Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Meetings Decision
This matter having been presented to the Office of the Attorney General in an open meetings appeal, and the Attorney General being sufficiently advised, we find that the Carter County Fiscal Court violated both the procedural and substantive provisions of KRS 61.805 to 61.850 in the disposition of Mignon Colley's August 12, 2011, written complaint. The fiscal court violated KRS 61.846(1) by failing to respond to Ms. Colley's complaint and KRS 61.840 by adopting Resolution 187, restricting "camera and/or video recording of a fiscal court meeting . . . [to] the specially designated recording zone [located in] . . . the last pew of the fiscal court room . . . ."
In her August 12 complaint, Ms. Colley challenged Resolution 187 because it prevented her "from having a clear view of the court and [from] pick[ing] up the audio of the fiscal court." Noting that it is difficult to hear from the front of the meeting room, Ms. Colley maintained that it was impossible to record the fiscal court's discussion from the designated area, some 25 feet away. She emphasized that her camera is no larger than her hand and is mounted on a tripod that does not obstruct the public's view or otherwise "interfer[e] with the orderly conduct of the public meeting. " It was her position that Resolution 187 violated KRS 61.840, as construed in 96-OMD-143, and that the fiscal court could remedy this violation by rescinding it. We agree.
The fiscal court did not respond to Ms. Colley's August 12 complaint or avail itself of the opportunity to respond upon receipt of this office's notification of Ms. Colley's August 19 appeal. Its failure to respond to her written complaint constituted a violation of KRS 61.846(1) which provides:
The public agency shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of the complaint whether to remedy the alleged violation pursuant to the complaint and shall notify in writing the person making the complaint, within the three (3) day period, of its decision . . . . An agency response denying, in whole or in part, the complaint's requirements for remedying the alleged violation shall include a statement of the specific statute or statutes supporting the public agency's denial and a brief explanation of how the statute or statutes apply. The response shall be issued by the presiding officer, or under his authority, and shall constitute final agency action.
Ms. Colley hand-delivered her complaint to Carter County Judge/Executive Charles Wallace on August 12, 2011. Having received no response to her complaint, she initiated this appeal on August 19, 2011. Shortly thereafter, this office issued notification of the appeal, along with a copy of the contents of the appeal, to Judge Wallace. Although the notification afforded the agency an opportunity to respond, the Carter County Fiscal Court elected not to do so. The fiscal court's failure to strictly adhere to the procedural requirements of the Open Meetings Act, codified at KRS 61.846(1), violated both the mandate of the Act as well as "the public good. "
Floyd County Board of Education v. Ratliff, 955 S.W.2d 921, 923 (Ky. 1997) citing
E.W. Scripps Co. v. City of Maysville, 790 S.W.2d 450 (Ky. App. 1990).
So, too, did the adoption of Resolution 187 which states, in full:
Due to the possibility of an annoyance or interference from a camera and/or video recording device occurring during a Fiscal Court meeting, this 9th day of August, 2011 the Fiscal Court of Carter County passes the following Resolution;
AND, WHEREAS;
The Fiscal Court wishes to express its desire to eliminate the possibility of such an annoyance or interference;
IT IS THEREFORE RESOLVED AS FOLLOWS:
Per Clifford Roe's motion, with Ronnie Greenhill seconding said motion, Clarence Fankell and Brandon Burton concurring and with Brad Brammel abstaining from said motion, it was established that starting on September 1, 2011, the Fiscal Court declares that any camera and/or video recording of a Fiscal Court meeting shall only occur at the specially designated recording zone. Said zone is the last pew of the Fiscal Court room, unless otherwise noted. This is in accordance with the Open Meetings Act and shall not run contrary to the Open Meetings Act.
To the extent that Resolution 187 imposes blanket restrictions on recording public meetings absent particularized proof that the maintenance of order is threatened at a specific meeting, we find that it violates KRS 61.840.
In 04-OMD-102, this office held that the Newport Independent School District Board of Education violated KRS 61.840 when it engaged in a course of conduct that prevented a videographer from recording its public meeting. A copy of that decision is attached hereto and incorporated by reference. In its defense, the Board explained that discussions were underway to determine "the proper mechanism and procedures whereby such videography could be conducted in a non-obtrusive fashion so as not to adversely interfere with the business of the regular meeting." 04-OMD-102, p. 2. We rejected the Board's position. We began our analysis with the language of KRS 61.840:
No condition other than those required for the maintenance of order shall apply to the attendance of any member of the public at any meeting of a public agency. No person may be required to identify himself in order to attend any such meeting. All agencies shall provide meeting room conditions which insofar as is feasible allow effective public observation of the public meetings. All agencies shall permit news media coverage, including but not limited to recording and broadcasting.
Continuing, we observed:
In 96-OMD-143, the Attorney General declared that a policy prohibiting members of the public from taping open meetings of a public agency was inimical to the spirit and the letter of the Act. Based on the overwhelming weight of legal authority from other jurisdictions, and the statement of legislative policy codified at KRS 61.800, strongly affirming the notion of open government, we held that the public has a right to tape record a meeting of a public body subject only to the condition that the equipment used did not interfere with the orderly conduct of the meeting. Citing the case of Sudol v. Borough of North Arlington, 137 N.J. Super. 149, 348 A.2d 216, 219 (1975)), along with many other authorities, we concurred with the court's view that:
96-OMD-143, p. 4. We expressly overruled OAG 85-74, limiting the public's right to tape a meeting, and endorsed the right of the average citizen to memorialize a public meeting on tape. See also, 01-OMD-166.
04-OMD-102, p. 4-5. Although the Board had not yet established a policy imposing restrictions on the public's right to videotape its public meetings, 1 we admonished the Board that the Open Meetings Act invests all members of the media and the public with the right to tape those meetings, declaring:
Because KRS 61.840 authorizes only those conditions on attendance that are " required for the maintenance of order ," we know of no legal basis for the Board's proposal to adopt "procedures to ensure that [the recording of its meetings will] be done in a manner so as not to significantly interfere with the conduct of" its business. Instead, we believe that the Board must permit the media and the public to record its meetings, and may impose restrictions or prohibitions only where individual circumstances warrant. See OAG 77-755, p. 3 (holding that prohibitions on recording of public meetings should only be imposed "where the facts definitely indicate that such prohibition was required to maintain order").
04-OMD-102, p. 5 (emphasis in original).
04-OMD-102 is dispositive of the issue presented in Ms. Colley's appeal. The Carter County Fiscal Court cannot, by ordinance, executive order, or resolution, abridge the statutorily invested right to videotape public meetings. 97-ORD-22; 99-ORD-219; 09-ORD-170. That a local ordinance, executive order, or resolution "stand[s] inferior to, and [is] subordinate to the laws of the state, is a basic principle."
City of Owensboro v. Board of Trustees, City of Owensboro Employees Pension Fund, 301 Ky. 113, 190 S.W.2d 1005, 1008 (1945). Ms. Colley presents unrefuted proof that the "specially designated recording zone" located 25 feet from the table where the Carter County Fiscal Court conducts business, without the benefit of amplification, effectively deprives the media and the public of the ability to videotape the fiscal court's meeting in contravention of KRS 61.840. No proof is presented that particular actions of individual members of the media or the public have resulted in the disruption of a fiscal court meeting. The "possibility of an annoyance or interference from a camera and/or video recording device" clearly does not rise to this level. For these reasons, Resolution 187, establishing the challenged "recording zone, " is unenforceable and inimical to the public good.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.846(4)(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.
Distributed to:
Mignon ColleyCharles WallacePatrick Flannery
Footnotes
Footnotes
1 The Board had, in fact, deprived the complainant of the right to videotape its meetings by holding his request to do so in abeyance while it developed a policy "to ensure that such activities will be conducted in a manner which will not adversely interfere with the conduct of its business."