New Attorney General Guidance on Open Records/Open Meetings

On June 24, 2021, the Kentucky Office of Attorney General (OAG) issued the Attorney General Advisory: Changes to the Open Records Act and Open Meetings Act following the Regular session of the 2021 General Assembly, effectively ending the provisions of Senate Bill 150 that apply to the Open Records Act and Open Meetings Act.

SB 150, adopted by the 2020 Kentucky General Assembly, contained temporary amendments to the Open Records Act and Open Meetings Act to recognize the extraordinary circumstances present during the pandemic. SB 150 remains in effect until either the Kentucky General Assembly or the governor declares an end to the March 6, 2020, state of emergency issued by Governor Andy Beshear.

The 2021 Kentucky General Assembly declared an end to the state of emergency effective June 28, 2021, with House Joint Resolution 77 (HJR 77). However, at the request of Governor Beshear, Franklin Circuit Judge Phillip Shepherd issued an injunction that prevents HJR 77 from taking effect, pending Governor Beshear’s lawsuit challenging the constitutionality of several measures taken by the Kentucky General Assembly to limit the governor’s emergency powers.

Out of an abundance of caution, the OAG advisory strongly recommends that public agencies operate as though the state of emergency and SB 150 end on June 28, 2021. The OAG advisory cautions that if the Kentucky Supreme Court finds HJR 77 constitutional, the state of emergency will be deemed to expire effective June 28, 2021. In that event, public agencies that operated under the temporary changes to the Open Records Act and Open Meetings Act authorized under SB 150 after June 28, 2021, will have violated the Acts.

To ensure compliance with the Open Records Act and the Open Meetings Act and provide residents transparency and responsiveness, the OAG advises public agencies to operate as though SB 150 ends June 28, 2021. Therefore, effective June 29, 2021, public agencies should manage open records under House Bill 312, and open meetings should resume under the Open Meetings Act.

House Bill 312 requires public agencies to adopt open records policies and procedures to include the following:

• Public agencies must respond to a request to inspect records within five business days; 
• Only residents of the commonwealth as defined by KRS 61.870(10) may request public records; 
• Any request must include a statement that the individual is a resident of the commonwealth; 
• Updated open records policy must include both the mailing address and email address at which the custodian may receive requests; 
• If the public agency has a website, it must publish its open records policy on the website as well as a copy of the OAG standardized form, though the public agency cannot require a citizen to use the form for a request and must accept a complete request in any form; and 
• Resume in-person inspection for public records requested under the Act.

Public agencies may still conduct public meetings by video teleconference. However, beginning June 29, 2021, public meetings conducted by video teleconference must utilize the provisions of KRS 61.826 as follows:

• Notice provisions must comply with the regular meeting or special meeting requirements, whichever is applicable; 
• The notice must state it is a video teleconference; 
• A primary location of the video teleconference where all members can be seen and heard and the public may attend pursuant to KRS 61.840 must be included in the notice; 
• All procedures for participation, distribution of materials, and other matters shall apply to all video teleconference locations; and 
• Should the broadcast audio or video be interrupted at any location at any time, the public agency shall suspend the meeting until the broadcast is restored.

KLC will continue to provide open records and open meetings guidance as it evolves. Please contact the Municipal Law Department at KLC with any questions about this or any other matter at (800) 876-4552.