Rep. Maria Sorolis, D-Louisville, filed a second bill aimed at promoting compliance with Kentucky's open government laws on January 23.

HB 309 is the companion bill to HB 232 which Rep. Sorolis filed on January 9. The bills provide for mandatory attorney fee shifting in open records cases, and now, open meetings cases.

https://apps.legislature.ky.gov/record/20rs/hb309.html

https://apps.legislature.ky.gov/record/20rs/hb232.html

If enacted, the bills will require mandatory attorney's fee shifting if a court finds that there was " a complete absence of a justiciable issue" in the open records appeal or "no justiciable reason for the agency's denial of an open meetings complaint."

HB 309 goes one step further by amending existing law to authorize the attorney general and "the agency" — presumably the offending agency — to vacate all actions taken at meetings that was not properly noticed as regular or special meetings. A court may also vacate all actions taken at an improperly noticed public meeting.

HB 309 retains permissive attorney fee shifting and award of penalties when the open meetings violation is found to be willful. But the mandatory fee shifting provision mirrors the proposed amendment to the open records law found in HB 232.

HB 232 proposes less dramatic changes to the open records law and is limited in scope to mandatory attorney's fee and costs upon a finding by a court that "there was a complete absence of a justiciable issue."

HB 309 expands the power to vacate all actions taken at a meeting where there is a finding that the agency "failed to

give notice of the notice of the meetings" under the laws governing regular and special meetings. If enacted, the power once reserved to the courts will also reside in the attorney general and "the agency" — again, presumably the offending agency.

Why the choice of the term "vacate," meaning "to set aside or make void; to nullify," rather than "void," which currently exists in the law, is unclear.

HB 309 retains the existing provision that permits a court to void "any rule, resolution, regulation, ordinance or other formal action of a public agency without substantial compliance" with the laws establishing the permissible legal bases for a closed session, the requirements for conducting a closed session, and the requirements for properly notifying the public of regular and special meetings.

As noted at the time Sorolis introduced HB 232, mandatory attorney's fee shifting is recognized as an effective compliance tool in open records disputes. Less analysis has been devoted to the effectiveness of mandatory fee shifting in open meetings disputes, but the stakes are very much the same.

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HB 232 was assigned to the Judiciary Committee on January 13, but has not moved.

HB 309 was assigned to the State Government Committee on January 27.