Table of Contents
Kentucky's open meetings and open records laws — enacted in the 1970s and last comprehensively revised in the early 1990s — have served as essential tools for ensuring government transparency and accountability, anchored in the legislative declaration that "the formation of public policy is public business and shall not be conducted in secret." Yet more than two decades of litigation, technological transformation, and evolving agency practice have exposed serious deficiencies that undermine the laws' effectiveness. Ambiguous definitions of "public agency," loopholes permitting serial less-than-quorum meetings, conflicting exemptions between the two statutes, an exception in KRS 61.815(2) that nearly swallows the rule requiring proper notice before closed sessions, anachronistic references to obsolete formats like ASCII, and uncertainty over whether public business conducted on private devices and accounts constitutes a public record all combine to invite agency exploitation and unnecessary litigation. This report, authored by former Assistant Attorney General Amye Bensenhaver, proposes a comprehensive legislative revision focused not on weakening the laws but on clarifying, reconciling, and modernizing them — guided throughout by the General Assembly's longstanding presumption in favor of openness.
Key Takeaways:
The statutes contain critical ambiguities that agencies routinely exploit. The 2012 amendment to KRS 61.870(1)(h) muddied the definition of which privately operated, publicly funded entities qualify as "public agencies," enabling contractors that derive nearly all their revenue from public funds to disclaim public-agency status. Likewise, the 1992 prohibition on serial less-than-quorum meetings is undermined by a required showing of intent and a broad "education" exception that public bodies — including the University of Kentucky Board of Trustees — have invoked to justify private discussion of major public business such as the university budget.
Internal conflicts in the laws produce absurd and inequitable results. Records lawfully withheld under an open records exemption (proposed budgets, performance evaluations, licensure exam questions) often have no corresponding open meetings exemption, forcing agencies to publicly discuss documents they may withhold. Meanwhile, KRS 61.815(2) creates an exception that effectively excuses agencies from the notice requirements of KRS 61.815(1) for 12 of 13 closed-session categories, and the open meetings law — unlike the open records law — fails to place the burden of proof on the public agency, leaving complainants to prove facts known only to the officials they are challenging.
The laws are stuck in the analog era. Built around ASCII as the standard electronic format, lacking meaningful provisions for email, smartphones, video conferencing platforms, and social media, and silent on whether public business conducted on private devices generates public records, the statutes fail to reflect the realities of 21st-century governance. Combined with weak penalties ($25 per day for willful records withholding; $100 per incident for open meetings violations, unchanged since the 1970s) and a training requirement that verifies only distribution of materials rather than actual comprehension, the laws too often yield to evasion rather than ensure compliance.
Conclusion:
Kentucky's sunshine laws remain among the nation's most robust statements of the principle that government belongs to the governed — but principles unsupported by precise, modern, and enforceable statutory language will continue to be eroded by the agencies they are meant to constrain.
The General Assembly should undertake a comprehensive revision aimed at preservation through repair, beginning with several concrete reforms. Lawmakers should reconsider the 2012 amendments to KRS 61.870(1)(h), clarify the 25-percent funding threshold, and empower the attorney general to compel financial substantiation from entities disputing public-agency status. They should reformulate KRS 61.810(2) to close the intent and education loopholes that enable rolling-quorum evasion, and they should repeal KRS 61.815(2) outright to restore the integrity of the notice requirements governing closed sessions. The two statutes should be reconciled where they conflict — either by harmonizing exemptions or, where confidentiality is genuinely warranted, by adopting paired open meetings and open records exemptions of the kind enacted in 2005 for homeland-security records.
The burden of proof should be placed squarely on public agencies in open meetings disputes, as it already is in open records cases. The definition of "public record" in KRS 61.870(2) should be amended to make explicit that communications about public business on privately owned devices and accounts are public records subject to retention and disclosure. The laws' references to ASCII, fax transmission, and other dated technologies should be modernized, and requesters should be permitted to use their own scanning devices where doing so will not damage records. Penalties for willful violations should be meaningfully increased; prevailing complainants whose victories before the attorney general are then appealed by agencies to circuit court should be made whole through mandatory attorneys' fees and costs.
Finally, training should be extended to all state and local officials and implemented through a mandatory online module with an assessment component certifying actual comprehension — with penalties for noncompliance. Taken together, these reforms would honor rather than dilute the General Assembly's foundational commitment to open, transparent, and accountable government, ensuring that Kentucky's sunshine laws can do in the 21st century what they were designed to do in the 20th: keep the public's business in public view.
