Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Henderson County Fiscal Court ("Fiscal Court") violated the Open Records Act in its disposition of Patricia Kushino's request for electronic copies of the Fiscal Court's meeting minutes where those records exist only in hard copy format. For the reasons stated below, we find that the Fiscal Court did not violate the Act in refusing to convert hard copy records to electronic format, but must produce those portions of draft meeting minutes that may exist on Fiscal Court computers that were adopted as part of final meeting minutes.
On June 27, 2018, Patricia Kushino ("Appellant") submitted her request to the Fiscal Court for "electronic copies of public records of the Henderson County Fiscal Court Meeting Minutes for January 2010 thru August 30, 2016. . . ." The Fiscal Court responded to her on that same day, stating that electronic records of the Fiscal Court's meeting minutes were only available from September 2016. The Fiscal Court explained that the meeting minutes prior to September 2016 were only in hard copy format. The Fiscal Court further advised Appellant:
The staff depends on the hardcopies published in the order books located here in the courthouse since each book is indexed. Any computerized files that we may have stored locally prior to September 2016 are not official published minutes and are only considered work copies since they may not include attachments or signatures.
Appellant then instituted her appeal with this office by letter dated July 19, 2018, stating: "I feel that the computerized files of the Fiscal Court Minutes should be available to the public as they are no longer preliminary since the Minutes have been published in the order books."
On appeal, Steve Gold, Henderson County Attorney, responded on behalf of the Fiscal Court. The response reiterated that the Fiscal Court Minutes, prior to September 2016, are available in hard copy only. The Fiscal Court stated that, since September 2016, the approved minutes have been scanned and uploaded to the county website, as well as being kept in the Minutes Books. The response from the Fiscal Court further stated that:
The draft minutes prepared by the Henderson Fiscal Court Clerk are not final and, to the extent that they may still be on the computer of the current Clerk or his predecessor, will not include any hand-written amendments, signatures or attachments. Such files are clearly exempt under the Open Records Act per KRS 61.878(1)(i) as "[p]reliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency. " 1
Analysis . The initial request appears to presume that the Fiscal Court possesses meeting minutes from January 2010 through August 2016 in electronic format. The Fiscal Court properly answered that request by explaining that it did not have those records in electronic format. To the extent that Appellant may have been requesting the Fiscal Court to convert its hard copy records to electronic format to satisfy the request, we find no violation.
In 99-ORD-38, this office addressed an almost identical situation. There, the requester asked for "currently effective and valid" city ordinances, resolutions, municipal orders and executive orders in electronic format from the City of Fort Mitchell. The City maintained those records in hard copy format only and denied the request. We began our analysis in 99-ORD-38 by parsing the language of the pertinent open records provision, KRS 61.874(2)(a):
Nonexempt public records used for noncommercial purposes shall be available for copying in either standard electronic or standard hard copy format, as designated by the party requesting the records, where the agency currently maintains the records in electronic format. Nonexempt public records used for noncommercial purposes shall be copied in standard hard copy format where agencies currently maintain records in hard copy format. Agencies are not required to convert hard copy format records to electronic formats.
We recognized that "if nonexempt records exist in both standard electronic and standard hard copy format, the public agency must permit inspection of and copying in the format requested by the requester. " 99-ORD-12, p. 6. Continuing, we recognized that the obvious corollary of this position is that if the nonexempt records exist in only standard hard copy format, the agency must permit inspection of, and copying in, that format. We concluded that KRS 61.874(2)(a) firmly establishes that "agencies are not required to convert hard copy format records to electronic format. " We find no violation by the Fiscal Court in refusing to convert the hard copy meeting minutes into electronic format to provide to Appellant.
We next address the issue clarified upon appeal, namely, whether Appellant's request encompassed draft minutes that may exist on Fiscal Court computers, and, if they exist, whether such drafts were properly denied.
We interpret Appellant's initial request as being sufficiently broad enough, as clarified in the record on appeal, to include the draft minutes that may exist on the Fiscal Court's computers. The Fiscal Court's position is that those draft minutes, if they exist, are excluded from disclosure pursuant to KRS 61.878(1)(i) as preliminary drafts. KRS 61.878(1)(i) excludes "[p]reliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency [.]" However, drafts lose their preliminary character to the extent that they are adopted as the basis of final action. See
Univ. of Kentucky v. Courier-Journal & Louisville Times Co., 830 S.W.2d 373, 378 (Ky. 1992) ("materials that were once preliminary in nature lose their exempt status once they are adopted by the agency as part of its action"); 01-ORD-83 (records that form a basis for final action are regarded as adopted).
In 01-ORD-47, we summarized the manner in which "preliminary" records under KRS 61.878(1)(i) and (j) may retain or lose their exemption after final agency action is taken:
Until final administrative action is taken, or a decision is made to take no action, the requested records are protected by KRS 61.878(1)(i) and (j). If the records are adopted as part of that final action, they will forfeit their preliminary characterization. If not adopted, they will retain their preliminary character.
A record "is adopted as the basis of final action insofar as the final action 'necessarily stem[s] from' that document." 10-ORD-034 (quoting
City of Louisville v. Courier-Journal and Louisville Times Co., 637 S.W.2d 658, 659, 660 (Ky. App. 1982)). It is not necessary that the record be explicitly adopted or incorporated by reference, so long as it constitutes the basis for the final agency action. "In our view, the courts purposefully employed the broader concept of "adoption" rather than "incorporation," relative to preliminary investigative reports and records, to avoid a narrow, legalistic interpretation." 01-ORD-83 (citing City of Louisville, supra).
Thus, the electronic draft meeting minutes that may exist on the Fiscal Court's computers, to the extent they were adopted as part of the final meeting minutes, no longer qualify under KRS 61.878(1)(i) as preliminary records. We find that Appellant's request, as clarified on appeal, encompasses the electronic draft meeting minutes that may exist on the Fiscal Court's computers.
Under the standard for an adequate search recognized in 95-ORD-96, 2 we find that the Fiscal Court must "make a good faith effort to conduct a search [for the postulated electronic draft minutes] using methods which [could] reasonably be expected to produce the records requested." The Fiscal Court must then determine whether the drafts, in part or in whole, have been adopted as the basis for final meeting minutes. To the extent that the draft meeting minutes, in electronic format, have been adopted into the final meeting minutes, they must be provided to Appellant in electronic format.
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 The Fiscal Court's initial response stating that the "computerized files. . . are not official published minutes. . . [,]" failed to cite the exception upon which it was relying to deny these records. KRS 61.880(1) provides, in pertinent part: "An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action." As the Fiscal Court rectified this error upon appeal, we will not further belabor the matter.
2 In 95-ORD-96, we stated:
[T]he Attorney General has never articulated a standard by which to measure the adequacy of an agency's search for public records. In our view, the Open Records Act does not require an agency to conduct "an exhaustive exhumation of records," Cerveny v. Central Intelligence Agency, 445 F. Supp. 772, 775 (D. Col. 1978), or to embark on an unproductive fishing expedition "when the likelihood of finding records that fall within the outermost limits of the zone of relevancy is slight." In re Agent Orange Product Liability Litigation, 98 F.R.D. 522, 529 (E.D. N.Y. 1983). It is, however, incumbent on an agency "to make a good faith effort to conduct a search using methods which can reasonably be expected to produce the records requested." Cerveny, supra at 775. Thus, the agency must expend reasonable efforts to identify and locate the requested records. And, if the documents do exist, and the public agency cannot locate them, the agency's "good faith [sh]ould not be impugned unless there was some reason to believe that the supposed documents could be located without an unreasonably burdensome search." Goland v. Central Intelligence Agency, 607 F.2d 339, 353 (D.C. Cir. 1979). In assessing the adequacy of an agency search, we "need not go further to test the expertise of the agency, or to question its veracity when nothing appears to raise the issue of good faith." Weissman v. Central Intelligence Agency, 565 F.2d 692, 697 (D.C. Cir. 1977).