Covering open meetings and public records

FOIA & Public Records

All states, the District of Columbia and the federal government have enacted open records or “freedom of information” laws that guarantee access to government documents. In recent years, there has been an effort to address access to electronic records in many jurisdictions.

Sunshine laws

Open records and open meetings laws – laws that make most government meetings open to the public – are called “sunshine” laws because they “let the sun shine” on the workings of government.

Open records and meetings laws vary from jurisdiction to jurisdiction.
Records laws often contain exemptions for personal privacy, law enforcement and investigative files, commercially valuable information, pre-decisional documents, national security interests, and attorney-client communications and attorney work product.

FOIA

The Freedom of Information Act:

Enacted on July 4, 1966, took effect one year later.
Any person has a right, enforceable in court, to obtain access to federal agency records.
Some records (or portions of them) may be protected from public disclosure by one of nine exemptions or by one of three special law-enforcement record exclusions.
A FOIA request can be made for any agency record.
Before sending a request to a federal agency, you should determine which agency is likely to have the records you are seeking.
Each agency’s website will contain information about the type of records that agency maintains.

RECORDS IN KENTUCKY

The Kentucky General Assembly passed the Open Meetings Act in 1974.
Requires public agencies to open most of their meetings to the public.
The Open Records Act was passed in 1976.
Requires public agencies to open most of their records to the public.
WHAT IS AN OPEN RECORD?
- Books, papers, maps, photographs, cards, tapes, discs, diskettes, software, recordings or other documentation regardless of physical form or characteristics.
- Prepared, owned, used, in the possession of or retained by a public agency.
Not public: records of a private company not related to its state or locally funded operations.

WHOM DO YOU ASK?

The official custodian of records is the chief administrative officer or any other employee who is responsible for maintenance, care and keeping of public records.
A verbal request sometimes will do.
Many agencies require a written statement, describing the records to be inspected, signed by you and with your name printed legibly on the request. Sometimes agencies have special forms for you to fill out.
A written request is always better.

EXPENSIVE COPIES?

The agency may require that your request for copies be in writing, and it may require payment in advance, including postage if you want the materials sent to you.
The agency cannot charge more than the actual costs for copies, unless you have requested the copy in a nonstandardized format, and it cannot add staff time to research or prepare copies into the cost. An agency may permit you to have online access to computerized records.

WHAT’S NOT PUBLIC?

You cannot see:

Personal records that would constitute an invasion of a person’s privacy.
Confidential records compiled and maintained for scientific research.
Records that would give a competitor an unfair advantage.
Documents regarding prospective location of a business.
Property acquisition by a public agency.
Academic tests or exams for licenses.
Law enforcement investigations before action is taken.
Preliminary records.
Records sealed by federal law or by the General Assembly.

OPEN MEETINGS LAW

The laws give the public (and the press) the right to attend the meetings of commissions, councils, boards and other government bodies.
Some states permit electronic meetings so long as public access to the meetings is assured.
The law is for the PUBLIC. Members of the media have no rights beyond those the law grants to every member of the public.

EXEMPTIONS

Most states include exemptions for personnel matters, collective bargaining sessions, discussions with agency attorneys, and discussion of the acquisition or sale of public property.

KENTUCKY OPEN MEETINGS

KRS 61.805 to 61.850

Virtually every state or local governing body that exists to serve or regulate the citizenry including those committees (by whatever name) that are created by public agencies.
Examples: school boards, city councils, municipal corporations, advisory committees, subcommittees, ad hoc committees of agencies and interagency bodies.
Exceptions: a committee of a hospital staff or committee formed to evaluate qualifications of public agency employees.

WHAT IS OPEN?

EVERYTHING, except:

Parole Board deliberations.
Deliberations on future sale or purchase of real property when the publicity would probably affect value.
Discussions of proposed or pending litigation; grand and petit juries.
Collective bargaining negotiations.
Specific (not general) personnel issues.
Negotiations with businesses that might be jeopardized.
Judicial or quasi-judicial bodies when neither the person being judged nor his representative is present (but planning and zoning commissions and boards of adjustments are specifically open).
Meetings of less than a quorum of the agency’s members are to be open if a series of such meeting is scheduled for the purpose of avoiding the requirements of openness.

SECRET SESSIONS?

The general nature of the business to be discussed in secret and the specific law allowing secrecy must be noted in open session. A motion and a vote to go into closed session are required during the open session. No final action can be taken in private and no matters are to be discussed in private except those exceptions provided in the law.

NOTICE

Agencies must make a schedule of regular meetings available to the public.
Generally, 24 hour notice is required for a special meeting.

SPECIAL MEETINGS

Notice of a special meeting must be made in writing and include date, time, place and agenda, with actions at the meeting limited to items on the agenda.
Notice must be given at least 24 hours in advance by hand delivery, fax machine or mail to every member of the agency and to media that have requested, in writing, to be notified.
The notice must also be posted at the meeting place and at agency headquarters.
Action at meeting is limited to the reason it was called.

WHAT DO YOU DO IF…

You’re refused entry to a meeting that you believe to be open?

Request that the presiding officer cite the specific statute, number and section that permits the organization to close the meeting to the public, and ask that this be included in the minutes.

You believe the members are going into a secret session illegally?

Don’t be afraid to stand up and request that the agency follow the law by voting to go into secret session and by stating the reason with specific statute, number and section.
Don’t be afraid to ask for a recess so you can seek counsel on challenging the decision to close a public meeting.

TELECONFERENCES

They’re open and subject to the same requirements as regular meetings. A video teleconference is a meeting between persons at different locations, where all the participants can see and hear each other by audio-video equipment.

FERPA

Educational institutions often try to hide records behind the Family Educational Rights and Privacy Act.

BUT…

FERPA applies only to educational records – grades, records from instructors about class performance, etc.
Does NOT apply to police records or other non-educational records such as address.
Some schools use FERPA as a shield to cover up crimes, particularly by athletes, by adjudicating through a non-criminal process such as a judicial board.

FERPA is a very poorly crafted law that changes as challenges go to court.

Judiciary interprets in ways that either broaden or narrow application of FERPA.

SHIELD LAW

Kentucky’s Shield Law: KRS 421.100

Newspaper, radio or television broadcasting station personnel need not disclose source of information. No person shall be compelled to disclose any legal proceeding or trial before any court, or before any grand or petit jury, or before the presiding officer of any tribunal, or his agent or agents, or before the General Assembly, or any committee thereof, or before any city or county legislative body or any committee thereof, or elsewhere, the source of any information procured or obtained by him, and published in a newspaper or by a radio or television broadcasting station by which he is engaged or employed, or with which he is connected.

CREDITS

Prepared by Amanda J. Crawford, assistant professor, School of Journalism & Broadcasting, and Chuck Clark, director, WKU Student Publications, Western Kentucky University
Reporter’s Handbook, Kentucky Press Association
First Amendment Handbook, Reporter’s Committee for Freedom of the Press
www.foia.gov