Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Michael Murphy initiated this appeal by letter dated June 17, 2016, challenging the disposition by the City of Glencoe's Frontier Days Committee 1 ("Committee") of his June 13, 2016, request "under KRS 61.872 to 61.884 the right to inspection of public records" identified as follows:
1. All minutes from meetings that were held at a private residen[ce] for the upcoming 2016 Frontier Days festival [;]
2. A list of meeting dates, times and place where meetings were held for this year's festival [;]
3. All invoices, bills, [and] all correspondence and records of meetings for 2016.
"If permission is granted to inspect the above records," Mr. Murphy continued, "I may under KRS 61.874, request copies of part or all requested documents." 2
By letter dated June 13, 2016, Committee Chairperson Louise Hiles responded on behalf of the Committee, advising that she would "have all records of this years [sic] festival at City Council" when she was finished. Ms. Hiles further indicated that she posts the meeting dates on the Glencoe Frontier Days Facebook page. Enclosed with Ms. Hiles' written response, and included with Mr. Murphy's appeal, was a copy of what appears to be the "agenda" 3 for the Festival rather than any meeting of the Committee. Ms. Hiles advised that Committee meetings were held on March 21, 2016, April 25, 2016, and May 23, 2016, at 107 Collins Street, Glencoe, Kentucky. In his June 17, 2016, letter of appeal, Mr. Murphy advised that he received Ms. Hiles' response by certified mail on June 15, 2016, which included "two invoices, one agenda dated August 19-21, 2016 and a copy of my open records request along with a cover letter." 4 Mr. Murphy specifically alleged that the Committee violated KRS 61.872 in failing to permit him to conduct on-site inspection of all existing responsive public records instead of providing him with only "what the Committee deemed necessary." 5 Mr. Murphy is correct in this assertion.
The Attorney General has recognized that the "public has an absolute right to conduct on-site inspection of public records" and this provision of inspection is not "a courtesy extended to the public . . . subject to the terms and conditions dictated by the . . . public agency" but a right that finds ample support in the Act and the decisions construing it. 98-ORD-69, p. 3; 11-ORD-029 (reaffirming that with limited exception the Act gives the requester the authority to prescribe the method of access); 11-ORD-056. When a public agency provides a requester with an opportunity to inspect records, the "requester enjoys a corollary right to obtain copies" of those records upon receipt of payment. 02-ORD-168, p. 7, citing KRS 61.874(1) and OAG 89-40. See 10-ORD-154.
This office recently had occasion to reaffirm the validity of this principle in 16-ORD-016 (In re: Michael Murphy/Gallatin County Planning Commission, rendered February 5, 2016). Here, as in that case, Mr. Murphy asserted the right to inspect documents responsive to his request in order to determine whether he wished to request copies "of part or all of the requested documents," but was effectively denied this "absolute right" to conduct on-site inspection of the documents per KRS 61.872 when the Committee sent copies to him by mail. The analysis contained at pages 4-6 of 16-ORD-016 is dispositive of the question presented here; a copy of 16-ORD-016 is attached hereto for the parties' reference. The City of Glencoe and its Frontier Days Committee "violated KRS 61.872(1) and (2) by unilaterally treating Mr. Murphy's request to conduct on-site inspection of responsive records as a request for copies. Mr. Murphy retains the right to inspect nonexempt records that are responsive to his request, in suitable facilities provided by the [City.]" 16-ORD-016, p. 6.
Either party may appeal this decision by initiating action in the appropriate circuit court per 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
1 In 15-ORD-138 the City Attorney acknowledged that the Committee "'was formed by the City of Glencoe'" and it "'derive[s] 25% or more of its funds from the city." Given these facts, the Committee did not dispute that it can be properly characterized as a "public agency" for purposes of the Open Records Act. See KRS 61.870(1). This office noted in 15-ORD-138 that the City Clerk is the official custodian of City records, including those of the Committee, under KRS 83A.085(3)(b), but also recognized that the Chairperson was required to notify the requester of that fact per KRS 61.872(4). In that case, the City Attorney emphasized on appeal that the Chairperson had produced all responsive documentation that she had in her possession and reiterated that Mr. Murphy was "free...to arrange a meeting with the clerk of the City of Glencoe and inspect and copy any and all city records."
Mr. Murphy should have directed his current request to the City Clerk rather than the Chairperson. The Chairperson was not permitted to ignore the request upon receipt but could have properly forwarded it to the City Clerk. See Baker v. Jones, 199 S.W.3d 749 (Ky. App. 2006); 15-ORD-138. Given the lack of information provided regarding possession and management of Committee records, here, as before, this office encourages the City and its Committee to "take appropriate steps to ensure proper records management, retention, and access." 15-ORD-138, p. 3.
2 A public agency is not statutorily required to compile a list in order to comply with a request under the Act. See 09-ORD-145, pp. 8-9. The financial and operational records of a public agency are generally open for inspection. 05-ORD-065, p. 9. See OAG 76-648 (holding that "wherever public funds go, public interest follows"); OAG 82-169 (holding that "the contracts, vouchers, and other business records of a public agency are open to public inspection under the Kentucky Open Records Law"); OAG 90-30 (holding that "amounts paid from public coffers are perhaps of uniquely public concern"); 10-ORD-140.
3 The document is entitled "Glencoe Frontier Days ---- Agenda." Instead of a Committee meeting date, August 19-21, 2016, the dates on which the Festival is apparently scheduled, appear on the top of the page. Even assuming the Committee had asserted that its apparent failure to comply with KRS 61.820 was due to a lack of sufficient business to justify meeting on a regular basis, the fact remains that it was required, in the alternative, to " scrupulously comply" with all of the notice requirements for special meetings codified at KRS 61.823, including the posting of a meeting agenda, because every meeting is either a regular meeting or a special meeting. 15-OMD-033, p. 5 (citation omitted)(original emphasis).
4 Although Ms. Hiles characterized the list of meeting dates that she provided as "minutes," pursuant to KRS 61.835 the minutes of "action taken" at every meeting (as defined at KRS 61.805(1)) of any public agency (as defined at KRS 61.805(2)), "setting forth an accurate record of votes and actions taken 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." Accordingly, if the Committee failed to record minutes and make them publicly available, it violated KRS 61.835. See 06-ORD-145 (failure to produce minutes of committee meetings in response to request constituted a violation of KRS 61.835 as well as the Open Records Act); 14-OMD-029.
5 On June 22, 2016, this office issued a Notification to Agency of Receipt of Open Records Appeal to Ms. Hiles, the City Clerk, and the City Attorney. Both attempts to notify the City Attorney (using two different addresses) were unsuccessful. However, the Notifications that were mailed to Ms. Hiles and the City Clerk, either of whom could have contacted the City's legal counsel for assistance in preparing a response, were not returned. This office did not receive any response to Mr. Murphy's appeal on behalf of the City or its Committee.