New Attorney General Guidance on Open Records/Open Meetings

The Kentucky Office of the Attorney General issued the Attorney General Advisory: Changes to the Open Records Act and Open Meetings Act Following the Regular Session of the 2022 General Assembly on April 26, 2022.

1. Expiration of 2020 Senate Bill 150

Senate Joint Resolution 150 effectively ended the governor’s declaration of a state of emergency due to COVID-19. As such, the declaration of a state of emergency on which 2020 SB 150 was premised has ended and no public agency shall rely on the provisions of 2020 Senate Bill 150 when responding to open records requests or conducting open meetings.

2. Changes to Open Meetings Act

Effective July 14, 2022, House Bill 453 amends certain provisions of the Open Meetings Act to allow a public agency to conduct a meeting using video-teleconferencing technology without providing a primary physical location for the public to attend and watch the meeting. KRS 61.826(2)(d).

However, if two or more members of the public agency are present at the same physical location, then the public agency must identify a primary physical location where members of the public may observe the meeting. If the public agency chooses to provide a primary physical location, or if two or more members of the agency are in the same physical location, then the public agency must precisely describe the primary physical location for public attendance in its notice of the video teleconference meeting.

If an agency conducts a video teleconference meeting, it must include in its meeting notice “specific information on how any member of the public or media organization may view the meeting electronically.” KRS 61.826(2)(c).

Please note that audio-teleconferencing equipment is no longer permitted with the expiration of 2020 Senate Bill 150. An agency must conduct a meeting using video-teleconferencing equipment such that all members of the public agency can be seen and heard.

Additionally, House Bill 453 provides new exceptions for which a public agency may enter closed session:

• KRS 61.810(1)(n) now provides that state and local public agencies may discuss in closed session the bidding and awarding of contracts issued under the Model Procurement Code “or other state or local law,” including the general bidding statute, KRS 424.260.
• KRS 83A.150, which creates the “city manager” form of local government now provides that city manager cities may enter closed session no more than twice a year to conduct “a performance evaluation of the city manager.” KRS 83A.150(4)(d).

3. Open Records Act

While the General Assembly did not amend any provisions of the Open Records Act this session, the attorney general’s guidance reminds public agencies that they must respond to an open records request within 5 business days of receipt of the application, subject to limited exceptions. KRS 61.880(1).

The Kentucky Office of the Attorney General will publish its update to “The Kentucky Open Records & Open Meetings Acts: A guide for the public and public agencies” on or before June 20, 2022. In the meantime, please contact KLC Municipal Law Department with any questions at 859-977-3700.