Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Education and Workforce Development Cabinet violated the Open Records Act in denying Antoinette C. Taylor's August 4, 2013, request for copies of the minutes of the June, July, and August 2013 meetings of the Unemployment Insurance Commission and for copies of the Kentucky Unemployment Insurance Digest for 2009, 2010, 2011, 2012, and 2013. We find that the Cabinet erred in withholding redacted copies of the June and July 2013 1 meeting minutes, reflecting discussions and actions that should have been taken in open session before and after closed session discussions of unemployment insurance cases. We also find that if the "Kentucky Unemployment Compensation Laws and Regulations, 2012 Edition" that it previously disclosed to her is identical to the "Kentucky Unemployment Digest" that is required by 787 KAR 1:110 Section 6, the Cabinet did not err in refusing to provide Ms. Taylor with a duplicate copy of the 2012 Digest. Nor did it violate the Act in failing to provide her with digests for 2009, 2010, 2011, and 2013 that were never produced. If, however, the "Laws and Regulations" is not identical to the "Digest" required by 787 KAR 1:110 Section 6, the Cabinet's unexplained failure to provide Ms. Taylor with a copy of the 2012 Digest does, in fact, constitute a violation of the Open Records Act.
In a timely response, the Cabinet denied both of Ms. Taylor's requests advising her as follows:
Minutes of the Unemployment Insurance Commission meetings are confidential under KRS 341.190(3) , thus they will not be provided. You also request UI Digests for years 2009-2013. Digests are very costly to produce and are published only as funds allow. They are not issued every year. The most recent Digest was published in 2012 and that was already provided to you in response to one of your previous requests at no cost to you. The last Digest before that had not been published since 2007. There have been no other Digests published within the date range you identified.
On appeal, Ms. Taylor challenged the Cabinet's position. She acknowledged receipt of the "Kentucky Unemployment Compensation Laws and Regulations, 2012 Edition," but noted that it did not contain the precedent decisions required by 787 KAR 1:110 Section (6). 2 In addition, she asserted her right of access to minutes of Commission meetings, KRS 341.190(3) notwithstanding, at least to the extent the minutes related to her.
In supplemental correspondence directed to this Office after Ms. Taylor initiated her appeal, the Cabinet argued that because KRS 341.190(3) mandates the confidentiality of all "information obtained from an employing unit or individual and other records made by the Cabinet in the administration of [Chapter 341]," the Commission's meetings are confidential. Since it "does nothing but discuss pending unemployment insurance cases at its meetings," the Cabinet reasoned, the minutes of those meetings are also confidential as "records made in the administration of the unemployment insurance program." Nevertheless, the Cabinet acknowledged that a review of the August minutes, which were not "completed" until after it responded to her request, confirmed discussion of Ms. Taylor's motion for reconsideration at the August Commission meeting. Pursuant to KRS 341.190(3)(b), 3 the Cabinet provided Ms. Taylor with a redacted copy of those minutes. The Cabinet stood firm in its position that a copy of the 2012 Digest was previously provided to Ms. Taylor, that it had no duty to provide her with another, and that no other digests exist for the date range identified in her request.
It is the Cabinet's position that "this is not an open meeting case . . . [but is instead] an open records case. All that matters in this case is whether the minutes from those meetings are subject to open records law." In general, we agree. Ms. Taylor did not complain under the Open Meetings Act that the Commission violated KRS 61.835 by failing to record minutes of its meetings. Instead she complained under the Open Records Act that, once recorded, the minutes should be accessible to her. Thus, this appeal presents intersecting open records and open meetings issues. It involves access under the Open Records Act to minutes that must be recorded under the Open Meetings Act. We find that the minutes are subject to the Open Records Act and accessible to the public to the extent they do not reflect discussions of unemployment insurance cases that the Commission may conduct in closed session. We disagree with the Cabinet that because the Commission's meetings primarily focus on discussions of pending unemployment insurance cases, the Commission is not obligated to comply with the Open Meetings Act and Open Records Acts by making those portions of the minutes reflecting discussion of nonexempt matters accessible to the public as required by KRS 61.835 , 4 and, generally, by the mandatory disclosure provisions of the Open Records Act.
In a recent decision, a copy of which was provided to the Cabinet as an attachment to our KRS 61.880(2)(c) request for additional information substantiating the Cabinet's position, this office determined that a public agency 5 whose primary charge required the discussion of public business that was shielded from public scrutiny by a statutory exception to the Open Meetings Act was not relieved of its obligations under the Act even though those discussions "would dominate the proceedings at [its] meetings . . . ." 12-OMD-140, p. 6. At page 9 of that decision we observed:
[T]he applicability of an exception permitting discussion in closed session does not . . .take the [agency] entirely outside the scope of the Open Meetings Act. Any meeting of a quorum of the [agency] where public business is discussed or action is taken . . . must still be convened in open session pursuant to KRS 61.810(1). Such meetings are subject to the notice provisions of KRS 61.823 for special meetings, or if and when regular meetings are held, the schedule provisions of KRS 61.820. If action is taken at the meeting, minutes are to be kept pursuant to KRS 61.835.
12-OMD-140, p. 9, citing 97-OMD-139. Although the majority of its business may be properly conducted in closed session, such an agency must convene its meetings in open session, and, when appropriate, retire to closed session. "All such meetings," we observed, "must be memorialized in minutes as required by KRS 61.835." 11-OMD-092, p. 4. "At a minimum," we opined, "the minutes should reflect that the meeting was convened, a quorum was present, the minutes of the last meeting were approved, and the meeting was adjourned." 11-OMD-092, p. 4, citing 99-OMD-166 and 05-OMD-117.
While we agree with the Cabinet that KRS 61.810(1) authorizes the Commission to conduct most of its meetings in closed session, 6 our past decisions confirm the Commission's duty to maintain minutes of its open session as described. The minutes of the June, July, and August 2013 Commission meetings, submitted to this office pursuant to KRS 61.880(2)(c) for in camera inspection, reflect the date, time, and place of the meetings, those present at the meetings, approval of votes at the previous meeting, and approval of orders included on the jurisdictional docket. 7 These portions of the minutes of the Commission's meetings are not shielded from public access as "records made by the Cabinet in the administration of [Chapter 341]" or "deliberations . . . regarding individual adjudications." Because the remainder of the minutes relates to discussions of records and information obtained or made "in the administration of [Chapter 341]," they may properly be withheld as minutes of a properly conducted closed session. See, above, e.g., OAG 87-10, p. 3 (recognizing that "minutes of a properly conducted executive or closed session of a meeting of a public agency need not be made available for public inspection or even recorded to the extent that doing so would defeat the purpose of conducting the closed session" ); see also OAG 81-387; OAG 83-139; 12-ORD-104. The Cabinet did not err in denying Ms. Taylor's request for the minutes of its closed session deliberations, but was obligated to provide her with copies of those portions of the minutes reflecting discussions that could and should have occurred in open session.
Turning to Ms. Taylor's request for a copy of the Kentucky Unemployment Insurance Digests for 2009, 2010, 2011, 2012, and 2013, we find that the Cabinet did not violate the Open Records Law if, in fact, the "Kentucky Unemployment Compensation Laws and Regulations 2012" previously disclosed to her is identical to the "Unemployment Insurance Digest" mandated by 787 KAR 1:110 Section (6). That regulation states:
(6) Precedent decision process and digest.
a. The Kentucky Unemployment Insurance Commission shall develop, distribute, and maintain a manual or digest containing all precedent decisions currently valid.
b. Individual decisions shall be available on request without charge.
In conducting our research for this appeal, we located KRS 341.150. That statute requires the Secretary of the Cabinet to "cause to be printed for distribution to the public the text of this chapter, the secretary's regulations and general rules, his annual report to the Governor, and any other materials he deems relevant and suitable, and shall furnish the same to any person upon application therefor." Ms. Taylor indicates that the publication previously disclosed to her by the Cabinet did "not contain the precedent decisions." This lends support to her view that the "Laws and Regulations" released to her in response to an earlier request may not be the 787 KAR 1:110(6) precedent decisions digest but may instead be the publication required by KRS 341.150. The Cabinet must, therefore, confirm that the "Kentucky Unemployment Compensation Laws and Regulations, 2012 Edition" and the 2012 "Kentucky Unemployment Insurance Digest" are one and the same. If not, the Cabinet must furnish Ms. Taylor with a copy of the latter.
If the "Laws and Regulations" and the "Digest" are one and the same, the Cabinet is not obligated to provide Ms. Taylor with a duplicate copy. This office has consistently recognized that an agency is not "required to satisfy an identical request a second time in the absence of some justification for resubmitting the request." 95-ORD-47, p. 6, cited in 01-ORD-018. If already provided, its refusal to provide the publication again does not constitute a violation of the Open Records Act. Nor does its inability to provide her with copies of digests for the years 2009, 2010, 2011, and 2013. In each of these years no digests were produced. Whatever the reasons for the nonexistence of these digests, the Cabinet cannot afford Ms. Taylor access to records that do not exist. It discharged its duty under the statute by promptly advising her that no digests for the referenced period exist other than the 2012 Digest already released to her. See 07-ORD-105 (and authorities cited therein).
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:
Antoinette C. TaylorJames C. Maxson
Footnotes
Footnotes
1 Ms. Taylor's request was dated August 4, 2013. She requested the minutes of the August 2013 meeting. That meeting was conducted on August 27, 2013, and the minutes were "completed" on September 17, 2013. The Cabinet was not obliged to honor a prospective request for a record not yet in existence and its initial refusal to do so did not constitute a violation of the Open Records Act. See, e.g., 06-ORD-171 (recognizing that a public agency is not obligated to honor a prospective request for a currently nonexistent record and citing 99-ORD-155). Nevertheless, the Cabinet subsequently afforded Ms. Taylor access to the August 2013 meeting minutes, after masking information relating to unemployment insurance cases other than her own, under authority of KRS 341.190(3)(b).
2 787 KAR 1:110 Section (6) requires the Cabinet to "develop, distribute, and maintain a manual or digest containing all precedent decisions currently valid." The regulation makes no reference to a compilation of "Laws and Regulations."
3 KRS 341.190(3)(b) states:
A claimant or employing unit or his legal representative shall be provided, upon request, information and records maintained by the cabinet in the administration of his claim, his reserve account, his reimbursing employer account, or any proceeding under this chapter to which he is a party[.]
4 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.)
5 The Unemployment Insurance Commission is a public agency as defined at KRS 61.805(2)(d) and (e) for open meetings purposes. Nothing in Chapter 341 exempts the Commission from the application of the Open Meetings Act.
6 The Cabinet relies on KRS 341.190(3) as support for this position but does not correlate the statute to one or more of the exceptions to the Open Meetings Act codified at KRS 61.810(1)(a) through (m). Although this issue is not before us, we suggest that the Cabinet consider the applicability of KRS 61.810(1)(j) and(k) to its discussions of unemployment insurance cases.
7 No specific case or individual applicant is identified in either "approval."