Request By:
Kenneth F. Smart, Esq.
62 Public Square
Leitchfield, Kentucky 42754
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
Stuart McCloy, Esq., has appealed to the Attorney General pursuant to KRS 61.880 your partial denial of his request to inspect various documents in the custody of the Grayson County Board of Education.
In a letter to you, dated July 6, 1987, Mr. McCloy requested that he be provided with a copy of the minutes of the June school board meeting together with a sound recording of that meeting. He further stated that his request covered all recordings or minutes, whether open or closed, since his client "would have a right to her own records under KRS 61.884, and the lack of a specific exception under KRS 61.878(1)."
In his letter of appeal to this office, dated July 10, 1987, Mr. McCloy requested this office to review the denial of his request of July 6, 1987, with respect to documents pertaining to the school board's June meeting. He apparently had obtained a copy of the minutes of the regular session of the Board's meeting but did not obtain a copy of the sound recording from that meeting.
Your letter to Mr. McCloy of July 16, 1987, a copy of which was received by this office on July 17, 1987, advised him that his request of July 9, 1987, for the production of public documents has been granted except that a copy of the sound recording of the executive session of the school board's meeting will not be provided. In your opinion, the school board is not required to provide material relative to a discussion held during a bona fide executive session.
The undersigned Assistant Attorney General talked with you by telephone on the morning of July 21, 1987. You stated that your letter of July 16, 1987, to Mr. McCloy was in response to his oral request of July 9, 1987. You did not reply to his written request of July 6, 1987, although his oral request of July 9, 1987, was the same as or similar to his written request of July 6, 1987.
The open and the closed or executive sessions of the meeting in question were recorded, primarily to aid in the preparation of the minutes. Whatever minutes were prepared have been made available to the requesting party. While you state that you have offered to make available to the requesting party that portion of the tape pertaining to the open public session of the meeting, you have not made available that portion of the tape concerning the closed or executive portion of the meeting.
OPINION OF THE ATTORNEY GENERAL
At the outset your attention is directed to KRS 61.880(1) which provides in part that a public agency, upon a request for records made pursuant to the Open Records Act, shall respond in writing within three working days of the receipt of the request and advise whether it will comply with the request. An agency response denying inspection, in whole or in part, 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.
As the representative of the public agency, you did not strictly adhere to the provisions of KRS 61.880(1) in this situation. Compliance with those requirements is expected of the school board and the school system in the future.
KRS 61.835 states that the minutes of action taken at every meeting of a 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. Obviously the minutes of the public portion of a meeting are subject to public inspection and they have been made available in this particular situation.
This office has dealt with the minutes of a properly conducted executive or closed session on several occasions. We have said 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 matter of the closed session should be stated. The minutes need not, however, set forth information which would defeat the purpose of holding a closed session on an authorized subject matter. Thus, the minutes of a properly conducted executive or closed session of a meeting of a public agency need not be made available for public inspection if to do so would defeat the purpose of having conducted a closed session. See OAG 87-16, copy enclosed, at pages four and five and OAG 85-136, copy enclosed, at page five.
In OAG 79-333, copy enclosed, we dealt with a request for a transcript of a tape covering a portion of a meeting of a public agency. We stated in part as follows at page one of that opinion:
"The definition of 'public records' includes 'tapes. ' We believe, however, that written notes, shorthand notes or tape recordings made in a meeting for the purpose of preparing the minutes are only preliminary records and may therefore be withheld from public inspection. Actions taken by a public agency or board must be recorded in the minutes and the minutes will become official after they have been approved at the next meeting of the board. The board members, of course, can challenge the Secretary's draft of the minutes of the meeting and it is for the majority of the Board to decide whether to accept the draft and make it official, or order a revision."
We cited KRS 61.878(1)(g) in support of our position and concluded that the public is not entitled to inspect or copy a tape recording of the Board's meeting as such a tape constitutes a preliminary draft or preliminary notes.
In response to the requesting party's allegation that a person is entitled to records relating to himself, KRS 61.884 states that such a right is subject to the provisions of KRS 61.878. Thus, material which may be excluded from public inspection pursuant to KRS 61.878(1)(g) may be withheld from a person to whom it relates if it constitutes preliminary drafts and notes.
It is, therefore, the opinion of the Attorney General that the county board of education acted within the provisions of the Open Records Act when it refused to furnish the requesting party a copy of that portion of a tape recording of its meeting involving an executive or closed session as such a tape recording constitutes a preliminary draft and preliminary notes of such a proceeding.
As required by statute a copy of this opinion is being sent to the requesting party, Stuart McCloy, Esq., who has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5).