Request By:
IN RE: Sally Wasielewski/Cabinet for Workforce Development
Opinion
Opinion By: Chris Gorman, Attorney General; Amye B. Majors, Assistant Attorney General
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the Cabinet for Workforce Development's partial denial of Ms. Sally Wasielewski's August 4, 1992, request to inspect a number of documents in the Cabinet's possession. Those documents relate generally to the recommended elimination of programs at Harlan State Vocational Technical School by a ten member Program Assessment Review Committee, and are grouped into five categories.
On behalf of the Cabinet, Commissioner Gary Werenskjold released the records identified in categories one, three, four and five of Ms. Wasielewski's request. However, Commissioner Werenskjold denied her request for "[m]inutes of all meetings at which the closure(s) . . . [were] discussed or at which action, whether final or not final, was taken." He explained that no records exist which conform to this request.
In a letter dated August 13, 1992, Ms. Wasielewski requested clarification of the Cabinet's position. She expressed the view that the Program Review Assessment Committee, which recommended elimination of two programs, is a "public agency, " as defined in KRS 61.805(2)(f) and (g), and that its actions or decisions should therefore be made at a public meeting, the minutes of which are promptly recorded pursuant to KRS 61.835. She asked that the Cabinet review the situation to determine whether the committee met as a group, or in groups of less than a quorum, concerning program elimination, and whether any records were made of those meetings. Additionally, she asked Commissioner Werenskjold to cite the exemption authorizing nondisclosure if the Cabinet deemed these records exempt.
Responding to Ms. Wasielewski's letter, Ms. Beverly H. Haverstock, General Counsel for the Cabinet, confirmed Commissioner Werenskjold's view stating:
It is our position that a local advisory committee appointed by the regional director in Harlan, Kentucky, does not constitute a public agency under KRS 61.805. Therefore, KRS 61.835 is not applicable.
She did not, however, elaborate on this view.
In her letter of appeal to this Office, Ms. Wasielewski argues that the Program Review Assessment Committee, which was appointed by the Workforce Development Cabinet's Technical Education Regional Director, is a "public agency" under KRS 61.870(1)(j), and that its records are "public records. " She also contends that because the committee is a public agency under KRS 61.805(2)(f) and (g), its recommendations relative to Harlan State Vocational Technical School should have been made at a public meeting by official action. Ms. Wasielewski explains that program assessment is the responsibility of the Commissioner of the Cabinet. He acts on the recommendation of the Regional Executive Director who makes his assessment with the assistance of a regional advisory committee, whose members the Director appoints.
This appeal presents issues which implicate both the Open Records and the Open Meetings Act. We are asked to determine if the Program Review Assessment Committee, appointed by the Regional Director of the Cabinet for Workforce Development, is a "public agency" for purposes of the Open Records Act, and its records, including the minutes of its meetings, are "public records" which must be made available for public inspection. In view of the clear language of KRS 61.805(2)(g), and KRS 61.870(1)(j), we conclude that the Assessment Committee is a public agency and is subject to the provisions of the Open Meetings and Open Records Act.
KRS 61.805(2)(g) defines a public agency for purposes of the Open Meetings Act as:
Any board, commission, committee, subcommittee, ad hoc committee, advisory committee, council, or agency, except for a committee of a hospital medical staff or a committee formed for the purpose of evaluating the qualifications of public agency employees, established, created, and controlled by a 'public agency' as defined in paragraph (a), (b), (c), (d), (e), (f), or (h) of this subsection[.]
In very similar language, KRS 61.870(1)(j) defines a public agency for purposes of the Open Records Act as:
Any board, commission, committee, subcommittee, ad hoc committee, advisory committee, council, or agency, except for a committee of a hospital medical staff, established, created, and controlled by a public agency as defined in paragraph (a), (b), (c), (d), (e), (f), (g), (h), (i), or (k) of this subsection[.]
These expansive definitions were among the sweeping changes wrought by the 1992 General Assembly in the area of Open Records and Open Meetings. They are consistent with the rules announced by the
Kentucky Supreme Court in Lexington Herald-Leader Co. v. University of Kentucky Presidential Search Committee, Ky., 732 S.W.2d 884 (1987) and Frankfort Publishing Co., Inc. v. Kentucky State University Foundation, Inc., Ky., 39 KLS 7, p.23 (6/25/92), finality endorsement issued 9/24/92. In Presidential Search Committee, supra, the Court reversed the decision of the lower court, which had held that the Presidential Search Committee was not subject to the Open Meetings Act because it had only advisory powers and was not a legislatively created body, and ruled that the Committee was a public agency for purposes of the Open Meetings Act. The Court concluded:
It is the opinion of this court that the statute in question, perhaps inartfully drawn, means that a public agency is any agency which is created by statute, executive order, local ordinance or resolution or other legislative act, or any committee, ad hoc committee, subagency or advisory body of said public agency. The Board of Trustees of the University of Kentucky is created by statute -- viz., KRS 164.130, et seq. -- so that the Presidential Search Committee, which was created, in turn, by formal action of the Board of Trustees, is a public agency and therefore subject to the provisions of KRS 61.805, et seq. Any other holding would clearly thwart the intent of the law.
Presidential Search Committee, supra, at 806.
In Kentucky State University Foundation, supra, the Court extended this reasoning to the Open Records Act, holding:
An interpretation of KRS 61.870(1), which does not include the Foundation as a public agency, is clearly inconsistent with the natural and harmonious reading of KRS 61.870 considering the overall purpose of the Kentucky Open Records law. The obvious purpose of the Open Records law is to make available for public inspection, all records in the custody of public agencies by whatever label they have at the moment. Statutes are to be interpreted with a view to promote their objects and to carry out the intent of the legislature. KRS 446.080. Cf.
Lexington Herald Leader v. University of Kentucky, Ky., 732 S.W.2d 884 (1987) which dealt with the Open Meetings Act but reflects the legislative intent embodied in similar laws and noted that the clear intent of the law was that the public be informed.
Kentucky State University Foundation, supra, at 24. In enacting KRS 61.805(2)(g) and KRS 61.870(1)(j), the General Assembly laid to rest any lingering confusion about the broad scope of these laws.
Prior to amendment of the Open Meetings and Open Records Acts, this Office had adopted the reasoning of the Kentucky Supreme Court in Presidential Search Committee, supra. In OAG 89-25, we held that a committee of citizens appointed by the superintendent of a board of education, on his own initiative and without formal direction of the Board, to advise him on redistricting school boundaries, was a public agency and therefore subject to the Open Meetings Act. Similarly, in OAG 91-54, we held that a committee appointed by a county judge/executive to advise on planning and zoning matters was a public agency. We reasoned:
A fiscal court is clearly a public agency, as defined by KRS 61.805(2), OAG 75-280, and the committee or advisory body created by it or by order of the County Judge/Executive, is a public agency subject to the provisions of KRS 61.805, et seq. OAG 89-25 (modifying OAG 78-571).
See also, OAG 92-32 (holding that a telecommunications committee created by a fiscal court was a public agency under the rule announced in Presidential Search Committee, supra). We believe that these OAG's, along with the cited court decisions, are dispositive of the present appeal.
The Cabinet for Workforce Development is created by KRS 151B.020, and the Department for Adult and Technical Education by KRS 151B.025. Hence, these entities fall within the definition of a "public agency" set forth at KRS 61.870(1)(f), for Open Records purposes, and KRS 61.805(2)(d), for Open Meetings purposes. The Program Review Assessment Committee, which was created, in turn, by the Cabinet for Workforce Development Technical Education Regional Director, is a "public agency" within the meaning of KRS 61.803(2)(g) and KRS 61.870(1)(j) and is therefore subject to the provisions of KRS 61.805, et seq. , and KRS 61.870, et seq. It must comply with KRS 61.835, which requires that the minutes of action taken at every meeting be promptly recorded, and made available for public inspection at reasonable times. The minutes of a meeting of a public agency are public records and are also subject to the disclosure requirements of the Open Records Act.
Since this matter came to the Attorney General in the posture of an open records appeal, we will not address the apparent open meetings violation. This question must be raised in a separate appeal pursuant to KRS 61.846 or KRS 61.848. With respect to the Cabinet's denial of Ms. Wasielewski's request to inspect the minutes of all meetings of the Program Review Assessment Committee at which elimination of programs was discussed, we find that the Cabinet failed to sustain its burden of proof relative to its assertion that the committee is not a public agency for purposes of the Open Records Act.
The Cabinet for Workforce Development may challenge this decision by initiating an action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.