"Private" discussions of public business at public meetings pose a substantial threat to the public's right to know.
This open meetings issue emerged â and persists -- at Eastern Kentucky University following reports that EKU officials, staff, and regents exchanged emails, texts, and handwritten notes at the board of regents' April 23 luncheon, committee, and quarterly meetings.
Its a complaint I have heard before in a variety of factual contexts.
Having learned about the issue at EKU, I requested a copy of the student newspaper, The Progress's, open records request
for the communications exchanged at the April 23 meeting â not the underlying emails, texts, and notes exchanged but the newspaper's request for those records â as well as EKU's response to that request.
In a timely response to my request, EKU provided me with The Progress's April 25 records request and the university's May 2 denial of that request.
It is the university's denial of The Progress's request that is troubling.
• The university denied that electronic communications exchanged by regents on private devices during the meetings are public records, relying on the definition of that term found at KRS 61.870(2) and a 2015 open records decision issued by then Kentucky Attorney General Jack Conway on his last day in office. Because the university did not consider them public records, they were not retained and are no longer available. The university relied on a 2011 open records decision dealing with a request to a sheriff's department for dispatch records that were not maintained by the sheriff's office but were instead maintained by the city's dispatch service.
• The university relied on KRS 61.878(1)(i) and (j) in denying the request for existing electronic messages, "if any," arguing that they are preliminary drafts or notes or memoranda in which opinions are expressed/policies formulated. Those exchanged by university counsel and the president, regents, or staff, the university argued, are shielded from disclosure by the attorney client privilege.
• The university did not dispute the status of handwritten notes as public records, but maintained that they constitute preliminary drafts and notes. Those handwritten notes exchanged by university counsel and the board chairman, the university reaffirmed, are shielded by the attorney client privilege. They, too, no longer exist.
However persuasive the university's arguments might be in an open records contexts â and I have long been a critic of the flawed legal analysis in the 2015 open records decision which the attorney general's staff has since done everything but expressly overrule â the arguments are not persuasive in an open meetings context.
Communications at a public meeting are meant to be just that: public.
The open meetings law is premised on the idea that the public has a right to hear and see everything that transpires at a public meeting. The open meetings law begins with the recognition that "the formation of public policy is public business and shall not be conducted in secret." KRS 61.800. The law's fundamental mandate is that "all meetings of a quorum of the members of any public agency 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." KRS 61.810(1).
The open meetings law does, of course, contain 14 statutory exceptions to this mandate. These exceptions authorize discussion of public business in a closed meeting from which the public is excluded. Inaudible or written communications between members during an open meeting improperly expand the limited scope of these exceptions, ignore the requirements that must be observed to conduct a close session, and defeat the purpose and mandate of the open meetings law by permitting officials to secretly discuss nonexempted topics.
If, in EKU's case, university counsel wished to communicate with the regents about proposed or pending litigation, she was entitled to do so under KRS 61.810(1)(c) after observing the requirements for conducting a closed session. The university acknowledges that the communications between university counsel and the chair at the April 23 meetings "related to legal advice for the organization or business of the meeting." This is not a legally recognized basis for a closed session.
Moreover, two open meetings statutes direct public agencies to ensure that their meeting locations permit effective public observation, "insofar as is feasible," including adequate acoustics. KRS 61.820(1); KRS 61.840.
On this basis, the attorney general has issued open meetings decisions dating back to 2001 recognizing that public officials "must avoid any whispered, inaudible, or closed discussion of the public's business." In 2017, the attorney general decided that a city commission violated the law by exchanging paper ballots at a public meeting, reasoning that written "straw" balloting "constitutes a communication about public business and should not have been conducted in secret during an open session."
It's a very short step to a determination that any written or electronic communications between public agency officials at a public meeting violates the open meetings law.
Many officials are issued iPads and other electronic devices. Most who are not issued devices, as here, bring their own. Where do we draw the line on improper "private" communications between officials at a public meetings? Should it matter who "owns" the device where the potential for abuse is the same?
The communications exchanged at the EKU Board of Regents' meeting were not retained â raising a separate issue under records management laws found in Chapter 171 of the Kentucky Revised Statutes â and their content is unknown. We cannot determine how substantive those communications were. But the conduct itself invites abuse and threatens the public's right to know. Technology has made it easy.
As the attorney general noted in the 2001 open meetings decision, "Some intrusions on the concept of open government are more offensive than others, but the language of the Open Meetings Act, and its underlying intent, support a strict prohibition on any whispered discussions of public business in a public meeting. Any other conclusion begs the question: Where does the right of public agency members to privately educate themselves in a public meeting end, and the requirement of open discussion of the public's business begin? Any diminution of the principle of open government must, in our view, be checked."
To this I would add written or electronic discussion of public business during a public meeting.
