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 Murray State University Board of Regents' denial of Mr. Jim Paxton's August 3, 1992, request for access to certain records which were generated in the course of a closed session conducted by the Board of Regents in its March 17, 1992, regular meeting. Those records are identified as the "tapes, transcripts of tapes, notes and all other records of the March 17 closed session . . . as well as copies of budget documents, letters, reports, recommendations or other materials discussed or distributed during the closed session. "
Mr. Paxton, editor of The Paducah Sun, indicates that the newspaper's attorney, Mr. Mark C. Whitlow, had previously sought an opinion from the Attorney General relative to the propriety of the closed session. This Office responded to Mr. Whitlow's request in a letter dated July 17, 1992. There we concluded:
[T]he exceptions set forth in KRS 61.810(6) cannot be utilized where general personnel matters are involved. They only apply where the public agency is discussing matters involving the appointment, discipline or dismissal of a specific individual. A meeting or a portion of a meeting can be legally closed only when it comes within one of the specifically enumerated exceptions set forth in KRS 61.810.
Mr. Paxton and Mr. Whitlow interpreted this letter "to say that the exemption relating to personnel matters does not apply to the sort of proceeding for which the regents invoked it."
Accordingly, on August 3, Mr. Paxton tendered an open records request to the Board of Regents for access to the records generated in the closed meeting. That request was denied in a letter dated August 6, 1992. Relying on KRS 61.878(1)(a) and (h), Mr. James O. Butts, Chairman of the Board of Regents, stated that the requested records "contain preliminary recommendations made about specific individuals, disclosure of which would constitute an unwarranted invasion of personal privacy. " Additionally, he argued:
KRS 61.815 allows the Board of Regents to conduct a closed session in order to discuss the following:
a. Litigation matters (KRS 61.810(1)(a)) [sic]; and
b. Discussions which might lead to the appointment, discipline, or dismissal of an individual employee (KRS 71.810(1)(f)) [sic].
The minutes of the March 17, 1992, open session clearly reflect that the future employment opportunities of particular, specific personnel, not classes or groups, would be discussed during the closed session. In addition, these same minutes indicate that litigation matters were discussed.
He therefore declined to release the records.
This hybrid appeal presents issues which implicate both the Open Records and the Open Meetings Act. It is important to note that because the meeting which gives rise to this appeal was conducted prior to enactment of House Bill 16, which gave the Attorney General a dispute resolution role similar to the role he has always had under the Open Records Act, our opinion relative to the Open Meetings question is advisory, and does not have the force and effect of law. Nevertheless, resolution of this question is critical to resolution of the Open Records question.
We are asked to determine if the Murray State University Board of Regents improperly denied Mr. Paxton's open records request. The Board has advanced two arguments in support of its decision to withhold the documents. It maintains that the meeting was properly conducted in closed session under authority of KRS 61.810(1)(a) and (f) and OAG 87-16, in that the discussion was limited to personnel matters involving specific individuals, and matters that involved litigation, and that the records generated in the meeting are therefore exempt. As a second line of defense, the Board asserts that the requested records fall squarely within the parameters of KRS 61.878(1)(a) and (h), the Open Records exceptions which authorize nondisclosure of public records containing information of a personal nature the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, and preliminary recommendations in which opinions are expressed or policies formulated.
It is the opinion of this Office that the Board violated the Open Meetings Act, to the extent that its closed discussions focused on classes of, as opposed to specific, individuals. However, only those records which reflect discussions of classes of individuals assuming such records exist, are subject to inspections. None of the records distributed during the meeting, which were properly characterized as "preliminary recommendations, " need be disclosed until final action is taken.
This Office has taken the position that 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, since to do so would defeat the purpose of conducting the closed session. See e.g., OAG 87-16. While we have never expressly held that the minutes of an improperly conducted closed session are subject to inspection, we believe that this proposition is an obvious corollary of the first. Clearly, if a quorum of the members of a public agency has discussed matters of public concern in a nonpublic forum, any records which were made of that discussion must be made available for inspection.
We have reviewed the tape recording which Mr. Paxton provided to us, and which contains statements of then Chairman of the Board, Hon. Kerry Harvey. Responding to questions by reporters from the Associated Press, Mr. Harvey stated that the closed session was held to discuss both classes of individuals and specific individuals. By this we must assume Mr. Harvey meant that discussions would include general personnel matters. As we noted in our July 17, 1992, letter to Mr. Whitlow, KRS 61.810(6) cannot be invoked where such matters are discussed. To the extent that the Board's discussion in closed session dealt with classes of individual, its actions violated the Open Meetings Law. Any records generated during that portion of the closed session must be made available for inspection. The remainder, including records reflecting discussion of specific personnel actions and pending Title 7 litigation against the University, may be withheld.
An entirely separate issue is presented by Mr. Paxton's request for "budget documents, letters, reports, recommendations or other materials discussed or distributed during the meeting." We do not believe that the Board forfeited its right to invoke the exceptions to the Open Records Act when it violated the Open Meetings Law. Simply stated, the records reviewed by the Board relative to the proposed budget, and all other records of a preliminary character, enjoy the protection of KRS 61.878(1)(i), the Open Meetings issue nonwithstanding, until final action is taken by the Board. See e.g., OAG 91-78 (copy enclosed).
KRS 61.878(1)(i) authorizes the nondisclosure of:
Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
Having reviewed Mr. Butts' denial of Mr. Paxton's request, the minutes of the March 17 meeting, and the taped interview with Mr. Harvey, we conclude that the records distributed to the members of the Board contained preliminary recommendations which were not intended to represent its final action. Accordingly, those documents were properly withheld.
Inasmuch as we believe KRS 61.878(1)(i) authorizes nondisclosure of the requested documents, we decline to comment on the applicability of KRS 61.878(1)(a).
Mr. Paxton and the Murray State University Board of Regents may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.