A truly bizarre open records decision issued by the attorney general on July 15 determines that the minutes of a public agency meeting are protected from disclosure by the preliminary documents exceptions of the open records law.

Even more bizarre is the attorney general's failure to address an unappealed open meetings decision issued two months ago declaring that the same agency is a public agency subject to the requirements of the open meetings law.

The public agency at the heart of both disputes is the Technology Advisory Council (TAC). It was originally created by the state's former chief information officer and first met in January 2013 after then Governor Steve Beshear issued an executive order "centraliz[ing] operational control of all executive branch IT Infrastructure services under the Commonwealth Office of Technology."

The May 16, 2019, open meetings decision issued by the Office of the Attorney General resolved a dispute between Courier Journal reporter, Alfred Miller, and TAC.

https://ag.ky.gov/orom/2019/19OMD092.doc

In April, 2019, Miller filed an open meetings complaint with TAC's presiding officer, Charles Grindle, in which he alleged that TAC violated the open meetings law by refusing to admit the public to its meetings, failing to adopt a schedule of regular meetings and give notice of special meetings, and failing to record minutes of its meetings — a trifecta of open meetings violations.

As a means of remedying these violations, Miller proposed that TAC release records of its past meetings, acknowledge its status as a public agency, and agree to comply with the open meetings laws at all future meetings.

On behalf of TAC, the Finance and Administration Cabinet — an agency that exerts remarkable efforts in seeking ways to avoid public accountability — denied that TAC was a public agency.

Instead, Finance insisted, its meetings "merely consist of 'routine' assistance provided to Mr. Grindle." Once again, it trotted out the same tired argument it has raised in the past in other contexts. To subject these discussions to public scrutiny under the open meetings law, Finance argued, "would paralyze the operation of state government by prohibiting any consultations, discussions, or information sharing between public employees without a formal public meeting."

The attorney general's staff flatly rejected this claim in its May 2019 open meetings decision. The staff quoted from the TAC website:

"The Technology Advisory Council functions as the primary governance body for information technology in the executive branch of state government. The TAC advises the state CIO on implementation and management of strategic IT initiatives that maximize business value in support of service delivery while protecting the data and network resources that allow state government to operate.

Members of the council represent business, IT, or financial management leadership from each cabinet in the executive branch.

The TAC is chaired by the Chief Information Officer, Commonwealth Office of Technology."

At note 3, the attorney general's staff indicated that the TAC website identifies, by name, the 15 members of TAC and the agencies to which they are attached "as of March 6, 2019."

Finance's description of TAC as a body providing "routine assistance" was, thus, a masterpiece of understatement.

Nevertheless, on TAC's behalf, Finance agreed to voluntarily conduct future meetings in accordance with the open meetings laws "without waiving any argument that doing so goes beyond what is required by the Act."

The attorney general's staff rejected this offer of voluntary compliance to "moot" the legal question on appeal. The staff properly concluded that TAC is a public agency pursuant to KRS 61.805(2)(f), subject in every particular to the open meetings law, because its members are appointed by public agencies to discuss public business.

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=23043

Neither Finance nor TAC appealed this open meetings decision to the Franklin Circuit Court within 30 days, and the decision therefore has the force and effect of law.

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=23054

TAC is, indisputably, a public agency under the open meetings law.

Also in April 2019, the Courier Journal filed an open records appeal in which it complained that TAC violated the open records law by refusing to release minutes of its past meetings.

Given the 50 day deadline for issuing a decision in the CJ's open records appeal — as opposed to the ten day deadline for issuing a decision in the CJ's open meetings appeal — the attorney general's open records decision relating to TAC was not issued until July 15, two months after his open meetings decision relating to TAC and apparently without any reference to that open meetings decision.

In the open records decision issued on July 15, the attorney general does not cite or attempt to distinguish the May open meetings decision.

https://ag.ky.gov/orom/2019/19OMD137.doc

Instead, the attorney general acceded to Finance's characterization of the minutes of TAC's meetings as "meeting notes" exempted from disclosure by the preliminary documents exceptions to the open records law, KRS 61.878(1)(i) and (j).

The attorney general rehashed a line of authority construing the preliminary documents exceptions. Having confidentially inspected the "meeting notes," he described them as "reports and concerns from the 11 executive branch cabinets , the Office of the State Budget Director, and the Governor's Office on information technology-related issues, and reports from various officials within the Commonwealth Office of Technology on initiatives and concerns."

He affirmed denial of these "meeting notes," analogizing them to communications between officials within a cabinet on which no action was taken.

The attorney general concluded that disclosure "'would chill the free flow of information between the component parts of the TAC,' restraining state government officials from theorizing, questioning, hypothesizing, or commenting in regard to their assigned duties for fear of having their drafts, notes,and preliminary comments thrown into the public arena as if they were 'final action of a public agency.'"

This "analysis" is seriously flawed. Not only does it ignore an open meetings decision issued two months ago, it uncritically accepts the public agency's position and that position is contrary to 45 years of open meetings analysis recognizing that "the formation of public policy is public business."

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=23042

The express purpose of the open meetings law is to enable the public to monitor public agency discussions that culminate in final action — not just what that final action is, but how the agency decided on that action.

Minutes of public agency meetings may be a line by line recapitulation of the discussion at a public meeting or they may be "an accurate record of votes and actions at such meetings." Either satisfies the requirements of the open meetings law found at KRS 61.835.

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=23051

But the minutes of a meeting are public records "open to public inspection." "Meeting notes" are the equivalent of meeting minutes in the absence of agency compliance with its statutory duty to record and approve minutes.

How the attorney general got so far off track in his analysis is inexplicable.

19-OMD-092 is well reasoned and legally correct. It was not appealed to circuit court and therefore has the force and effect of law.

19-ORD-137 is legally indefensible and wholly inconsistent with the law announced in 19-OMD-092. It invites abuse of the worst kind in suggesting that the public should be excluded from discussions in which public officials "theorize, question, hypothesize, or comment" on their "assigned duties" at the meetings of public agencies — like TAC —

that are governed by the open meetings laws.

We expect no better from the Finance Cabinet. But it is unfortunate that the attorney general must still be reminded that "the formation of public policy is public business and shall not be conducted in secret."