New laws enacted by the General Assembly in the 2022 Regular Session took effect on July 14. We are happy to report that — following the destructive legislative session in 2021 — Kentucky’s open records and meetings laws suffered minimal damage in 2022.
This is not to say that the laws emerged unscathed.
Here’s what you need to know about new laws affecting open government in Kentucky.
TEMPORARY MODIFICATIONS ARE (MOSTLY) OUT
The temporary modifications to the laws — necessitated by the state of emergency declared in 2020 — came to an end on March 22, 2022, when the General Assembly adopted a resolution immediately ending the state of emergency.
• This means that public agencies must respond to open records requests within five business days. Authority for the temporary ten day deadline for public agency response ended on March 22.
• This also means that public agencies can no longer postpone public inspection of agency records in the agency’s office. An open records requester may choose to inspect the public record s/he requested on site — and obtain copies as s/he designates — as an alternative to receiving copies by mail.👋
ONE TEMPORARY MODIFICATION IS NOW PERMANENT: VIDEO-TELECONFERENCED MEETINGS
The General Assembly made permanent one of the 2020 temporary modification to the open meetings law necessitated by the state of emergency.
Video-teleconferenced meetings — more accurately known as “virtual” meetings — may now be conducted by public agencies instead of in person meetings. The General Assembly abandoned the decades’ old preference for in person meetings this year.
After July 14, public agencies have a choice. They may choose to conduct their public meetings in person, as
required before COVID (with few exceptions). Alternatively, they may choose to conduct their public meetings by “video-teleconference.”
A “hybrid” meeting — in which the public agency conducts an in person meeting that is also live-streamed to a remote audience — is an option but not required by law (as in some other states).
A missed opportunity if ever there was one.😭
Video-teleconferenced meetings, here, mean “virtual” meetings conducted on Zoom or a similar platform, the agency’s YouTube channel, the agency’s Facebook page, etc. Going forward:
• all members of the public agency may participate in a public meeting in person at a designated physical location (unofficially referred to as an “in person meeting”); or
• all members of a public agency may participate by video-teleconference rather than in person (officially referred to as a “video-teleconferenced meeting”). The media or public may access the meeting through a link which the agency must provide, but no designated physical location is required; or
• some members may participate in person while others participate by video-teleconference from a remote location. If two or more members participate from the same physical location, the agency must identify that physical location where the public can attend and all agency members (those participating in person and those participating remotely) can be seen and heard.
Although the term meant something very different when it was first introduced to the open meetings law in 1994, the definition of “video-teleconference” remains the same today: “One meeting, occurring in two or more locations, where individuals can see and hear each other by means of video and audio equipment.”
Nothing like affording public officials legal authority to hide from their constituents behind an electronic barrier!😏
If a public agency chooses to conduct a video-teleconferenced meeting, the agency must:
• Provide notice of the video-teleconferenced regular meeting that identifies the meeting as a video-teleconference in its regular meeting schedule as (required by KRS 61.820, governing regular meetings);
• Provide notice of a video-teleconferenced special meeting that identifies the meeting as a video-teleconference in its written special meeting notice (as required by KRS 61.823, governing special meetings);
• Provide specific information in the video-teleconferenced meeting notice on how the public or the media may view the meeting electronically (the Zoom link, YouTube channel, Facebook page, etc); and
• If the public agency elects to provide a physical location for a video-teleconferenced meeting — or two or more members attend the video-teleconferenced meeting from the same physical location — the public agency must precisely identify a “primary physical location” of the video-teleconference where all members can be seen and heard and the public may attend (as required by KRS 61.840, governing conditions for attendance at a public meeting).
• If a regular meeting was originally scheduled as an in-person meeting but is changed to a video-teleconference, the meeting remains a regular meeting (rather than converting to a special meeting) as long as the original date and time remain the same. The public agency must nevertheless issue a special meeting notice (as required by KRS 61.823(4), governing special meeting notice requirements) as well as the video-teleconferenced meeting notice requirements identified above.🤔
In a nutshell, video-teleconferenced meetings trigger additional public agency notice requirements aimed at ensuring that the public knows how/when/where it can “attend.”
In addition, the new law establishes minimal safeguards aimed at protecting public participation. A public agency must ensure:
• the same procedures with regard to participation, distribution of materials, and “other matters” are observed;
• members of the public agency who participate in a video- teleconference remain visible on camera at all times that business is being discussed; and
• the meeting is suspended if there is an interruption in the video or audio broadcast and the meeting resumes only when the broadcast is restored.
These are the only current safeguards for the public in the new video-teleconferencing law. Time will tell if they adequately protect the public’s right to know.
We have our doubts.🤨
MORE EXCEPTIONS (SECRECY)
In addition to giving public agencies the option to choose to conduct their public meeting by video-teleconference rather than in person, lawmakers re-wrote an exception to the open meetings law. 🤫
The exception that permits closed session discussion by committees/groups operating under state procurement laws when the discussion relates to the selection of a bidder for a state contract — which is found at KRS 61.810(1)(n) — now applies to groups established under “other state or local law to select a successful bidder for award of a state or local contract.”
Because, of course, more secrecy in public purchasing is always better than less!😠
ONE POSITIVE: A KENTUCKY ANTI-SLAPP LAW
There was at least one bright moment in the 2022 Regular Session. The long overdue enactment of a Kentucky anti-SLAPP law “will provide defendants a way to quickly dismiss meritless lawsuits—known as ‘SLAPPs’ or ‘Strategic Lawsuits Against Public Participation’—filed against them for exercising their First Amendment rights.”👏
Since public agencies have attempted to silence open records requesters/open meetings complainants — who they perceive as critics — by hauling them into court, this is a great achievement.
You can learn more about Kentucky’s new anti-SLAPP law, as well as these less welcomed changes to the law, at the Kentucky Open Government Coalition’s July 27 free webinar — rescheduled from July 15 (our apologies) —at 10:00 am EST. More information to come.
Any analysis of legislative changes to Kentucky’s open government laws must conclude with a warning. Lawmakers continue to “modernize” and “clarify” the open records and open meetings laws out of existence. Kentuckians must be on high alert as the 2023 Regular Session approaches.😳
We encourage you to continue to make your voices heard in support of open government.