On January 27, the Utah Standard-Examiner reported that the prospects for a bill authorizing public agency officials to conduct closed session discussions for the purpose of receiving legal advice from agency counsel are in doubt.
The Utah Media Coalition has vigorously opposed the bill, declaring that “such an exception is unnecessary and would be an invitation to abuse and closure of many public meetings [since n]early any meeting could be closed to receive ‘legal advice’ on almost any subject.”
Utah’s law currently permits closed “strategy sessions to discuss pending or reasonably imminent litigation.” Like Utah, Kentucky has a “litigation exception” to its open meetings law.
Amye Bensenhaver
Virtually anyone who has attended a public agency meeting in Kentucky has been excluded from a portion of the meeting while the agency conducts a closed session to discuss “litigation.” The exception to the open meetings law that permits these closed sessions is narrowly tailored to ensure that they are restricted to “[d[iscussions of proposed or pending litigation against or on behalf of the public agency.”
Thus, it is well-settled in Kentucky that the open meetings law does not permit public agencies to conduct closed sessions for the purpose of receiving legal advice on matters that are not directly related to proposed or pending litigation.
As interpreted most recently by Kentucky’s courts in 2013, the litigation exception—KRS 61.810(1)(c)—”covers discussions of strategy, tactics, possible settlement and other matters pertaining to the case. Though the exception may be invoked when litigation is not currently pending but is only threatened or proposed, it does not apply ‘any time the public agency has its attorney present’ or where the possibility of litigation is remote or unsubstantiated. The threat or proposition of litigation must be substantial to trigger the exception. There must be a direct suggestion of litigation conditioned on the occurrence or nonoccurrence of a specific event.”
Departing from a longstanding policy disfavoring advisory opinions on open meetings matters, in 1997 the Kentucky Attorney General issued an advisory opinion in which he concluded that Kentucky’s open meetings law “does not contain this ‘legal advice’ exception,” and recognized that his office was “not empowered to create one by fiat.” The attorney general attached particular significance to the fact that the legislature “did, in fact, provide for confidential attorney communications in the context of proposed or pending litigation, but did not expand the exception to non-litigation related legal advice.”
Later that year, the Kentucky Supreme Court confirmed the attorney general’s opinion in a landmark case narrowly construing the two most frequently used and abused exceptions to the open meetings law, the “litigation” and “personnel” exceptions. The Court’s analysis proceeded from the recognition that “the exceptions to the open meetings laws are not to be used to shield the agency from unwanted or unpleasant public input, interference or scrutiny,” and that the courts must therefore “construe and apply the exceptions so as to avoid improper or unauthorized closed, executive or secret meetings.”
Closed session discussions of matters “tangential to” proposed or pending litigation between public agency members and agency counsel violate the fundamental mandate of the open meetings law requiring that “all meetings of a quorum of the members of any public agency at which any public business is discussed or at which any action is taken by the agency, shall be public meetings, open to the public at all times.” Any illegal extension of the “litigation” exception to authorize a closed session to receive legal advice on non-litigation matters is, to quote the Utah Media Coalition, “an invitation to abuse.”
Moreover, simply declaring that the agency is going into closed session to discuss litigation does not satisfy the statute.
To enable the public to assess the propriety of the agency’s reliance on the litigation exception to conduct a closed session, the open meetings law states that before entering closed session, the agency must give notice “in regular open meeting of the general nature of the business to be discussed in closed session, the reason for the closed session, and the specific provision [exception] of KRS 61.810 authorizing the closed session.”
The agency must, for example, make a motion in open session to “go into closed session pursuant to KRS 61.810(1)(c) to discuss pending litigation against [ABC Corporation] in order to consider an offer of settlement” or to “go into closed session pursuant to KRS 61.810(1)(c) to discuss threatened litigation by [XYZ Corporation] in order to protect its legal strategy.”
Even where a public agency properly relies on the litigation exception, its failure to strictly comply with these statutory requirements exposes the agency to a potentially successful legal challenge. But a legal challenge based on an agency’s misplaced reliance on the exception for the purpose of receiving legal advice from agency counsel on non-litigation matters is certain to be resolved against the agency.
Amye Bensenhaver spent 25 years as an assistant attorney general in Frankfort and is an expert on open records and open meetings. Now out of state government, she writes about these issues. She has written more than 2000 legal opinions related to the state’s open records and open meetings laws. If you have questions or comments about Kentucky’s open records laws, please email Ms. Bensenhaver at missbhaver@gmail.com. She is a regular contributor to the University of Kentucky School of Journalism and Media Scripps Howard First Amendment Center Open Government Blog.
