Opinion
Opinion By: Andy Beshear,Attorney General;Matt James,Assistant Attorney General
Open Meetings Decision
The questions presented in this appeal are whether the built-to-suit selection committee ("Committee") in the Finance and Administration Cabinet ("Finance") is a public agency subject to the Open Meetings Act, and whether Finance violated the Open Meetings Act in not holding meetings of the Committee in public, setting a regular schedule of meetings, and keeping minutes of those meetings. We find that the Committee is a public agency subject to the Open Meetings Act. In failing to hold meetings of the Committee in public, set a regular schedule of its meetings, and keeping minutes of its meetings, Finance violated the Open Meetings Act.
Background
On August 31, 2017, Alfred Miller of the State Journal submitted a request to be notified under KRS 61.823(4) of all special meetings of the Capital Plaza redevelopment project built-to-suit selection committee. 1 Finance responded to the request on September 7, 2017, stating:
No special meetings are currently scheduled at this time. The Open Meetings Act has not been found to reach down through layers of administrative organization to affect the day-to-day work of agency personnel. Per KRS 56.8163, a built-to-suit selection committee is composed primarily of agency merit employees who review and evaluate bids in a manner similar to any other state procurement governed by KRS 45A.
The State Journal sent an open meetings complaint addressed to the Chairperson of the Capital Plaza Redevelopment Project Built-to-Suit Selection Committee. The State-Journal contended:
The built-to-suit selection committee is a state government agency created by or pursuant to state statute . . . . The failure to admit the public to the open portions of its meetings, establish a schedule of regular meetings, notify the public of its special meetings and record minutes of its meetings violates KRS 61.810(1) and KRS 61.820, KRS 61.823 and KRS 61.835, respectively.
Finance responded to the complaint on September 15, 2017, reiterating its prior arguments. It further stated:
If required to hold public meetings on the substance of built-to-suit proposals, in addition to general concerns about undermining the confidentiality of the process, state employees assigned to the committee would need to concern themselves with the risk of subjecting themselves to liability for prematurely releasing information related to a contract award.
. . . .
Even assuming that the Open Meetings Act would require a build-to-suit committee to convene a nominal public meeting, matters of substance the committee may consider would not be discussed in an open forum. . . . If the build-to-suit committee were required to convene a nominal public meeting, it is likely that the only information of substance made available in the meeting would be the specific identities of the evaluation team members, which would tend to make the evaluators more susceptible to improper contact, pressure, and influence. 3
The State Journal initiated this appeal on September 22, 2017, reiterating its prior arguments. It further contended that it had "been informed that the public is essentially not entitled to know who the members of this committee are or even when it conducts its meetings -- despite the committee's power to forever alter the landscape of our community."
Finance responded to the appeal on September 26, 2017. It reiterated its prior arguments, and further stated:
Finance does not deem itself categorically immune or exempt from the Open Meetings Act . . . . The sole issue in the dispute here is the timing of the release of the information . . . . Once the award is finalized, the vast majority of information regarding this procurement that is currently preliminary and exempt from release, including the names of the selection committee members and the identities of the three finalists, will be final and subject to immediate release to the public under the Open Records Act.
Finance also added that the selection committee was not a public agency because "KRS 56.8169(16) makes clear . . . that it is the Commissioner of the Department for Facilities and Support Services, not the committee, which makes the award of the built-to-suit lease to the top ranked finalist. . . . The members of the committee independently score the proposals and interviews . . . ."
Analysis
The threshold question in this appeal is whether the Committee is a public agency subject to the Open Meetings Act. KRS 61.805(2) defines "public agency" as "(a) every state or local government board, commission, and authority," including "(e) any body created by or pursuant to state or local statute" and "(g) any board commission, committee, subcommittee, ad hoc committee, advisory committee, council, or agency." KRS 56.8163(1) provides "a built-to-suit selection committee is hereby created in the Finance and Administration Cabinet." The Committee is expressly created by statute.
Finance argues that Committee is not a public agency on the grounds that it is conducting the day-to-day work of agency personnel. Finance relies on OAG 94-25, an advisory opinion 4 in which we advised that "the phrase 'board, commission, committee, subcommittee, ad hoc committee, advisory committee, council, or agency' refers to . . . 'a group of persons acting as a unit, to whom there has been officially delegated the responsibility to consider, investigate, take action on, or report on specific matters entrusted to it.'" Id. KRS 56.8163(2) provides that "the selection committee shall participate in every instance of the cabinet acquiring space through built-to-suit, " and KRS 56.8169(11)-(16) specify the duties and procedures of the built-to-suit committee, among other statutes. It is therefore a group of persons acting as a unit, to which specific matters have been delegated by statute. While we did advise in OAG 94-25 that the Open Meetings Act "is not intended to provide public access to the day-to-day administrative work of a public agency, " the Committee is created by statute and charged with specific duties, and its meetings are not the "day-to-day administrative work of a public agency. " Finance further argues that the Committee is not a public agency because the Commissioner of the Department for Facilities and Support Services awards the lease under KRS 56.8169(16), and not the committee, and the committee independently scores the proposals. The fact that the commissioner also plays a role in the process and any independent scoring done by committee members do not negate the statutory nature of the Committee's duties. Accordingly, using the guidance provided in OAG 94-25, the Committee is a public agency subject to the Open Meetings Act.
Given that the Committee is a public agency, KRS 61.810(1) provides 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 by the agency, shall be public meetings, open to the public at all times," and enumerates the exceptions. KRS 61.820(2) provides that "all public agencies shall provide for a schedule of regular meetings . . . . The schedule of regular meetings shall be made available to the public." KRS 61.835 provides that "the minutes of action taken at every meeting of any such public agency, setting forth an accurate record of votes and actions at such meetings, shall be promptly recorded and such records shall be open to public inspection at reasonable times no later than immediately following the next meeting of the body." A public agency subject to the Open Meetings Act must conduct all meetings of a quorum of its members in which any public business is discussed or action taken as public meetings, establish a schedule of regular meetings that must be available to the public, and record minutes of all action taken which shall be made available to the public. Finance does not claim that the Committee has followed any of these requirements.
Instead, Finance argues for the need for general confidentiality of the built-to-suit committee process. KRS 56.814 forbids state employees from disclosing any information concerning a potential lease of real property by the state prior to advertisement. KRS 56.8169(9)(c) and (16)(c) require the built-to-suit committee to keep written proposals and best-and-final offers confidential until the lease is awarded, and KRS 56.8169(14) provides that "members of the selection committee shall keep confidential the substance of an interview. " 200 KAR 5:307 § 4 provides that for competitively negotiated contracts, "proposals shall not be subject to public inspection until negotiations between the purchasing agency and all offerors have been concluded and a contract awarded to the responsible offeror."
While the need for confidentiality during many aspects of the Committee process is clearly established, the Open Meetings Act contains provisions to protect such confidentiality. KRS 61.810(1)(b) allows for a public agency to go into closed session for "deliberations on the future acquisition or sale of real property by a public agency, " and KRS 61.810(1)(g) allows for closed sessions for "discussions between a public agency and a representative of a business entity and discussions concerning a specific proposal." Finally, KRS 61.810(1)(k) generally allows closed sessions for "meetings which federal or state law specifically require to be conducted in privacy." Various confidential discussions of the Committee may qualify for any or all of these exemptions. The Open Meetings Act thus provides an express mechanism to maintain the confidentiality required regarding the Committee. Further, KRS 61.8169(12), (15), and (16)(d) all provide that "the selection committee shall meet in executive session, " indicating statutory intent that the Committee should meet and then go into executive session, rather than exempting the Committee's meetings from the Open Meetings Act entirely.
Finance argues that disclosure of the identities of the Committee members may subject them to improper contact and influence. However, there is always a risk of improper contact in any issue of public importance. While conducting the Committee meetings in public may potentially subject the committee members to improper contacts, KRS 61.800 provides that "the exceptions provided for by KRS 61.810 or otherwise provided for by law shall be strictly construed," and the Open Meetings Act makes no exemptions based on the mere possibility of improper contact. While any contacts or pressure put on the committee members by others may unfortunately result, public service requires that meetings of agencies conducting public business must be conducted in public.
Finance further argues that given the nature of the built-to-suit committee, any matters of substance would not be discussed in open session anyway, and any meeting would be only a "nominal public meeting. " While a "nominal" public meeting may be procedurally cumbersome, it nonetheless is required. Agencies regularly hold special meetings solely for the purpose of discussing business entirely in closed session. See, e.g. , 17-OMD-044; 07-OMD-099; 95-OMD-149. Finance does not provide any valid legal reason for the Committee not to comply with the Open Meetings Act.
The Committee is a statutory creation with express statutory duties, and is therefore a public agency subject to the Open Meetings Act. Finance does not dispute that the Committee does not hold its meetings in public, set a regular schedule of meetings, or keep minutes of its meetings. Accordingly, in not conducting the meetings of the built-to-suit selection committee in public, setting a regular schedule of its meetings, and recording minutes of its meetings, the Finance and Administration Cabinet violated the Open Meetings Act.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.846(4)(a). The Attorney General must be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.
Footnotes
Footnotes
1 The State Journal also submitted an open records request on August 31, 2017 for "a copy of the minutes of the past meetings of the Capital Plaza redevelopment project build-to- suit selection committee . . . and/or any other records identifying the members of the selection committee. In addition, we request a copy of the regular meeting schedule for the selection committee . . . ." Finance also responded on September 7, 2017 that "no responsive records exist," and that "any records regarding the identity of the committee members are preliminary and exempt from disclosure, pursuant to KRS 61.878(1)(i) and (j), until the procurement process has concluded." Although the open meetings notification request and open records request are in many respects intertwined throughout the process leading to this appeal, the State Journal has indicated that it intended this appeal to be an open meetings appeal, and so we do not address the open records issues here.
2 The State Journal proposed as a remedy that:
the selection committee release any record or recording of the open session of any meetings conducted to date[,] . . . acknowledge that it is a public agency . . ., admit the public to the open portions of its meetings, and agree to conduct all future business in a manner consistent with the requirements of the open meetings act, including adoption of a regular meeting schedule, notice of special meetings and recording minutes.
3 Finance also cited 11-ORD-070 for the proposition that "to insure the integrity of the process, and avoid subsequent protests, the public's interest in the responders' identities must yield to the Commonwealth's 'need for governmental confidentiality' to insure that the contract ultimately awarded is most advantageous to the Commonwealth." 11-ORD-070 was an open records appeal seeking "records identifying 'all responders' to six Requests for Information." Id. We held that "until such time as negotiations are concluded and a contract is awarded, the Finance and Administration Cabinet may properly rely on KRS 61.878(1)(i) and (j) to deny Mr. Loghry's requests and similar requests." 11-ORD-070. It is not disputed that Finance may withhold proposals or related documents as preliminary until the final contract is awarded. However, that is not at issue here, as this appeal concerns whether the Committee is subject to the Open Meetings Act.
4 OAG 94-25 expressly stated that "this opinion is not an open meetings decision and consequently does not carry the force of law."