From Kentucky A.G. opinion 26-01, released Jan. 5 but just posted on Westlaw:
The “basic policy” of the Open Meetings Act … “is that the formation of public policy is public business and shall not be conducted in secret and the exceptions provided for by KRS 61.810 or otherwise provided for by law shall be strictly construed.” Under KRS 61.840, “[n]o condition other than those required for the maintenance of order shall apply to the attendance of any member of the public at any meeting of a public agency” and “[a]ll agencies shall permit news media coverage, including but not limited to recording and broadcasting.”
The Office has previously found that “KRS 61.840 vests members of the public with a virtually unconditional right to attend all meetings of a public agency.” Indeed, the only conditions of attendance permitted by the Act are “those required for the maintenance of order.”
Regarding the recording of public meetings, the Office has found that public agencies that did not allow members of the public to record their meetings violated KRS 61.840…. For the purpose of KRS 61.840, there is little difference between recording a meeting on a cellphone and live-streaming a meeting on a cellphone. Indeed, KRS 61.840 also requires the “broadcasting” of public meetings to be permitted.
Though KRS 61.840 specifically requires agencies to permit “news media coverage, including but not limited to recording and broadcasting.” that requirement does not place the news media in a position superior to that of the common citizen. Rather, it is simply illustrative of what it means for public agencies’ meetings to be open to the public and that any exceptions to this general rule be “strictly construed” under KRS 61.800. Thus, the Office has previously found that KRS 61.840’s grant of recording authority extends to members of the public. In light of the current state of technology and the ubiquity of persons live-streaming content using their cell phones, the live-streaming of a public meeting with a cellphone is but a modern example of “recording and broadcasting” public meetings that is protected by KRS 61.840.
[Senator Gex Williams, who posed the question that led to the opinion,] limits his inquiry only to members of the public who are “non-intrusive and non-disruptive.” No conditions are necessary for the “maintenance of order” if the live-streaming member of the public is “non-intrusive and non-disruptive.” As such, a public agency may not prevent a “non-intrusive and non-disruptive” member of the public from live-streaming meetings of public agencies. It is therefore the opinion of the Office that the Act does not allow a public agency to prevent a “non-intrusive and non-disruptive” member of the public from live-streaming its meetings.
{Senator Williams also asks whether KRS 61.840’s mandate that public agencies “shall permit news media coverage” violates the First Amendment by not expressly granting the same right to all members of the public. Because it is the opinion of the Office that KRS 61.840 does not allow a public agency to prevent a “non-intrusive and non-disruptive” member of the public from live-streaming its public meetings, KRS 61.840 does not treat the news media differently from members of the public.}
