Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
David Cross appeals Bullitt County Judge/Executive Melanie J. Roberts' denial of his May 27, 2015, request to inspect:
the Informational Packet given to all Magistrates for consideration in conducting the June 2, 2015, Bullitt County Fiscal Court business, including, but not limited to, the Agenda of the Fiscal Court Meeting, Bills to be paid by the Fiscal Court, Treasurer's Transfer Report, any other record[s], document[s], necessary to conduct the business of the Magistrates for the Bullitt County Fiscal Court.
Mr. Cross asked to inspect the informational packet "on Friday, May 29, 2015, at 9:00 a.m. . . ."
Judge Roberts issued a timely written response, through counsel, 1 in which she explained the legal basis for denial of Mr. Cross' request.
First, at the time of your request, no such "Informational Packet" had been assembled, and such records did not exist and were not available for inspection. Second, the "Informational Packet" you reference contains preliminary documents, memos, proposals, etc. for review and consideration of the members of Fiscal Court at their upcoming meeting(s). There are instances where some of these matters are revised, are pulled from the Agenda, are tabled, or are not approved. These documents are not approved documents representing final action of the Fiscal Court. After action of the Fiscal Court, then any related documents evidencing said action become part of the official record and would be available for inspection and/or copying at either the County Clerk's Office and/or the Judge/Executive's Office.
Mr. Cross subsequently initiated this open records appeal, challenging the denial of his request for, among other things, bills presented to the magistrates in their agenda packets. He noted that copies of the packet, including bills, "are given to the local newspaper editor before the Fiscal Court Meeting and to other public officials sitting in the Fiscal Court Chambers along with the viewing public." 2
On appeal, Judge Roberts expanded on her position. Reiterating that Mr. Cross' request was a "prospective request for future records," she explained that the agenda packets given to members of the Fiscal Court:
are not provided to the media or any members of the public. The only other officials presented with these packets are those directly involved in the Fiscal Court meetings, such as the County Clerk and the County Attorney. No "other officials sitting in the Fiscal Court Chambers with the public citizens" are provided these packets.
A separate packet is prepared and generally picked up from the Judge/Executive's Office immediately prior to the beginning of the Fiscal Court meeting by the Editor of the Pioneer News (the only media member that regularly attends Fiscal Court meetings). This packet is separate from and contains different information/records than the Magistrates' packets. The packet provided to the media contains only those records not exempt from disclosure, and would certainly be open to inspection and copying by Mr. Cross or any other members of the public the morning of the Fiscal Court meeting when it is made available. However, Mr. Cross has never made a Request for this packet. He specifically made a prospective request for the packet provided to the Magistrates.
Noting that copies of the meeting agenda are always provided to members of the public in attendance, she maintained that many of the records to which Mr. Cross claimed he was denied access are not included in the agenda packet but are instead provided directly to the magistrates by other county officials, such as the county treasurer and the county clerk, and are publicly accessible through their offices upon submission of an open records request. We find no violation of the Open Records Act in the County Judge's response to Mr. Cross' appeal.
The Attorney General addressed a similar issue in 99-ORD-155, concluding that a public agency properly denied a prospective request for materials in an agenda packet provided to agency members before each agency meeting. At page 2 and 3 of that decision, we observed:
"Standing requests" for public records are not proper under the law, and need not be honored. Thus, in OAG 91-78, the Attorney General affirmed the actions of a public agency when it refused "to issue a blanket release of documents to be used by the [agency] in futuro." OAG 91-78, p. 4. We reaffirmed this position a year later when we stated that the office of Attorney General "has never recognized the validity of a standing request." OAG 92-30. See also, 95-ORD-43 (holding that a "standing request" for electronically stored records in the custody of the county clerk was deficient); compare, OAG 90-112 3 (holding that a request for all "automobile accident reports prepared by the Kentucky State Police Department, London Post, . . . for a period of four (4) weeks prior to the date of inspection period," specifically identified the records sought, and must be honored) . This line of authorities clearly supports the view that the Open Records Act regulates access to existing records only.
We concluded:
The right to inspect public records attaches only after.. .records have been prepared, owned, used, in the possession of, or retained by the [public agency] . No such right attaches for records which have not yet come into existence. Simply stated, the Open Records Act governs access to existing public records. To the extent that [the] request is prospective, the [agency] is not obligated to honor it.
99-ORD-155, p. 3 citing 99-ORD-110. On May 27, Mr. Cross requested that he be permitted to inspect agenda packets on May 29 for a meeting that was scheduled for June 2. Thus, he requested access to a record that had not yet been created and finalized. We affirm the County Judge's denial of the request for a record that did not yet exist. Accord, 06-ORD-171 (recognizing agency's right to deny request for "meeting packets" for future meetings); 11-ORD-132 (referencing with approval this line of decisions in the context of an open meeting dispute involving copies of agendas) .
We also affirm the County Judge's position that existing agenda packets may contain both exempt and nonexempt records, and that the Fiscal Court is not obligated to release the exempt records in the agenda packets if it meets its burden of proof in denying access to those records pursuant to KRS 61.880(1) and KRS 61.880(2)(c). At page 4 of 95-ORD-155, we observed:
Upon presentation of a properly framed request for existing [agenda packets] , it is incumbent on the [agency] to review the materials in the packets before issuing a blanket denial. If the packets contain material which is not excepted under KRS 61.878(1)(a) through [(n)], the agency must "separate the excepted and make the nonexcepted material available for examination." KRS 61.878(4). . . . Further, the [agency] must identify any records withheld and cite the exception upon which it relies in denying access. KRS 61.880(1). The [agency] is . . . obligated to provide particularized justification for the withholding of documents, or groups of documents, which are properly excludable, and to release any documents which do not fall squarely within the parameters of the exceptions and are therefore not excludable. " 97-ORD-41, p. 6, 7.
See KRS 61.878(4).
Clearly, Mr. Cross can access nonexempt records that originate in the offices of other county officials and that may or may not be included in the fiscal court agenda packet, by submission of an open records request to the official custodian of that county official's records. We trust that these nonexempt records, if included in the agenda packet, are also included in the "separate packet" created for the media. 4 Given the County Judge's commitment to make the "separate packets" available to Mr. Cross and others from this day forward, he should no longer have cause to challenge the dissemination of these packets.
Either party may appeal this decision 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.
Footnotes
Footnotes