ATTENTION CITY ATTORNEYS AND OFFICIALS:
The KLC Legal Team has compiled summaries of all of the Kentucky Attorney General Opinions, including Open Records and Open Meetings, for the first quarter of the year.
As always, we are striving to provide the most timely and helpful legal information for our cities.
Please see this link for the current summary.
KLC Files Amicus Curiae Brief in Important KY Supreme Court Case on Open Meetings
KLC recently filed an amicus curiae (“friend of the court”) brief in a case before the Kentucky Supreme Court which will examine what a city is allowed to do during a closed session to discuss future acquisition of real property.
In Board of Commissioners of the City of Danville v. Advocate Communications d/b/a the Advocate-Messenger, 2016 WL 1739310, the Kentucky Court of Appeals held that the city had violated the Open Meetings Act by reaching a consensus in closed session regarding bidding on a property for sale at an upcoming public auction and supporting the use of a bidding agent. The Court held the deliberations consisted of “final action” under the Open Meetings Act that should have been voted upon in open session.
The exception utilized by the city to go into closed session, KRS 61.810(1)(b), allows “deliberations on the future acquisition… of real property” when public discussion would “be likely to affect the value” of the property. One of the statutory limitations on this exception is that no “final action” can be taken in closed session. KRS 61.815.
In its brief, KLC first pointed out that the Court of Appeals had confused final action, which is prohibited in closed session, with other types of action, some of which are permitted. KLC urged the Supreme Court to recognize that an analysis of whether action taken in closed session is legal depends on the nature of the public agency involved. Cities operate differently from other public agencies, and even differently from each other depending on their form of government.
In this case, the city operates under the city manager plan, and the laws governing the plan place significant executive and administrative authority in the city manager, including budget administration. The city had already appropriated the funds to purchase the property in the budget ordinance. KLC argued that the board of commissioners could voice its support for the bidding strategy to be used without coming into open session to take formal action, because the city manager was authorized through his statutory powers and the budget ordinance to take action whether or not the closed session occurred. If the city had wanted to reverse course on the purchase, it could have taken final action in open session by amending the budget ordinance to reflect a different purchase price, or otherwise directing the city manager to act in a manner different from that authorized. Since they were merely in agreement with the bidding strategy, and since the strategy fit within the city manager’s authority, there was no need to take final action.
KLC participated in this case through its Legal Advocacy Program, which represents the collective legal interests of KLC’s member cities in the courts throughout the Commonwealth. In the past few years, KLC has participated or assisted in many important victories for cities regarding 911 fees, annexation, legislative prayer, open records exemptions, and many other issues.
We will continue to provide updates on this case as it progresses through the Supreme Court.
To read KLC’s amicus brief, go here. http://www.klc.org/UserFiles/files/DanvilleOpenRecordsBrief.pdf?
For more information on the Program or this case, contact Laura Ross, Managing Legal Services Counsel, at 800-876-4552.
Employee Applications and Open Records Law
Our cities are presented every day with requests under the Kentucky Open Records Act (KRS 61.870 to 61.884). But just like fashion, the types of requests our cities receive seem to go in and out of style.
The KLC Legal Team noticed recently that there was a large uptick in open records requests pertaining to police officer employment applications. We thought this would be a good time for a quick review on city employee applications, as a whole, and how police officer applications slightly differ under the Kentucky Open Records Act and KRS 15.400.
As an initial step, it is wise to remember that there is a statutory exemption for public records containing information of a personal nature where public disclosure would constitute a clearly unwarranted invasion of privacy. KRS 61.878(1)(a).
So what type of information is of a personal nature when it comes to a city employee's employment application?
In 1993, the Kentucky Attorney General issued an opinion regarding a citizen's request for, among other information, the employment applications and salary history for all city employees.
The Attorney General found the employment applications and salary records to be public records that must be made available for inspection upon request, but held that information “of a purely personal character, including the employee’s home address, social security number, marital status, and medical information” could be redacted. The AG reasoned that “the public has a right to know about that which is related to the governmental employee’s public and work related activities,” including name, position, work station and salary. 93-ORD-2.
It is worth noting that the information of a purely personal character in 93-ORD-2 is NOT exhaustive. State law, court opinions, and other Attorney General opinions often identify other personal information that is exempt from disclosure. Specifically regarding the privacy interests of peace officers, KRS 15.400(3) states, "[t]he Open Records Act notwithstanding, the person's home address, telephone number, date of birth, Social Security number, background investigation, medical examination, psychological examination, and polygraph examination conducted for any person seeking certification pursuant to KRS 15.380 to 15.404 shall not be subject to disclosure."
So in responding to an open records request for a police officer's employment application, it is paramount for the city official responding to keep these exempt items of personal information in mind for redaction purposes. The city, as with any open records request, should also explore if any of the other statutory exemptions allowable under KRS 61.878(1) may also apply.
As always, if you have any questions on this or any other open records requests, please contact the KLC Legal Team at 800.876.4552.
Kentucky Supreme Court Rules for City in Important Open Records Act Decision
Posted January 2, 2014
The Kentucky Supreme Court recently rendered its decision in Kentucky New Era, Inc. v. City of Hopkinsville, providing important guidance for cities regarding city redaction policies and the extent of the privacy exemption under the Kentucky Open Records Act.
The Court held:
“[The Open Records Act] includes an express exemption for agency records the disclosure of which would amount to a clearly unwarranted invasion of personal privacy. The City of Hopkinsville has justly concluded that the public disclosure of the social security numbers, the driver's license numbers, the home addresses, and the phone numbers of victims, witnesses, and uncharged suspects appearing in its police department's arrest and incident reports, as well as all references to juveniles, would constitute, in the vast majority of cases, a clearly unwarranted invasion of those persons' privacy. Its policy of redacting that information before disclosing the reports is in accordance with the Act.”
The decision stems from a request made from the Kentucky New Era newspaper to the City of Hopkinsville in 2009, asking for police records regarding certain crimes. The New Era challenged the city’s decision to withhold records involving juveniles, and redact from other records personal data of victims, witnesses and suspects.
First finding that persons have privacy interests in their addresses, phone numbers, social security numbers and driver’s license numbers, the Court then analyzed whether the invasion of these privacy interests was unwarranted, as required by the Open Records Act to invoke the privacy exception. To make this determination, the Court weighed the privacy interests against the public’s interest in disclosure, and determined that the “public interest in monitoring the police department clearly does not extend” to providing the personal data listed above, absent a substantial reason to believe the redacted information could shed meaningful light on how well the police department was performing its duties to the public.
The Court also found a heightened privacy interest for juvenile victims and witnesses, as well as perpetrators, that justified withholding of the names of juveniles in addition to the other personal data.
The New Era also challenged the city’s redaction of certain categories of information – here, personal data of private citizens in police records – as a matter of policy. The Court distinguished a “categorical redaction policy” from a “blanket redaction policy,” upholding the city’s determination that, with respect to a particular, recurring class of information, it is appropriate to categorically withhold information in that class when the privacy/ public-interest balancing characteristically tips in the direction of privacy.
The Kentucky Supreme Court’s decision is extremely important to all Kentucky cities, because it sets a legal precedent supporting cities’ decisions to similarly withhold or redact records in response to open records requests.
The Kentucky League of Cities provided legal assistance to the City of Hopkinsville at no charge as a part of the KLC Legal Advocacy Program, which represents the collective legal interests of member cities throughout the Commonwealth. If you have any questions regarding this ruling, Open Records Act exemptions or other legal issues, please contact KLC’s legal department at 1-800-876-455
The KLC Legal Team is compiling quarterly updates of the Kentucky Attorney General Opinions, as well as Open Record and Open Meeting Opinions
Office of the Attorney General (OAG) Quarterly Summary from KLC
As an additional service to members, KLC Member Legal Services attorney Chris Johnson has summarized recent Kentucky Attorney General opinions that are relevant to cities.
For specific questions or more information, contact the KLC Member Legal Services team at 800.876.4552.