Request By:
Honorable Kimberly K. Greene
Wyatt, Tarrant & Combs
Citizens Plaza
Louisville, Kentucky 40202
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Cicely D. Jaracz, Assistant Attorney General
This office is in receipt of your request for an opinion under the Open Meetings Law, KRS 61.805 et seq. , with regard to a meeting of the City of Barbourmeade City Council held July 30, 1984.
You state that at the close of the July 30, 1984 Council meeting Councilman Nick Belker announced a closed session. No motion was made or carried for the closed session. Mr. Belker responded to a reporter's question as to the purpose of the closed session by indicating that the Council would discuss burglary charges pending against certain Barbourmeade teenage residents, as well as discuss the public belief that these and other teenagers had conducted cult rituals in Barbourmeade. Mr. Belker stated that the Open Meetings Law permitted closed sessions to discuss "juveniles. "
You wrote to Mr. J. Michael Donovan, Mayor of Barbourmeade, expressing concern that the closed session held during the July 30, 1984 City Council meeting was in violation of the Open Meetings Law. Mr. John A. McCrea, attorney, responded to your letter insisting that the closed session was proper. First, Mr. McCrea indicated that no public business was discussed at the closed session, and further no action was taken by the Council. Second, Mr. McCrea relied on KRS 61.810(3) and (4) as authorizing the closed sessions. Finally, Mr. McCrea contended that KRS 208A.080, which deals with juvenile court records, authorized the closed session.
It is the opinion of this office that the Barbourmeade City Council improperly held a closed session on July 30, 1984 in contravention of the Open Meetings Law, KRS 61.805 et seq.
First, the Barbourmeade City Council is a public agency as defined by KRS 61.805(2) and is thus subject to the Open Meetings Law.
Second, the July 30, 1984 meeting was a regular Council meeting. The closed session was held at the close of or following the regular meeting. The closed session is still, however, a meeting under the Open Meetings Law as it falls under the definition in KRS 61.805(1):
. . . All gatherings of every kind, regardless of where the meeting is held, and whether regular or special and informational or casual gatherings held in anticipation of or in conjunction with a regular or special meeting.
There appears to be no doubt that the closed session herein was held in conjunction with a regular meeting.
Third, since the closed session constituted a "meeting" in accordance with KRS 61.805(1), the next step is whether the meeting was attended by a quorum at which public business was discussed or action taken, thus requiring it to be open to the public. KRS 61.810. Apparently there is no dispute that a quorum was present and that no action was taken. The dispute lies in whether public business was discussed. Mr. McCrea asserts that no public business was discussed, but stated in his letter to you that the meeting was properly closed as it fell within KRS 61.810(3) [discussions of proposed or pending litigation against or on behalf of the City Council] and 61.810 (4) [grand and petit jury sessions] . If Mr. McCrea relies on KRS 61.810(3) and (4), then he apparently is of the belief that some public business was discussed at the closed session. The meeting is therefore mandated to be open to the public unless one of the KRS 61.810 exemptions applies.
Fourth, the next question is whether any of the KRS 61.810 exemptions apply to properly close the session. Mr. McCrea indicated in his response to you that the closed session involved a juvenile and that juvenile's police records. You contend that Mr. Belker told the reporter that the purpose was to discuss burglary charges pending against teenage residents and the public belief that these and other teenagers were involved in cult rituals. KRS 61.810 provides for closed sessions only for the enumerated purposes. The above purpose is not enumerated in KRS 61.810. It is therefore an improper purpose for which to close a public meeting.
Mr. McCrea's reliance on KRS 61.810(3) and (4) also appears misplaced. KRS 61.810(4) closes grand and petit jury sessions, which are obviously inapplicable herein. KRS 61.810(3) closes discussions of proposed or pending litigation against or on behalf of the public agency. However, there is no mention in Mr. McCrea's letter or your letter of any "proposed or pending litigation. " Indeed, Mr. McCrea admits that discussion in the closed session regarded a juvenile and police records. Therefore, KRS 61.810(3) is also an inapplicable exemption.
Finally, Mr. McCrea argued that the closed session was proper pursuant to KRS 208A.080(3) which provides that police records of children less than 18 years old shall not be open to the public. This statute is inapplicable for several reasons. First, KRS Chapter 208A, scheduled to become effective July 15, 1984, was repealed by the 1984 General Assembly. However, KRS 208.340(2), which is still in effect, provides the same mandate as KRS 208A.080(3) [repealed] . Second, KRS 208.340(2) is not applicable herein because the release of juvenile police records to public scrutiny is not at issue. If the City Council was in possession of such records, KRS 208.340(2) obviously excludes public inspection. However, the Open Meetings Law does not enumerate discussion of such records or discussion of juveniles as the proper subject matter of a closed session.
It is therefore our opinion that the closed session held by the Barbourmeade City Council on July 30, 1984 was in contravention of the Open Meetings Law. Mr. McCrea admitted that the discussion pertained to "a juvenile" and presumably the pending burglary charges against local juveniles as related at the meeting by Mr. Belker. KRS 61.810(3) and (4) do not authorize a closed session for this discussion as the Council is not a "grand or petit jury" and was not discussing "proposed or pending litigation" against or on behalf of the Council. KRS 208A.080 and 208.340 are also inapplicable because the question did not concern access to juvenile records but access to a discussion of public business by a public agency.
A copy of this opinion is being sent to Mr. McCrea for his information.