Legal Resources/Freedom of Information
The following are questions frequently asked to the Freedom of Information Hotline
Q. May a public agency close a meeting because there is some possibility that what it will be discussing will result in litigation?
A. No. The statute says that only discussions of "proposed or pending litigation" may be held in closed session and the Kentucky Attorney General has opined that a meeting may not be closed based on the mere remote possibility of litigation.
Q. I've followed your advice but the public agency still refuses my request for a record. What can I do?
A. You may write the Attorney General requesting an opinion that the agency has violated the law or you may file a lawsuit in circuit court against the public agency. The appeal to the Attorney General is less expensive and may produce a quicker result than litigation. If you receive an adverse opinion from the Attorney General you may still go to to circuit court by filing an appeal within 30 days after the Attorney General renders his opinion.
Q. A public agency held a special meeting but did not provide my newspaper with written notice in advance. Was it required to?
A. It depends. The law requires that a written notice shall be delivered to each media organization which as filed a written request, including a mailing address, to receive notice of special meetings. The public agency periodically, but not more than once in a calendar year, may inform media organizations that they will have to submit a new written request to be supplied with special meeting notices. If you have any doubt as to whether you have a current written request with a public agency the special meetings of which you would like to know about, file a new written request.
Q. The local school board said it was going into executive session to discuss "personnel matters", but we believe they really discussed whether to give a raise to the cafeteria workers. Did the school board violate the Open Meeting Act?
A. There appears to be two problems with the school board's handling of this closed session. First, the so-called personnel exemption does not permit the discussion of general personnel matters in closed session. Instead, the school board can have a closed session under this exemption only if it involves a discussion which may lead to the hiring, firing or discipline of a particular employee. Whether to provide raises to a class of employees is a policy matter and the public, not to mention that group of employees, has an interest and right to observe the discussion.
In addition, even if the school board had gone into closed session for a legitimate reason under the "personnel" exemption, the announced reason for the session was inadequate. The law requires the public agency to identify the exemption which justifies a closed session and explain why it does; therefore, simply saying "to discuss personnel issues" is inadequate. The board should have said something more specific, for example, "to discuss a complaint which could lead to the discipline of dismissal of a particular employee."
Q. What is my recourse if I have been asked to leave a public meeting and I believe the meeting is being closed in violation of the Open Meeting Act?
A. First of all, be sure to lodge your objection on the record at the meeting, if possible. When there is a motion to go into closed session and the stated basis seems to be inadequate, ask to be recognized and state the reason for your objection, If the public agency refuses to reconsider and insists that you leave, do so. The law provides some recourse, although it is after the fact.
(If you are closed out of the meeting before you have a chance to object on the record, get your objection to the public agency some how. Try knocking on the door and asking to speak to the chairman or ask someone to deliver your note with your objection to the chairman.)
Before seeking an opinion of the Attorney General, you must write a letter to the public agency stating why you believe their closed session was a violation of the Open Meetinsg Act and suggesting how they should correct the violation, For example, you could suggest that they start over again, holding their discussion and vote in a public session so the public can participate. If you do not get a satisfactory response from the public agency, you can then ask the Attorney General for an opinion.
Q. The consultant hired by the fiscal court has submitted its final report but the fiscal court won't give me a copy. Am I entitled to it?
A. It would seem logical that you are, since it was the final report of the consultant. There have been some cases, however, in which the Attorney General has held that you are not entitled to that consultant's report until the fiscal court has taken final action with regard to the report. Under this reasoning, it is the final action of the public agency which is important, rather than the fact that the consultant has completed her work. Fact situations vary, however, so feel free to check with one of your hotline attorneys if this situation arises.
Q. A source gave me a great quote that I really want to use. The source said "John Doe wouldn't know an honest person if he ran smack into him; John Doe's been lying about his college degree for 20 years!" I know it's probably defamatory this way but what if I change it to read "in my opinion..."
A. Unfortunately, this won't help. Under Kentucky law, the newspaper which publishes a defamatory statement uttered by a source is just as liable for defamation as the source of the statement would be. Making it clear that the statement is nothing but the opinion of your source does not insulate you from legal responsibility.
Q. A candidate for local office has submitted a campaign ad stating that has opponent's claim to be a law abiding citizen is proven false by his criminal record. Is there a problem publishing this?
A. This takes some examination. Is there a criminal record on this candidate? If so, take a look at what the convictions were for and how long ago they occurred. The proposes ad could be a real problem if, for example, there was only one minor charge when the candidate was eighteen years old and his record has been clean as a whistle throughout the 20 years since then.