Let's give credit where credit is due.
Kentucky is due more credit than it is being given.
The open government community has been actively discussing the challenges to transparency posed by the current crisis since mid-March.
The Kentucky Open Government Coalition has regularly participated in the discussion, sharing information about each step our officials have taken to preserve the public's rights under our open records and meetings laws.
It's a bit frustrating, therefore, that experts, such as those who contributed to this April 14 article in Law360, entitled "Public Meetings Requirements in the Age of Covid-19," continue to limit analysis of Kentucky's response to open government challenges to an advisory opinion issued by Attorney General on March 18.
As early as March 12, the Finance Cabinet took purposeful action to ensure the uninterrupted services provided by state boards and commissions under its administrative umbrella.
https://www.facebook.com/419650175248377/posts/641066983106694/?d=n
https://governor.ky.gov/attachments/20200312_Memo_Board-Teleconferencin…
The full extent of the threat was still unknown at that point. Nevertheless, the Cabinet issued directives aimed at discontinuing in-person meetings.
Although it was addressed to state boards and commission only, and made provision for very limited in-person gatherings, it remains, in some respects, the most comprehensive, albeit now superseded, guidance.
For example, it included specific procedures for cancellation of regular meetings and notification of rescheduled "virtual" special meetings.
On March 18, both the Attorney General *and* the Governor took action.
In response to a request for an advisory opinion from the Kentucky Association of Counties and the League of Cities, the Attorney General issued OAG 20-05. In it, he opined that because it was no longer "feasible" to identify a physical location for "in-person" meetings, agencies discharged their open meetings duties by identifying "a website, television station, or other technological means by which the public may view a meeting conducted under the Act" until the state of emergency ends.
https://www.facebook.com/419650175248377/posts/644123412801051/?d=n
It is a well-reasoned opinion, as far as it goes, and useful but not legally binding.
Also on March 18, Governor Beshear issued Executive Order 2020-243 relating to social distancing.
https://www.facebook.com/419650175248377/posts/644438352769557/?d=n
The Governor suspended state statutes and regulations that conflict with social distancing practices, including provisions of the open meetings law mandating in-person meetings, requiring the physical presence of participants in meetings," or "requiring a primary physical location" for video teleconferenced meetings.
Like the Attorney General, the Governor directed agencies to make their meetings available "through the internet or on television."
Both provided legal cover for open meetings challenges based on the pre-pandemic law.
On March 26, lawmakers passed SB 150, the Coronavirus Relief Bill, that was signed into law by Governor Beshear on March 30.
https://apps.legislature.ky.gov/record/20RS/sb150.html
It statutorily modifies existing open records *and* meetings requirements during the state of emergency.
The bill extends the deadline for public agency response to an open records request from three business days to ten days. It also permits public agencies to delay personal inspection of public records in the agencies' offices.
The most significant change the bill makes to the open meetings law is in formally authorizing "live *audio* teleconferences" in lieu of "live video teleconference during the period of the state of emergency . . . if the public agency does not have the technological capacity or availability to provide for a live video teleconference[.]"
It gives explicit direction on what the special meeting notice for all audio or video teleconferences must contain.
https://www.facebook.com/419650175248377/posts/649587875587938/?d=n
Some agencies across the state have encountered problems in implementing even these relaxed requirements.
https://www.facebook.com/419650175248377/posts/648450612368331/?d=n
https://www.kentucky.com/news/local/education/article241809326.html
But Kentucky should be credited for proactively addressing the anticipated challenges in advance of many states and in a far less heavy handed way than many other states.
https://www.facebook.com/419650175248377/posts/646208009259258/?d=n
Our agencies continue to struggle, and some may be exploiting the crisis to abandon open records and meetings requirements altogether, but lawmakers as well as the Governor and the Attorney General, deserve *full* credit for preserving, to the extent possible, the public's legally recognized right to know.
