Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Kentucky Transportation Cabinet violated the Kentucky Open Records Act in denying the request of River Fields, Inc. for "a copy of all recordings (visual and/or audio) of the April 27 and July 18, 2006 meetings of the Kentucky Historic Preservation Advisory Team for the Louisville-Southern Indiana Ohio River Bridges Project." In accordance with OAG 92-111 and its progeny, this office affirms the denial of River Fields' request; the specified recording is not a public record within the meaning of KRS 61.870(2).
On August 1, 2006, Leslie Barras, Associate Director, submitted the foregoing request on behalf of River Fields to Ann Stansel, Office of Legal Services, via electronic mail. 1 By letter dated August 8, 2006, J. Todd Shipp, Assistant General Counsel, advised Ms. Barras that "the requested tapes were made for the purpose of keeping notes in order to compile the minutes of these meetings." Citing KRS 61.878(1)(i), Mr. Shipp further observed that notes "taken for the purpose of creating meeting minutes are not subject [to] disclosure," and therefore "are not required to be maintained by the public agency. " In closing, Mr. Shipp offered to provide Ms. Harras with "copies of the official minutes of these meetings" upon request. Relying upon OAG 92-111, in which the Attorney General departed from prior decisions of this office by holding that a recording of a public meeting "may not properly be treated as a preliminary document, but should be made available to the public upon request," Ms. Harris subsequently initiated this appeal from the Cabinet's denial of her request on behalf of River Fields.
On appeal, Ms. Harras further argues that Mr. Shipp's denial of her request "does not address the dispositive factual issues identified in [OAG 92-111] that are key to the analysis of whether the recordings of public meetings are public records and, therefore, subject to disclosure." Noting the Cabinet provided to River Fields, "in response to a May 11, 2006 Open Records request, a recording made in a mandatory pre-bid conference (open to the public)," Ms. Harras contends the Cabinet's denial of her request "is contrary to its practice in the recent past." In addition, "formal meeting minutes are often not issued until 3-4 months after the meeting, while a very limited time (15 days) is allowed for written comments after the meeting." 2
Upon receiving notification of River Fields' appeal from this office, Mr. Shipp responded on behalf of the Cabinet. According to Mr. Shipp:
The copy of the recordings which River Fields has requested [is] digital recordings not audio tape recordings. They were approximately forty-five minutes in length and are used strictly by [CTS], the general engineering consultant as a secondary backup to the participants in maintaining minutes of the KYHPAT meetings. They are destroyed after minutes are transcribed. [They are] referred to only if needed. CTS generates these strictly on their own initiative and at no time are they directed to or mandated by [the Cabinet], the state agency [,] to prepare or use a tape to prepare minutes. At no time are these tapes prepared, owned, used or in the possession of the public agency or are they made at the direction of [The Cabinet]."
(Emphasis added). As correctly observed by Mr. Shipp, the facts which culminated in OAG 91-111 are clearly distinguishable from those which prompted this appeal. In fact, this situation "is exactly the factual scenario" set forth on page 4 of that decision, wherein the Attorney General made the following clarification [as quoted by Mr. Shipp]:
"We do not mean to suggest that an agency is required to make and keep [on] file a recording of its public meetings under the Open Records Act. Nor do we mean to suggest that a secretary or clerk who personally purchases a tape and records the meeting on his or her own initiative to assist in the preparation of the minutes, must release the tape for public inspection. Under these circumstances, the tape could not be treated as a public record, but would instead be considered the clerk's personal property. See e.g., OAG 83-194 (holding that a copy of a deposition prepared by a stenographer is [not] a public record) . Our holding is limited to those instances when the agency directs that a tape is made of its public meeting, for whatever purpose, and that tape is purchased with agency funds. OAG 79-333, OAG 87-44, OAG 88-32, OAG 89-93, and OAG 91-49, modified accordingly. [Emphasis added.]"
In our view, this excerpt is determinative on the facts presented; a copy of OAG 92-111 is attached hereto and incorporated by reference. See 06-ORD-039.
According to Mr. Shipp, "should River Fields or anyone who attends the KYHPAT meetings desire to do so, [they] may utilize a taping device for their own edification." In this case, "an employee of CTS utilized his own digital pocket recorder as a secondary backup to his notes. He is not directed nor reimbursed for his tape nor does he send this tape to the [Cabinet] for its own use. It is his own tape, done at his own initiative, nothing more, nothing less. " (Emphasis added). 3 To reiterate, the recordings at issue are tapes "generated by a CTS employee for [his] own needs. River Fields is free to do the same at the meetings." In conclusion, Mr. Shipp notes the Cabinet has "complied with the Open Records Act when it comes to tape recordings in the past as exhibited by its providing a copy of the mandatory pre-bid meeting tape to River Fields[,]" with the "difference being that involved a tape made by a public agency at our direction and our expense." Because that is "clearly not the case in this matter," the Cabinet "moves for a rejection of this Appeal."
Although River Fields is correct insofar as the Attorney General departed from the view that "release of the approved minutes of the meeting satisfies an agency's obligation under the Open Records Act" in OAG 92-111, the analysis did not end there. Of particular relevance, this office held that "if an agency elects to make a tape recording of its public meetings," and same is owned, used, or in the possession of the agency, "it may not properly be treated as a preliminary document, but should be made available upon request"; this holding was expressly limited "to those instances when the agency directs that a tape is made of its public meeting, for whatever purpose, and that tape is purchased with agency funds." Id. at pp. 3-4. Because the audiotapes requested "were prepared at the direction of" the public agency "and owned by it[,]" the audiotapes were properly characterized as public records within the meaning of KRS 61.870(2). 4 Id., p. 4. Conversely, the recordings at issue in this appeal were generated by a CTS employee "at his own initiative" and expense, and were never owned, used, possessed or retained by the Cabinet-a critical distinction overlooked by River Fields. In other words, the recordings do not fall within the definition of "public record" codified at KRS 61.870(2). To hold otherwise would contravene governing precedent.
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.
Leslie Elizabeth BarrasAssociate Director and Staff AttorneyRiver Fields, Inc.643 West Main Street, Suite 200Louisville, KY 40202-2921
Ann StanselExecutive SecretaryOffice of Legal Services Transportation Cabinet200 Mero Street, 6th FloorFrankfort, KY 40622
J. Todd ShippAssistant General CounselOffice of Legal ServicesTransportation Cabinet200 Mero Street, 6th FloorFrankfort, KY 40622
Footnotes
Footnotes
1 Pursuant toKRS 61.872(2):
Any person shall have the right to inspect public records. The official custodian may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected. The application shall be hand delivered, mailed or sent via facsimile to the agency.
Because Ms. Barras failed to comply with KRS 61.872(2), the Cabinet could have declined to accept her request; however, the Cabinet opted to respond without mention of this deficiency thereby waiving any such argument.
2 Although Ms. Harras argues the Cabinet failed to respond within the timeframe required by KRS 61.880(1) (Mr. Shipp's letter is dated August 8, 2006, instead of three business days after receipt, or August 4, 2006), Mr. Shipp acknowledges this procedural error on appeal, explaining that the Cabinet "had to contact CTS [Community Transportation Solutions]," which resulted in a delay of one day. Accordingly, further consideration of this issue is unwarranted, particularly since the delay was minimal.
3 Attached to Mr. Shipp's response is a copy of the State Records Retention Schedule (General Schedule for State Agencies, Miscellaneous Records), Series No. M0049 of which governs "Recordings of Meetings (May be audio or video)." In his view, it "is questionable if this group" of records is encompassed by that category; Mr. Shipp is correct in asserting "this is applicable only if the minutes are kept at the direction of the State Agency. " Because the recordings in question do not satisfy this prerequisite, the quoted paragraph from OAG 92-111 remains dispositive; further consideration unnecessary.
4 In relevant part,KRS 61.870(2) provides:
"Public record" means all books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency.