include the attorney-client relationships" pertaining to that proposed or pending litigation.
https://caselaw.findlaw.com/ky-supreme-court/1012466.html
But, the Kentucky Supreme Court admonished, the exception "must not be expanded to include general discussions of 'everything tangential to the topic.'"
Metro Government stretched the exception beyond recognition in arguing that it required closed session testimony relating to:
•vandalism and the response to it;
•use of tear gas and/or pepper balls;
•how the media became a "target;"
•directives given by leadership;
•"stand down" orders; and
•law enforcement presence at 26th and Broadway the night David McAtee was killed.
Judge Eckerle rejected Metro Government's position, reaffirming the statutorily mandated strict construction of the exception and ruling that the federal lawsuit did not "trump elected government oversight of key, senior public officials."
"In reality," she wrote, "every activity carries with it the potential of litigation. Were that risk alone sufficient reason to act clandestinely, no government operation would be open or subject to review, and the Open Meetings Act would be pointless."
We have not had an opportunity to review the full text of Judge Eckerle's ruling, but this statement alone should be enshrined in the open government hall of fame.
As we wrote on August 3, closed session testimony "would have 'expanded the intended scope of the litigation exception and improperly concealed matters otherwise appropriate to the view of the public.'"
https://www.facebook.com/419650175248377/posts/731816777365047/?extid=8…
Judge Eckerle also addressed the city's attempt to compel the Government Oversight and Audit Committee to invoke an exception permitting closed session that it did not believe it could — and was not inclined to — defend, if challenged.
WFPL reports that Judge Eckerle determined that the narrowly-defined exception "does not apply in this case, particularly because council is not party to the federal case."
https://wfpl.org/?p=146109&preview=true&preview_id=146109
This analysis should also be enshrined in the open government hall of fame insofar as it limits the availability of the open meetings exception to agencies that intend to sue or have sued or are threatened with suit or have been sued.
The Metro Council falls into none of these categories. It therefore cannot properly invoke the exception.
Perhaps the most troubling aspect of this case is the city's view that the open meetings law compels a closed session "if meeting topics are expected to touch on 'pending litigation.'"
"The basic policy of the open meetings law is that the formation of public policy is public business and shall not be conducted in secret."
https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=23042
The city's position shifts the presumption favoring openness to one favoring secrecy.
This is particularly disturbing in light of other recent attempts to shift the presumption favoring openness by obstructing public access through anti-open government "protective orders" and "cease and desist" demands.
https://www.facebook.com/419650175248377/posts/748064642406927/?extid=K…
https://www.facebook.com/419650175248377/posts/754897588390299/?extid=d…
For now, however, the Jefferson Circuit Court, and Judge Audra Eckerle, has rejected such efforts and strongly endorsed the public's right to know.
