Opinion
Opinion By: Andy Beshear, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Gallatin County Airport Board ("Board") violated the Open Records Act in its disposition of Michael Murphy's request mailed October 24, 2019, for a schedule of all regular meetings for 2018 and 2019, all meeting minutes for 2018 and 2019, and "[a]ll Contracts with consulting companies working for the Gallatin County Airport Board." For the reasons that follow, we find that the Board partially violated the Act.
On October 30, 2019, the Gallatin County Judge/Executive's office responded to Mr. Murphy's request on behalf of the Board, providing the minutes of the two meetings the Board had held up to that time, and stated: "Going forward, the meetings will be held on the second Tuesday of the month at 10:00 a.m., at City of Warsaw Old Dunnies Building, 303 E. Main St., Warsaw, KY 41095." Mr. Murphy also received a letter regarding an "Independent Fee Estimate [for services] from PDC Consultants for the Grading & Drainage," which the Judge/Executive's office indicated "has been accepted by the FAA and the Judge Executive."
This office received Mr. Murphy's appeal on November 12, 2019. In his letter of appeal, he argued that the Board had given him "no schedule of regular meetings for the year [ sic ] of 2018 to 2019, or reason for no schedule," nor had the Board given him "the consulting contract and the contract from Integrated Engineering Inc.," both of which were referenced in the "Independent Fee Estimate" letter.
On November 19, 2019, in response to the appeal on behalf of the Board, the Gallatin County Attorney explained that "[t]here was no need for [regular] meetings until the funding became available," but "[n]ow that the funding is in place regular meetings are necessary," and the Board had provided Mr. Murphy with that schedule. We note that KRS 61.820(2) requires "all public agencies" to "provide for a schedule of regular meetings" that "shall be made available to the public." While it is questionable whether the lack of funding was a sufficient reason for the Board not to have adopted a regular meeting schedule in the past, it is evident that the Board provided Mr. Murphy its only existing regular meeting schedule, as well as all the responsive meeting minutes that existed. Accordingly, those portions of the appeal are moot.
As to Mr. Murphy's request for all consulting contracts, the Board stated in its response that "[n]either the Gallatin County Judge's office nor the Gallatin County Airport Board had a copy of" the contract with PDC Consultants: "Maybe they should have but they did not until yesterday November 18th when they received it from (PDC) the consultant yesterday by email." As the Board provided that contract to Mr. Murphy on November 19, 2019, this appeal has also become moot as to that document.
Nevertheless, in both its initial response to the request and its response to the appeal, the Board failed to address the contract with Integrated Engineering, Inc. In the "Independent Fee Estimate" letter, dated March 25, 2019, the Gallatin County Judge/Executive informed the Federal Aviation Administration: "To properly evaluate the cost of professional services, an independent fee estimate (IFE) was performed as part of the cost analysis for the contract. We have hired the services of Integrated Engineering, Inc. of Lexington, KY to assist us in determining and/or negotiating a fair and reasonable price with our consultant [PDC Consultants]."
From the description of its services, Integrated Engineering, Inc., would appear to have been a "consulting compan[y] working for the Gallatin County Airport Board" within the meaning of Mr. Murphy's request. Therefore, its contract would be responsive to the request. The Board did not deny that the contract was responsive, nor did it assert any other basis for not providing the contract to Mr. Murphy. As the public agency bears the burden of proof to sustain its action under KRS 61.880(2)(c), we conclude that the Board violated the Open Records Act by failing to provide Mr. Murphy a copy of the contract with Integrated Engineering, Inc.
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.