Opinion
Opinion By: Chris Gorman, Attorney General; Thomas R. Emerson, Assistant Attorney General
Your letter concerns public access to parole release hearings for adult felony offenders.
You state KRS 439.330 requires in part that the Parole Board study the case histories of persons eligible for parole and deliberate on that record and conduct hearings on the desirability of granting parole. You also mention KRS 439.340(2) relative to a hearing and interview of a prisoner before the granting of a parole.
You maintain that there are three phases to a parole release hearing: the interview and discussion with the prisoner, the deliberation of the Parole Board members present at the hearing, and a victim's hearing that, if applicable, is held a week or two prior to the parole release hearing. KRS 439.340(7) provides in your opinion that a victim's hearing may be closed at the discretion of the victim. You also refer to KRS 61.810(1) relative to the closing of the deliberations of the Parole Board.
Your first question is as follows:
Except for victims' hearings and the deliberations of the Parole Board, is the interview and discussion portion of a parole release hearing with the prisoner closed by statute?
KRS 439.320(1) states in part that the Parole Board consists of seven members. Under KRS 439.320(4) a quorum of the Parole Board is three members for parole hearings (unless any member of the full board requests that the full board hear the case) and four members for all other business.
KRS 439.340(2) states in part that before granting the parole of any prisoner, the board shall have him appear before it or any two or more members for interview and hearing.
KRS 439.340(5) provides in part that in addition to or in conjunction with each hearing conducted under KRS 439.340(2), the parole board shall conduct a hearing of which the following persons shall receive not less than 45 nor more than 90 days' notice: the Commonwealth's Attorney who shall notify the sheriff and chief of police of every city and county in which the prisoner committed any Class A, B, or C felony for which he is imprisoned, and all identified victims of the crimes or the next of kin of any victim who is deceased.
KRS 439.340(7) states in part that any hearing provided for in KRS 439.340(5) shall be open to the public unless the persons having a right to appear before the parole board request closure of the hearing for reasons of personal safety.
KRS 61.810(1)(a) provides that deliberations for decisions of the Kentucky Parole Board may be closed to the public.
KRS 61.810(1) states that all meetings of a quorum of the members of a public agency at which any public business is discussed or at which any action is taken shall be public meetings and open to the public.
KRS 61.810(2) provides:
Any series of less than quorum meetings, where the members attending one (1) or more of the meetings collectively constitute at least a quorum of the members of the public agency and where the meetings are held for the purpose of avoiding the requirements of subsection (1) of this section, shall be subject to the requirements of subsection (1) of this section. Nothing in this subsection shall be construed to prohibit discussions between individual members where the purpose of the discussion is to educate the members on specific issues.
KRS 61.800 states:
The General Assembly finds and declares that the basic policy of KRS 61.805 to 61.850 is that the formation of public policy is public business and shall not be conducted in secret and the exceptions provided for by KRS 61.810 or otherwise provided by law shall be strictly construed.
Obviously the deliberations for decisions of the Kentucky Parole Board may be conducted in closed sessions. KRS 61.810(1)(a). The hearings conducted pursuant to KRS 439.340(5) may be closed pursuant to a closure request by the persons having a right to appear at such hearings for reasons of personal security. See KRS 439.340(7).
All exceptions to the open meetings provisions are to be strictly construed as, basically, meetings of public agencies are to be open to the public with as few restrictions as possible. KRS 439.340(2) contains no restrictions relative to public accessibility to the interview and hearing dealt with by that particular statutory subsection. Since three members of the Parole Board constitute a quorum concerning parole hearings (KRS 439.320(4)) any hearing conducted under KRS 439.340(2) by three or more members of the Parole Board would be a public meeting of a public body and open to the public.
KRS 439.340(2) authorizes as few as two members of the Parole Board to conduct the hearing required by that statutory subsection. Obviously two members of the Parole Board do not constitute a quorum and thus prior to the 1992 amendments to the Open Meetings Act such a hearing would not be a public meeting of a public agency.
The Open Meetings Act as amended in 1992, in KRS 61.810(2), deals with "less than quorum meetings." This particular subsection has not been clearly stated and ultimately will have to be presented to a court of law for interpretation. It is our opinion, however, that this subsection in this situation would prohibit the Parole Board from adopting a procedure whereby it utilizes two-person panels to conduct hearings and to prohibit public accessibility when panels of three or more Parole Board members conducting the same kinds of hearings would be clearly open meetings open to the public. Thus, if the Parole Board utilizes two-person panels to conduct the hearings required by KRS 439.340(2) such hearings are open to the public.
Your second question asks whether the Chairman of the Parole Board has the authority to open or close any portion of a parole release hearing.
We have attempted to deal with Parole Board hearings conducted pursuant to KRS 439.340(2) and (5). The Chairman of the Parole Board has no unilateral authority to open or close any portion of those hearings. Hearings may only be closed when there is specific statutory authorization, such as KRS 439.340(7), and the terms of the statute are expressly satisfied.
Your third question cites a section of the Open Records Act (KRS 61.878) and asks whether that statute or any other statute authorizes the opening or closing of Parole Board release hearings to various government officials.
As a general rule a public meeting of a public body is either open to everyone under the Open Meetings Act or it is closed to everyone under the Open Meetings Act or it is closed to everyone under a statutorily recognized exception to the Open Meetings Act. There is no principle of selective admission set forth in the Open Meetings Act. See KRS 61.840 setting forth the conditions for attendance at a public meeting.