Question of the day: What impact did Kentucky's 2021 Special Session have on the open meetings and open records laws?
Answer: HJR 1 extends the temporary modifications to the open meetings law authorizing public agencies to video or audio teleconference their public meetings to January 15, 2022. It is less clear how HJR 1 impacts the open records law (see below).
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"With public attention rightly focused on the life or death decisions made by state lawmakers in recent days, it is understandable that the public demonstrated less interested in the impact of these decisions on Kentucky's open government laws.
But state lawmakers largely shifted responsibility to local officials to make those decisions, and local decisions must be made at public meetings governed by the open meetings law and documented in public records governed by the open records law.
WHAT DID STATE LAWMAKERS DECIDE ABOUT PUBLIC AGENCY MEETINGS AND RECORDS DURING THE SPECIAL SESSION?
On September 7, Cincinnati's WLWT-News 5 reported:
"House Bill 1, which would extend the state of emergency and affirm many of the governor's executive orders, passed the house state government committee with one vote against it.
"Speaker of the House Rep. David Osborne says the bill still includes provisions for public meetings to be held virtually, a question posed by a few legislators."
https://www.wlwt.com/article/kentucky-lawmakers-to-meet-for-special-ses…
Our review of HB1 did not confirm Osborne's statement.
We asked the Capitol press corp if it could confirm the report. WDRB's Marcus Green advised:
"I think a question was asked about this Tuesday by @buddywheatleyky re: HJR 1. The answer was that it does allow it, if I recall."
Courier Journal reporter Joe Sonka confirmed, "Osborne was asked that in committee Tuesday and said it does."
It appears that Osborne was referring to HJR 1 Sec 2 (1)(c) which "Extend(s) 2020 RS SB 150, 2020 Ky. Acts ch. 73, until January 15, 2022, to the extent the provisions are not superseded by statute or administrative regulation."
Section 9 of HJR 1 states that "Nothing in this Resolution shall be interpreted to allow state agencies to remain closed for regular in-person business."
https://apps.legislature.ky.gov/recorddocuments/bill/21SS/hjr1/bill.pdf
Although lawmakers did not directly address the open meetings and open records laws, we have examined this language and believe their intent was to extend the temporary modifications to open meetings and open records found in Section (8) of SB 150âenacted in 2020âthrough January 15, 2022.
https://apps.legislature.ky.gov/recorddocuments/bill/20RS/sb150/bill.pdf
HOW DOES HJR 1 IMPACT THE OPEN MEETINGS LAW
This means that until January 15, 2022, state and local public agencies:
• may conduct any meeting, including regular meetings, by live audio or live video teleconference;
• must provide written public notice to agency members and the media at least 24 hours before the meeting (as required by KRS 61.823(3) to (5)) that the meeting is being conducted by live audio or video teleconference;
• may conduct meetings by live video teleconference if the public agency has the technological capacity to provide for live video teleconference or live audio teleconference if the public agency does not have the technological capacity to provide for a live video teleconference;
• must provide specific information on how any member of the public or media organization can access the meeting.
HOW DOES HJR 1 IMPACT THE OPEN RECORDS LAW
It is less clear how HJR 1 impacts the SB 150's modifications to the open records law. Those modifications consist of:
• extending the deadline for public agency response to an open records request to10 days of receipt;
• delaying on-site inspection during the pendency of the state of emergency.
Section 9 of HJR 1 states that "Nothing in this Resolution shall be interpreted to allow state agencies to remain closed for regular in-person business." This can be read to supersede the modification in SB 150 permitting delayed on-site inspection.
As for the five business day deadline for agency response to open records requests enacted by the 2021 General Assembly in HB 312, this may (or may not) constitute a statute that supersedes SB 150's ten day deadline for agency response. In light of this ambiguity, agencies would be well-advised to adhere to the five business day deadline. The public would be well-advised to expect some agencies to adhere to the ten day deadline and exercise patience.
https://apps.legislature.ky.gov/recorddocuments/bill/21RS/hb312/bill.pdf
WHAT LIES AHEAD?
As has been their practice, lawmakers left much to chance. Chance, in this context, means conflicting legal interpretation of vague provisions that make no direct reference to either the open meetings or open records laws.
It is likely that some public agencies will be unaware of these change since HJR 1 makes no reference to the open meetings and open records laws. Others will struggle to understand them. Still others will ignore them.
What lies ahead as public agencies undertake local policy making at meetings governed by the open meetings law and in records governed by the open records law? This will become clear as attention turns from Frankfort to each locality.
