Request By:
James Hite Hays, Esq.
521 Main Street
P.O. Box 88
Shelbyville, Kentucky 40065
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
Sara L. Pratt, Esq., has appealed to the Attorney General pursuant to KRS 61.880 your denial of her request to inspect various documents.
In a letter to the Superintendent of the Shelby County School System, dated February 6, 1987, Ms. Pratt requested that her client, Mrs. Jackie Knotts, be permitted to inspect the following documents:
1) Any record held by the Shelby County Board of Education, its agents or employees, relating to the discipline administered to her son by Phyllis Smith in December of 1984 and, particularly, any record prepared by Ms. Smith or any witness to the administration of such discipline;
2) The minutes of the closed session of the Shelby County Board of Education at which Mrs. Knotts appeared in January of 1985 to discuss discipline administered to her son, including the date on which such minutes were prepared;
3) A copy of any final action taken by the Shelby County Board of Education, its agents or employees, with respect to the disciplining of her son or any other student by Phyllis Smith.
You replied to Ms. Pratt in a letter dated February 17, 1987, and denied her requests to inspect the documents she mentioned. You stated that the only records available for inspection by Mrs. Knotts are her child's student file located in the Board of Education's Office and in the East Middle School principal's office. Any records concerning the disciplining of Mrs. Knotts' son that are in the possession of the teacher or the principal of the Simpsonville School are their records and you cannot authorize Mrs. Knotts to see those records, if in fact such records exist.
You also said that no minutes were kept of the closed session at which Mrs. Knotts appeared in January of 1985. It was subsequently acknowledged that she did appear at the closed session of the school board concerning the disciplining of her son at the Simpsonville school.
In addition, you stated that the school board took no final action relative to Mrs. Knotts' request pertaining to a teacher's disciplining of her son. Thus, there are no final decisions of the school board for her to inspect concerning the matter in question.
OPINION OF THE ATTORNEY GENERAL
The school board and the school district are public agencies as the term is defined in KRS 61.870(1). Note also the definition of "public record" which appears in KRS 61.870(2):
"'Public record' means all books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings or other documentary materials regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency. 'Public record' shall not include any records owned by a private person or corporation that are not related to functions, activities, programs or operations funded by state or local authority;"
KRS 61.880(1) provides that each public agency, upon any request for records made under the Open Records Act, shall determine within three working days after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three day period of its decision. Furthermore, "An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. " Most of the exceptions to public inspection are set forth in KRS 61.878(1)(a) through (j).
In OAG 86-38, copy enclosed, at page three, we said in part as follows relative to a public agency's response to a request to inspect documents:
". . . As this office construes your obligations relative to a request to inspect documents, KRS 61.880(1) requires that you advise the requesting party as to the existence of the documents requested. If the documents exist and inspection is denied, you should list each document which the city will not permit the requesting party to inspect and state how the exception to public inspection relied upon applies to the particular document withheld from inspection. "
See also OAG 79-380, copy enclosed, at page two, where we said in part that if the requested records as described do exist, the public agency should either allow the requesting party to inspect them or it should set forth a statutory reason why those records are exempt from inspection.
Thus under the fact situation presented by this appeal not only was your written communication to the requesting party not sent within the statutorily prescribed time period but the contents of your letter were statutorily insufficient. You should have stated whether the requested records do in fact exist. If they do exist they would appear to be public records as they would have been prepared by public officials relative to an incident that occurred at a public facility during normal operating hours. When inspection of such documents is denied the public agency should state the statutory exception to public inspection upon which it is relying.
In regard to the minutes of a closed session of a public meeting and the public inspection of those minutes, KRS 61.835 provides, generally, that minutes of action taken at every meeting of a public agency shall be recorded and shall be open to public inspection. However, in OAG 85-136, copy enclosed, at page five, we referred, with approval to OAG 81-387 (copies of both opinions are enclosed) and said:
". . . In OAG 81-387 it was noted that the minutes of a public agency when a closed session is held should show that the formality set forth in KRS 61.815 was observed before going into the closed session and the general subject of the closed session (such as a personnel matter). The minutes need not, however, show information which would defeat the purpose of holding a closed session on an authorized subject matter."
It is, therefore, the opinion of the Attorney General that minutes of a properly conducted executive or closed session of a meeting of a public agency need not be made available for public inspection or even recorded to the extent that doing so would defeat the purpose of conducting the closed session.
The Open Records Act and the applicable case law, including
City of Louisville v. Courier-Journal, Etc., Ky.App., 637 S.W.2d 658 (1982), require that documents setting forth the final decision of a public agency be made available for public inspection. If, however, the public agency (the school board) took no final action with respect to the discipline administered by the teacher, then there is no report of final action to inspect and the request to inspect such a document is moot.
As required by statute a copy of this opinion is being sent to the requesting party, Sara L. Pratt, Esq. Since this opinion has reached conclusions in opposition to some of the positions and arguments set forth by each of the respective parties, either or both of the parties may challenge the findings and conclusions expressed herein in the appropriate circuit court pursuant to KRS 61.880(5).