Request By:
Norman R. Lemme, Esq.
Counsel for Bullitt County Board of Education
P.O. Box 770
Shepherdsville, Kentucky 40165
Opinion
Opinion By: FREDERIC J. COWAN, ATTORNEY GENERAL; Gerard R. Gerhard, Assistant Attorney General
By letter of October 26, 1989, Eric G. Farris, Esq., has appealed your October 24, 1989 denial, on behalf of the Bullitt County Board of Education, of his request for copies of cassette tapes of September and October (1989) meetings of the Bullitt County Board of Education.
KRS 61.880(2) provides, in part, for the Attorney General to, upon request of one denied inspection of public records, issue a written opinion stating whether an agency " . . . acted consistent with provisions of KRS 61.870 to 61.884."
FINDINGS IN BRIEF
While the Bullitt County Board of Education failed to act consistent with Open Records provisions in not citing a specific statutory exception upon which it based denial of inspection of tape recordings of its meetings, inspection of such recordings, which are "public records" within the meaning of KRS 61.870(2), could be denied on the ground the recordings are "preliminary drafts" regarding preparation of the official minutes. Inspection of "preliminary drafts" may be denied pursuant to KRS 61.878(1)(g).
FACTUAL BACKGROUND
Mr. Eric G. Farris, Esq., asked for copies of the cassette tapes of the proceedings of the September and October meetings of the Bullitt County Board of Education.
By letter of October 24, 1989, on behalf of the Bullitt County Board of Education, you advised Mr. Farris that his request "does not conform to KRS 61.872 and KRS 61.874."
You advised Mr. Farris further that:
[T]he denial of your request is not exclusively grounded in the technical requirements of the right to inspect and to make copies. The decision is based in no small measure on the nature of the 'records' that you seek. There currently exists a procedure where an attempt is made to tape the regular Board meetings. Whether or not the tapes would include the entire Board meetings is unknown as they are used only for the purpose of preparing the official minutes of the meetings in order to hopefully guarantee compliance with KRS 61.835. Once the minutes have been recorded and officially approved by the Board, there is no further need to preserve the integrity of these tapes and they may be recorded over, erased or otherwise disposed of.
Naturally you are entitled to secure a copy of the minutes of the meetings requested.
You advised Mr. Farris that in order to perhaps expedite matters, minutes of the September 14, 1989 meeting were being furnished and that minutes of the October 12, 1989 meeting would be furnished, once approved, if so desired.
You forwarded a copy of your response to this office.
Mr. Farris' appeal to this office followed.
OPINION OF THE ATTORNEY GENERAL
KRS 61.880(1) provides, in substance and in part, that a public agency, upon receiving a request to inspect public records, shall determine within three working days whether to comply with the request. The agency is to notify the requester, within that three day period, of its decision.
If an agency denies, in whole or in part, inspection of a record, its response must include a statement of the specific exception, among those set forth in KRS 61.878, authorizing withholding of the record, together with a brief explanation of how the exception applies to the record withheld.
A copy of the written response denying inspection is to be forwarded immediately by the agency to the Attorney General. KRS 61.880(2).
In the instant case it appears that there was an understanding, as between the requester and the agency, regarding the time within which a response was required to the request for records. Thus we believe it is unnecessary to address whether there was a response within the three days required by KRS 61.880(1).
The question is whether inspection of cassette tape recordings of certain meetings of the Bullitt County Board of Education can be properly denied under Open Records provisions.
While indicating you were of the opinion Mr. Farris' request did not "conform to KRS 61.872 and 61.874," presumably meaning the request was not to inspect a public record, you indicated, in substance and in part, that the tapes in question were made to assist in preparation of the official minutes of the Board, and that it is unknown whether the tapes cover an entire meeting.
We believe the tapes in question, even if not complete, and although only made to assist in preparation of official minutes, are "public records" within the meaning of KRS 61.870(2).
However, we believe the tapes in question, given the remarks in your letter of October 24, 1989 to Mr. Farris, are of the nature of "preliminary drafts," within the meaning of KRS 61.878(1)(g), incident to preparation of official minutes of the Bullitt County Board of Education. Thus, inspection (review or copying) of the tapes in question may be denied upon such ground. See OAG's 79-333, 87-44, and 88-32, copies attached.
You did not follow the requirements of KRS 61.880 in denying, on behalf of the Bullitt County Board of Education, a request to inspect public records. Your response made no mention of a specific exception from among those in KRS 61.878 relied upon in connection with the denial involved. Accordingly, the Bullitt County Board of Education failed to act consistent with the provisions of KRS 61.870 to 61.884.
Should you deny inspection of public records in the future, we trust the requirements of KRS 61.880 will be followed.
Eric G. Farris, Esq., and the Bullitt County Board of Education, may have a right pursuant to KRS 61.880(5), to appeal the findings of this opinion.
As required by statute, a copy of this opinion is being sent to Eric G. Farris, Esq.