Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: A. B. CHANDLER III, ATTORNEY GENERAL; THOMAS R. EMERSON, ASSISTANT ATTORNEY GENERAL
OPEN MEETINGS DECISION
This matter comes to the Attorney General as an appeal by Davy Jones in connection with his complaint against the University of Kentucky.
In a communication to George DeBin, dated April 29, 1996, Mr. Jones said relative to the open meetings provisions:
The University President has failed to cause the bodies caused to exist by way of Board Governing Regulations at GR IV-2, final two paragraphs, and page IV-3, fourth sentence from the bottom of the page, to operate in compliance with the Open Meetings law, including failure to create any additional records or transactions of official function that are not required by the Open Meetings but which are required by KRS 171.640/171.680, reached through KRS 61.850. As a remedy you must as a minimum acknowledge that the bodies described in the immediately preceding sentence are subject to the Open Meetings Law, and must comply with any requirements of the Archives and Records Law reached through KRS 61.850.
Mr. George J. DeBin, the University's Official Records Custodian, responded to Mr. Jones in a memorandum dated May 2, 1996 and advised:
Concerning your "Open Meetings/Archives and Records action" I have examined a copy of the Governing Regulations, and I am unable to determine those bodies to which you are referring. Thus, I am not able to respond to your request.
Mr. Jones, in a memorandum to Mr. DeBin, dated May 6, 1996, apparently said, among other things, that he was referring to committees of the University Senate.
Mr. DeBin, in a memorandum dated May 9, 1996, advised Mr. Jones that lists of all Senate Committees and administrative committees for the academic year were being furnished. "Concerning your reference to Open Meetings under KRS 61.846, as Official Records Custodian it is not my responsibility to respond to such requests."
This office received a letter of appeal from Mr. Jones on June 14, 1996 in which in part he referred to the University's failure to respond to his "Open Meetings Request."
This office has a precise and narrow function in connection with the administration of the Open Meetings Act. KRS 61.846(2) provides that when an appeal has been properly submitted the Attorney General shall review the complaint and denial and issue a written decision stating whether the agency violated the provisions of the Open Meetings Act.
Before the Attorney General can carry out his function under the law the complaining party is required to follow a prescribed course of action. A person seeking enforcement of the Open Meetings Act must first submit a complaint to the presiding officer of the public agency suspected of violating the law. The complaint shall state the circumstances which constitute the alleged violation and shall state what the public agency should do to remedy the alleged violation. KRS 61.846(1).
While Mr. DeBin is the University's Official Records Custodian and the proper person to whom requests for documents under the Open Records Act should be directed, we feel reasonably safe in assuming that he is not the presiding officer of the University Senate or any of its subcommittees. Mr. Jones should have made an attempt to address his complaint to the presiding officer of the group or groups with whom he is concerned.
However, since the complaint was directed to a public official of the University, we believe that person had the duty to either forward the complaint to the proper party if that party's name and location are known to him, advise the complaining party of the name and location of the presiding officer in question, if known to him, so the complaining party can direct the document to the proper person, or return the document to the complaining party with a statement that the name and location of the presiding officer are not known. See 93-OMD-61, copy enclosed, at page two, and the analogy to KRS 61.872(4) of the Open Records Act. The provisions of the Open Meetings Act, relative to the public agency's obligation to direct a complaint or request to the proper party, are not as precise as those found in KRS 61.872(4), but we do not believe it should be more difficult to file a complaint under the Open Meetings Act than it is to file a request under the Open Records Act.
An advisory opinion of this office, OAG 94-25, copy enclosed, dealt with the application of the Open Meetings Act to various entities within the University of Kentucky organizational structure, including the University Senate. The parties involved in this matter may find that opinion of some use.
It is the decision of the Attorney General that the complaining party should have directed his communication to the presiding officer of the public agency with whom he was concerned, but since it was received by a public official that person should have either forwarded it to the proper party, if that party's name and location were known, advised the complaining party of the name and location of the presiding officer so the complaining party could have directed the document to the proper person, or returned the document to the complaining party with a statement that the name and location of the presiding officer are not known.
A party aggrieved by this decision may challenge it by filing an appeal with the appropriate court within thirty days from the date of this decision. See KRS 61.846(4)(a) and KRS 61.848. Pursuant to KRS 61.846(5), the Attorney General must be notified of any action filed in the circuit court, but he shall not be named as a party in that action or in any subsequent proceeding under the Open Meetings Act.