Request By:
Mr. Martin W. Johnson
Lovett, Johnson & Shapiro
John Lovett Building
Benton, Kentucky 42025
Opinion
Opinion By: Steven L. Beshear, Attorney General; Carl Miller, Assistant Attorney General
You have requested an opinion of the Attorney General on the Kentucky Open Meetings Law and other statutes. Your question is whether a school board, when it goes into a properly held closed session permitted by KRS 61.810, is required to have minutes taken of the closed session and is required to make the minutes available for public inspection. You point out that the answer to the question must be reconciled with KRS 160.270(2) which reads as follows:
"The secretary shall be present at the meetings of the board except when his own tenure, salary or the administration of his office is under consideration and shall record in a book provided for that purpose all its official proceedings, which shall be a public record open to public inspection. "
Your question also involves KRS 61.835 which provides:
"The minutes of action taken at every meeting of any such public agency, setting forth an accurate record of votes and actions at such meetings, shall be promptly recorded and such records shall be open to public inspection at reasonable times no later than immediately following the next meeting of the body."
We have not heretofore addressed your question in a formal opinion.
To answer the question you present it is necessary to consider not only the statutes quoted above but also the legislative purpose of KRS 61.810 which allows a public agency to go into closed session on five subject matter exceptions. For example, a closed session is permitted for discussions or hearings which might lead to the appointment, discipline or dismissal of an individual employee, member or student, "provided that this exception is designed to protect the reputation of individual persons and shall not be interpreted to permit discussions of general personnel matters in secret." We believe that it would contradict common sense and proper statutory interpretation to say that an agency could conduct a closed session on a personnel matter to protect the reputation of the person under discussion and then require that minutes be taken in the closed session and be made available to public inspection. We, therefore, conclude that when a closed session is held as authorized by statute, minutes of the closed session should be made but the board, in its discretion, may require the minutes to be sealed and withheld from public inspection. Such minutes will not be part of the regular minutes of the meeting required by KRS 160.270(2) which says that the secretary "shall record in a book provided for that purpose all its official proceedings."
Another subject which is allowed to be discussed in a closed session is litigation. In OAG 78-227, we said the provisions of KRS 61.815 do not apply when an agency's litigation is discussed and a final vote could be taken in closed session; that the minutes of the closed session should be made available to the public as soon as practicable and when the revealing of the minutes would not defeat the purpose for holding a closed session.
In summary, we think that the minutes of a closed session should be handled as follows:
(1) The secretary should be in the closed session, make notes and prepare minutes of decisions made and actions taken by the board.
(2) The minutes of the closed session should be kept separate from the minutes of the open meetings.
(3) Before the minutes of the closed session are made available to public inspection the board should decide whether, for the purposes of protecting reputations or for practical business reasons covered by the exceptions in KRS 61.810, the minutes should be kept confidential.
(4) If there is a statutory reason for keeping the minutes confidential, the minutes should be sealed and marked "Confidential" and kept in the records of the board apart from the regular minutes. The regular minutes should indicate when a closed session was held and the general purpose of the closed session.
We believe that this procedure will conform to the spirit and the letter of the Open Meetings Law, the Open Records Law and the General School Law. (KRS 160.270). Each board member is charged with the responsibility of seeing that the Open Meetings Law is properly observed when the board is in closed session regardless of what the majority of the board should decide to do. (KRS 61.991).