Kentuckians are justifiably proud of their nationally recognized open meetings and records laws, popularly referred to as sunshine laws.
Since the mid-1970s, these laws have enabled the public to hold their officials and agencies accountable through meetings and records access. The policies that support the laws have, as Kentucky’s Supreme Court once noted, “revealed whether public servants are indeed serving the public” and provided “impetus for agencies steadfastly to pursue the public good.”
They are, as U.S. Supreme Court Justice Louis Brandeis presciently observed, “the best of disinfectants.”
But Kentucky’s sunshine laws, which have not been substantially amended in 23 years, are showing their age.
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Successive legal challenges, coupled with a revolution in the dynamics of communication, have exposed deficiencies in the laws that warrant legislative action.
In a newly released report, “Shining the Light on Kentucky’s Sunshine Laws,” the Bluegrass Institute Center for Open Government identifies the deficiencies which impede effective implementation and enforcement, focusing on the need for clarification, reconciliation and modernization of the current laws.
Recognizing that any revision to the sunshine laws must be rooted in the strongly worded statements of legislative policy favoring the public’s right of access, the report recommends amendments that are consistent with these policies.
For example, lawmakers must clarify the definition of the term “public agency” as it relates to courts, judicial agencies and private entities that derive 25 percent or more of their funds from state or local authorities.
The statute aimed at capturing the records of private entities that receive public funds was never a model of clarity.
Revisions in 2012 not only established an ambiguous time frame for the 25-percent assessment, they also excluded from that calculation state or local funds the entity receives for goods or services provided under competitively bid contracts.
This has enabled entities receiving virtually all their funds from state or local authorities — like Utility Management Group, LLC, a private for-profit company that provides management services for public waterworks under contracts with local agencies — to evade public scrutiny.
The courts and judicial agencies, on the other hand, have liberally applied the narrow holding in an early Kentucky Supreme Court case to avoid the application of the sunshine laws, even in matters as banal as auctioning surplus property.
Lawmakers must also clarify the statute prohibiting serial less-than-quorum meetings of public officials held to avoid requirements if meetings are held to “educate” agency members.
It was this loophole that the University of Kentucky exploited in 2014 to conduct serial less-than-quorum meetings to “educate” its trustees on the budget while excluding concerned parents facing escalating tuition costs.
Lawmakers must reconcile conflicting exemptions in the open meetings and records laws, such as the open-records exemption that generally permits nondisclosure of a performance evaluation but has no counterpart in the open-meetings exemptions, thus necessitating public discussion of the evaluation should the subject arise in a public meeting.
This conflict was litigated in the Spencer Circuit Court in 2009, following a legal challenge to the local board of education’s decision to conduct a closed-session discussion of the superintendent’s evaluation, and resolved in favor of the challenger.
Lawmakers must also reconcile statutes that simultaneously establish the requirements for conducting closed sessions and excuse agencies from observing these requirements in nearly all cases.
Finally, and perhaps most importantly, lawmakers must undertake a substantial revision aimed at modernization of the sunshine laws.
The report identifies numerous anachronisms in the laws and postulates that the single gravest threat to open government is the refusal of public officials to recognize that communications about public business conducted on privately owned electronic devices or personal accounts are public records and must be treated as such for all purposes.
Unless this challenge is addressed by the legislature or the courts, the sunshine Kentuckians have enjoyed under their laws will soon fade.
Amye Bensenhaver is director of the Bluegrass Institute Center for Open Government. She wrote nearly 2,000 legal opinions open records and open meetings laws during a 25-year career as an Kentucky assistant attorney general.