NOT TO BE PUBLISHED
September 14, 1993
IN RE: Carol White/Office of the Lyon County Judge/Executive
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the actions of the Lyon County Judge Executive, Terry McKinney, in responding to Ms. Carol White's May 14, 1993, request for a copy of the audio tape of the May 13 fiscal court meeting. Ms. White states that Judge McKinney denied her request, advising her that he had purchased the tape and the tape recorder with his own money. Ms. White was subsequently advised that she could obtain a copy of the minutes of the meeting from the fiscal court clerk's office. It is her position that she is entitled to a copy of the tape itself, since it contains "a verbatim transcript" of what took place at the meeting.
The issue presented in this appeal is whether the County Judge/Executive properly denied Ms. White's request. For the reasons set forth below, and assuming that Ms. White has fairly and accurately recounted the facts giving rise to this appeal, we conclude that Judge McKinney's response was technically deficient, but substantively correct.
KRS 61.880(1) sets forth procedural guidelines for agency response to an open records request. That statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day
period, of its decision. 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 action.
Judge McKinney violated the Open Records Act by failing to respond in writing to Ms. White's request. This violation is mitigated by the fact that he responded verbally. However, in the future, Judge McKinney should respond to such requests in writing, and within three business days, to avoid potential disputes about the identity of the records requested and his response, and to facilitate Attorney General review in the event that an appeal is filed.
Turning to the substantive issue in this open records appeal, we find that if, as Judge McKinney asserted, he purchased the tape which was used to record the May 13 fiscal court meeting, he properly denied Ms. White's request. In OAG 92-111, a copy of which is attached, this Office held that if an agency elects to make a tape recording of its public meetings, and the tape is purchased with agency funds, it must be made available for public inspection. See also, 93-ORD-34. The converse of this holding is, of course, that if a member of the agency purchases the tape with his or her own funds, it cannot properly be treated as a public record. In the latter case, the agency is not obligated to release the tape, but may satisfy its obligation by releasing the approved minutes of the meeting. Assuming Judge McKinney to have truthfully represented that he purchased the tape with his own money, we must conclude that he properly denied Ms. White's request.
Ms. White raises a number of questions relating to apparent violations of the Open Meetings Act. We decline to render a decision on these issues in the present appeal. The Kentucky Open Meetings Act (KRS 61.805 to KRS 61.850) was substantially amended by the 1992 Regular Session of the Kentucky General Assembly (1992 Act, Chapter 162, HB 16). That legislation, which became effective on July 14, 1992, includes provisions which must be followed before this Office can render a decision.
A new section of the Open Meetings Act (KRS 61.846) requires that a person seeking enforcement of the Act first
submit a written complaint to the presiding officer of the public agency suspected of violating the Act. The complaint must state the circumstances which constitute the alleged violation, and must state what the public agency should do to remedy the alleged violation.
The public agency is required to respond in writing within three business days after the receipt of the complaint, and notify the complaining party of its decision. An agency's response denying the complaint's requirement for remedying the alleged violation must include a statement of the specific statute or statutes supporting the public agency's denial and how that statute or statutes apply to the specific situation at hand.
If the complaining party wishes the Attorney General to review the public agency's denial, the complaining party must send the Attorney General a copy of his written complaint, and a copy of the written denial, within 60 days from the receipt by the complaining party of that written denial by the public agency. If the public agency refuses to provide a written denial, the complaining party must provide a copy of the written complaint to the Attorney General within 60 days from the date the written complaint was submitted to the presiding officer of the public agency. In his letter to the Attorney General the complaining party must include a written statement as to how the public agency failed to remedy the alleged violation.
Ms. White must follow the procedures outlined above and send this Office the required documents before we can treat the matter as an appeal under the Open Meetings Act and proceed to issue a decision.
Ms. White and the Lyon County Judge/Executive may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and 61.882.
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
Hon. Terry O. McKinney
Lyon County Judge/Executive
Eddyville, KY 42038
Ms. Carol Y. White
1650 Gregory Rd.
Eddyville, KY 42038