Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Meetings Decision
This consolidated open meetings and open records appeal presents two questions for review by the Attorney General. They are:
1. Whether the RFQ Grading Committee of the Falmouth City Council violated KRS 61.835 by failing to maintain an accurate record of votes and actions taken at its meetings; and
2. Whether the Falmouth City Council violated KRS 61.872(1) by refusing to permit public access to records generated by the Committee, including minutes of its meetings.
Although the complainant, Mr. Tom Clifford, raises additional questions relating to the authenticity of the records produced, and, generally, the City's "procurement of the services of engineering and appraisal" for the new wastewater treatment plant it must construct under an agreed order with the state, these questions exceed the scope of the duties assigned to Attorney General under KRS 61.846(2) and KRS 61.880(2) . With respect to the two questions referenced above that are properly before this office, we find no violation of the Open Meetings or Open Records Acts.
By way of background we note that in 04-OMD-127 the Attorney General determined that the Falmouth City Council violated provisions of the Open Meetings Act when it conducted a closed session "per KRS 61.810(b) [sic] (land acquisition) " to discuss the purchase of property for construction of the new wastewater treatment plant. Following issuance of that decision on August 10, 2004, Mr. Clifford was afforded access to the pertinent files maintained by the City's Grants Administrator, Mr. Bill Mitchell, and obtained copies of records contained in those files. On August 24, 2004, Mr. Clifford submitted an open records request to Falmouth City Clerk Terry England in which he asked to inspect:
All "committee meeting minutes" pertaining to and including the construction of the state mandated new 0.5 mgd wastewater treatment plant to date, in their entirety.
By letter dated August 25, 2004, Mr. England notified Mr. Clifford:
As far as I can attest, there are no minutes for committee meetings on the new wastewater plant project. As far as I know, there were no meetings that would necessitate minutes. I have not attended any nor would I be required to do so if committee meetings were held. In discussing your request with Bill Mitchell, Project Coordinator, he relayed to me that all data relating to this project was in the files that you have already reviewed.
Mr. England concluded that "there are no additional minutes to be reviewed."
In a letter dated August 30, 2004, the subject line of which references "Non-existing Committee Meeting Minutes, " Mr. Clifford asked that the Council "provide [him] with the particulars as to [its] justification for exemption to Provision KRS 61.835 with regards [sic] to the procurement of engineer and appraisal consultant selection involved in the new wastewater treatment plant construction." Although he cited several provisions of the Open Meetings Act, Mr. Clifford did not state the circumstances constituting a particular violation of the Act or propose a remedy as required by KRS 61.846(1). On behalf of the Council, Falmouth City Attorney Mr. Henry Watson III responded by letter dated August 31, 2004, that in his capacity as City Attorney he was "unable to provide [Mr. Clifford] with legal advice or assistance in this matter."
On September 2, 2004, Mr. Clifford submitted a written complaint to Mayor Gene Flaugher in which he stated:
The approved meeting minutes of August 5, 2003, January 6, 2004, and the City of Falmouth's selection process for appraisal consultant date 12/23/03 indicates a "collective decision" by a "Public Agency" where as the City of Falmouth failed to record minutes pursuant to KRS 61.835.
In an effort to remedy this situation, I would suggest that all conclusions of the actions in question be deemed null and void, and all subsequent actions pertaining to said violations be ruled as invalid.
[Sic.]
In a written response to this complaint and Mr. Clifford's August 30 letter, and the records and meetings access issues raised therein, Mr. Watson emphasized that Mr. England had advised that all records relating to the wastewater treatment plant were in the files Mr. Clifford had previously reviewed and that there were "no additional minutes to be reviewed." (Emphasis added by Mr. Wilson.) Continuing, Mr. Watson observed:
You have cited the "approved minutes of August 5, 2003." They reflect the action taken by the City of Falmouth Council in the procurement of an engineering firm to plan the Regional Waste Water Project, to wit, GRW Engineers, Inc., and also an authorization and direction to the Mayor to execute a professional Services Agreement with that firm. Enclosed are copies of the materials found in Mr. Mitchell's files relating to the City of Falmouth Procurement process: Grading, negotiations and Contract Preparation, HB 269KIA Grant Regional Sewer System Construction Project, FY-2003, consisting of eight (8) pages.
The material from Mr. Mitchell's file, coupled with the minutes of the meeting of August 5, 2003, of the Falmouth City Council, clearly reflect that the City of Falmouth complied with taking of minutes of both the ad-hoc Committee, and the meeting of the City Council, at which the recommendation was reached, and the final decision made to procure an engineer, respectively.
In like manner, you have cited the minutes of the meeting of the Falmouth City Council of January 6, 2004, which reflect, "Mr. Mitchell reported the appraisal process was complete and an appraiser was hired for $ 1500.00 and would report back by the end of the month."
Enclosed is material from Mr. Mitchell's files, consisting of two (2) pages, styled City of Falmouth Procurement Process: Grading, Negotiations and Contract Preparation Regional Sewer Construction Project Appraisal FY-2004. The material from Mr. Mitchell's files, coupled with the minutes of January 6, 2004 meeting of the Falmouth City Council, clearly indicate that the City of Falmouth is in compliance with the requirement for the taking of minutes and the making of same available to the public for inspection.
In sum, Mr. Watson explained, the City Clerk does not maintain all City records and those relating to grants and administration, including any such records relating to the wastewater treatment plant, are maintained by Mr. Mitchell as the City's Grants Administrator. Because Mr. Clifford was afforded access to Mr. Mitchell's files and obtained copies of those records he requested, Mr. Watson concluded, the City "cannot agree that the records were not open to the public . . . ."
With reference to the alleged open meetings violation, Mr. Watson observed:
The City of Falmouth is not now claiming, and has never claimed, any kind of an "exemption" from KRS 61.835 with regards to the procurement of engineering services and appraisal consultant selection involved in the new wastewater treatment plant planning, design, and land acquisition process. The City Clerk informed you he had no minutes, but a fair reading of his letter does indicate Mr. Mitchell was the keeper of all grant records, and a reference to him where you might have already found minutes of the ad-hoc committee meetings.
On this basis, the City declined to implement the remedial measures Mr. Clifford proposed.
By letter dated September 10, 2004, Mr. Clifford initiated this appeal questioning the Falmouth City Council's compliance with the Open Meetings and Open Records Acts. In supplemental correspondence directed to this office following commencement of the appeal, Mr. Watson observed:
[T]he memoranda prepared by Mr. Mitchell of the City's procurement procedures and efforts, do in fact constitute the "minutes" of the ad-hoc and informal "committee" to advise the Mayor on what is in essence an executive as opposed to a legislative duty; to wit: to screen the applicant engineering firms for what will be a very long, expensive and detailed procurement, planning, and construction process. A decision thereon, I might add, that was ultimately decided by the entire legislative body of the City of Falmouth, reflected clearly in the Minutes of the August 5, 2004, meeting of the City Council by the passage of Resolution 8-5-4-2003 . . . .
On behalf of the Council, Mr. Watson reiterated that Mr. Clifford "reviewed and looked at the procurement justification in the files of the Grants Administrator following [the Attorney General's] OMD noted above, and either did not see what was there, or did not realize what was the import of what he was reviewing." Having reviewed the records identified by Mr. Watson as the minutes of the RFQ Grading Committee, and assuming that the Committee met only twice, we find that the Committee of the Falmouth City Council complied with KRS 61.835 in maintaining minutes containing an accurate record of votes and actions taken at those meetings, and with KRS 61.872(1) in affording Mr. Clifford access to those minutes.
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.
Appeals arising under this provision exclusively are rare. No doubt this is because the provision is clear on its face. With reference to ad-hoc committees whose functions are entirely advisory, the Attorney General has determined that minutes must be maintained even if those minutes only reflect that the meeting was convened, the minutes of the last meeting approved, and the meeting was adjourned. See, e.g., 95-OMD-64; 00-OMD-96. Thus, at page 4 of 95-OMD-64, we observed:
KRS 61.835 sets forth the minimal requirements pertaining to the keeping of the minutes of a public agency. . . . If at the meeting in question nothing was decided or acted upon or voted upon the minutes could, under KRS 61.835, consist of nothing more than a record of the actions which opened and adjourned the meeting. This material would be subject to public inspection. While some agencies may by their own regulations require more thorough minutes, the Open Meetings Act requires only what is set forth in KRS 61.835 relative to the minutes.
There we concluded that an agency violates the Open Meetings Act "only if its actions concerning minutes [do] not conform to the provisions of KRS 61.835." Id.
The record on appeal does not support Mr. Clifford's allegation that the Committee established, created, and controlled by the Falmouth City Council, and therefore a public agency within the meaning of KRS 61.805(2)(g), did not maintain minutes that conform to KRS 61.835. Our review of the two documents answering this description, and identified by Mr. Watson as such, confirms the City's position. The first of these documents, signed by Bill Mitchell, is captioned:
City of Falmouth Procurement Process
Grading, Negotiations and Contract Preparation
Regional Sewer Construction Project Appraisal
FY-2004
It contains the subheading "Grading Meeting," and indicates that the RFQ Grading Committee met at the City Building on December 23 at 3:30 p.m. The second of these documents, also signed by Mr. Mitchell and nearly identical in content, is captioned:
City of Falmouth Procurement Process
Grading, Negotiations and Contract Preparation
HB 269 K1A Grant Regional Sewer System Construction
Project
FY-2003
It too contains the subheading "Grading Meeting," and indicates that the HB 269 RFQ Grading Committee met at the City Building on June 18 at 1:00 p.m. Each document identifies the participants and summarizes the votes and actions taken at the meetings as well as the discussions associated therewith. Although it is unclear when these minutes were approved and became available for public inspection, it appears that Mr. Clifford was afforded access to them, along with all other documents in Mr. Mitchell's files shortly after this office issued 04-OMD-127. Because the Grading Committee complied with KRS 61.835 in maintaining a record of votes and actions taken at its meetings, and because the Council complied with KRS 61.872(1) in affording Mr. Clifford the opportunity to inspect these and other records, we find no violation of either the Open Meetings or Open Records Act.
Mr. Clifford questions the authenticity of these minutes, suggesting that they may have been manufactured as a result of his inquiries, and questions, generally, whether the Falmouth City Council complied with Kentucky law governing "procurement of engineers and the appraisal consultant selection . . . ." With reference to the former question, we note that in at least two recent decisions, the Attorney General declined the invitation to be drawn into a dispute involving the authenticity of records produced in response to an open records request. See 02-ORD-89 (recipient of public records questioned quality and value of the information those records contained and Attorney General refused to consider this issue as one incapable of resolution under the Open Records Act) ; 04-ORD-032 (recipient of public records questioned the degree of detail and "verifiability" of records produced in response to open records request and Attorney General characterized the question as one that did not arise under the Open Records Act) . Applying the reasoning of those decisions to Mr. Clifford's question, we stand firm in our position that the Attorney General cannot adjudicate a claim that the records produced are not what they purport to be. If Mr. Clifford wishes to pursue this question, along with questions pertaining to the City's procurement of engineering and appraisal services for its wastewater treatment plant, he should do so through the courts. Having rendered a decision that the Falmouth City Council did not violate the Open Meetings or Open Records Acts, our duties under KRS 61.846(2) and KRS 61.880(2) are fully discharged.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.846(4)(a) and KRS 61.880(5)(a). 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 proceedings.
Tom Clifford1127 Ed Monroe RoadFalmouth, KY 41040
Mayor Gene Flaugher230 Main StreetFalmouth, KY 41040-1223
Henry Watson IIICity Attorney 525 High Street, Rm. 328Paris, KY 40361