Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the actions of the City of Madisonville 911 Board relative to the portion of the September 29, 2003 open records request of Elbert A. Powell that asked for a copy of the minutes of the September 29, 2003 meeting of the City of Madisonville/Hopkins County 911 Advisory Committee and a copy of the treasurer's report of the 911 Board violated the Open Records Act. For the reasons that follow, we find no violation of the Act.
By letter dated October 2, 2003, Joe A. Evans III, City Attorney, responded to Mr. Powell's request on behalf of the Board, advising him in relevant part:
In your letter dated September 29, 2003, you requested copies of the minutes of the September 29, 2003 meeting. At this point in time, the minutes have not been prepared and approved by the board. KRS 61.835 provides that minutes shall be open for inspection no later than immediately following the next meeting of the body. Until such time as the minutes have been officially approved, they are preliminary documents and are not subject to being disclosed pursuant to an Open Records request. See Attorney General's Opinion 03-ORD-033 and 93-ORD-67.
?
Your letter also requested a copy of the treasurer's report. No treasurer's report was presented at the September 29, 2003 meeting.
As a result of the agency's response, Mr. Powell initiated the instant appeal. In his letter of appeal he asks whether the 911 Board is required to keep a treasurer's report, expenditures, and receipts and whether he has to wait until the next 911 Board meeting to receive a copy of the requested minutes, since the Board only meets once or twice a year.
After receipt of notification of the appeal and a copy of the letter of appeal, Mr. Evans, on behalf of the Board, provided this office with a response to the issues raised in the appeal. In his response, Mr. Evans advised:
In his letter dated September 29, 2003, Mr. Powell requested three things from the City: (1) information concerning how notice of the 911 Board was given; (2) a copy of the minutes of the previous meeting of the 911 Board, and (3) a copy of the treasurer's report of the 911 Board. The City of Madisonville responded in a timely fashion and by letter dated October 2, 2003 furnished Mr. Powell a copy of the public notice of the meeting including notice sent to the media and a copy of the minutes of the previous 911 Board meeting as requested by Mr. Powell.
Mr. Powell was advised that the minutes of the September 29, 2003 911 Board meeting had not been prepared and/or approved by the Board. Mr. Powell was advised that until such time as the minutes had been officially approved they were preliminary documents and were not subject to being disclosed pursuant to an Open Records request. See Attorney General's Opinions 03-ORD-033 and 93-ORD-67. Mr. Powell was further advised that no treasurer's report was presented at the September 29, 2003 meeting, and therefore, there was no treasurer's report to provide. The Attorney General's Office has long recognized that a public agency is not obligated to create a record that does not exist to satisfy an Open Records request. See Attorney General's Opinion 03-ORD-018; OAG 90-101 and 96-ORD-251. It should be noted that detailed financial information pertaining to the 911 Board's receipts and disbursements are included in the annual audit of the City's financial records for the years ending June 30 each year.
The audited figures for year ending June 30, 2003, have not been completed and presented to the City by its independent CPAs as of the date hereof.
We are asked to determine whether the response of the Board constituted a violation of the Open Records Act. For the reasons that follow, we conclude it did not.
We address first Mr. Powell's request for a copy of the minutes of the Board's September 29, 2003 meeting. The Board advised him that these minutes had not yet been prepared and would not be subject to disclosure until they were officially approved by the Board's next meeting. We agree with the Board's position and find this response did not violate the Open Records Act.
KRS 61.835 provides:
The minutes of action taken at every meeting of any such 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.
(Emphasis added.) In construing this provision:
[T]he Attorney General has stated that "both the Open Meetings Statute, KRS 61.805 to 61.850, and the Open Records Statute, KRS 61.870 to 61.884, mandate public access to the minutes of a public body." OAG 83-139, p. 2. Nevertheless, we have opined:
OAG 80-421, p. 3. This is because written and shorthand notes:
OAG 79-333, p. 1, 2.
98-ORD-36, p. 3, 4. We therefore find no error in Board's response to Mr. Powell's request for a copy of the minutes of the Board's September 29, 2003 meeting as they had yet to be prepared and had not been officially approved by the Board. 03-ORD-033 and 93-ORD-67. Of course, once the minutes are approved by Board, they must be made available for inspection and copying.
We address next Mr. Powell's request for a copy of the treasurer's report. The Board affirmatively advised Mr. Powell that no treasurer's report had been presented at the September 29, 2003 meeting and no such document existed.
This office has consistently recognized that a public agency cannot afford a requester access to records that it does not have or which do not exist. 93-ORD-134. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. Thus, the Board's action in affirmatively advising Mr. Powell that it did not have the requested report and why was consistent with the Open Records Act and prior decisions of this office and did not constitute a violation of the Act.
Moreover, this office has also long recognized that a public agency is not obligated to compile a list or create a record to satisfy an open records request. See, e.g., OAG 76-375; OAG 90-101; 96-ORD-251. Accordingly, we conclude that the Board's response in this regard was also proper and it would not be required to create a treasurer's report to meet the parameters of a request. We do note that the Board, in its response to this office, advised that detailed financial information pertaining to the 911 Board's receipts and disbursements are included in the annual audit of the City's financial records for the years ending June 30 each year and that this year's has not yet been completed.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
Distributed to:
Elbert A. PowellP.O. Box 601116 South Hopkinsville StreetNortonsville, KY42442
Joe A. Evans IIIMadisonville City AttorneyP.O. Box 695Madisonville, KY 42431
Karen L. Cunningham, MayorCity of MadisonvilleP.O. Box 695Madisonville, KY 42431