NOT TO BE PUBLISHED
March 20, 1995
In re: Bryan Smeathers/Muhlenberg County Board of Education
OPEN RECORDS DECISION
This appeal originated in the submission of a request to inspect public records by Mr. Bryan Smeathers, General Manager of WMTA-AM 1380, to the Muhlenberg County Board of Education. Mr. Smeathers, who is involved in a dispute with the Board centering on the authority of high school athletic directors to enter into binding contracts for the radio broadcast of high school basketball games, requested access to the document which notified the athletic directors that they did not have authority to enter into such contracts. On behalf of the Muhlenberg County Board of Education, Superintendent Harry Loy responded to Mr. Smeathers's request by advising him that "the last notice that no one other than the board had the authority to enter into contracts was given at a meeting of the principals on September 30, 1994."
In his letter of appeal, Mr. Smeathers identifies several issues relating to the validity of the contracts. These issues are not cognizable under the Open Records Act. The narrow issue presented in this appeal, and the only issue we will address, is whether the failure to record minutes of the meeting of principals on September 30 constitutes a violation of the Open Records Act. For the reasons set forth below, we conclude that this issue is not ripe for review under the Open Records Act. Until such time as it is determined that the group which met with the Superintendent is a public agency, within the meaning of KRS 61.805(2), and is thus required under KRS 61.835 to record minutes of actions taken at its meetings, this question cannot be resolved.
In a followup letter to this office, Superintendent Loy explained that the September 30 meeting at which this matter was discussed was a meeting of the Superintendent and the principals of local schools. Because he did not consider the group a public agency for purposes of the Open Meetings Act, no minutes were recorded. Hence, there is no document which satisfies Mr. Smeathers's request.
We begin by noting that KRS 61.880 sets forth the duties and responsibilities of a public agency relative to a request received under the Open Records Act. Subsection (1) of that provision requires that a public agency, upon receipt of a request for public records, respond in writing to the requesting party within three days of receipt of the request, and indicate whether the request will be granted. A response denying, in whole or in part, inspection of a record must include citation to the specific exception authorizing the nondisclosure of the record, and a brief explanation of how the exception applies to the records withheld.
Superintendent Loy substantially complied with this provision by responding in writing to Mr. Smeathers's request on the same day the request was received by his office. In responding to Mr. Smeathers's request for the document notifying athletic directors that they did not have authority to enter into contracts, he advised that notice was given at a meeting of principals on September 30. Although this statement was clearly intended to be responsive to the request, the Superintendent should have advised Mr. Smeathers that no minutes were taken at the meeting, and thus no record exists which satisfies his request. OAG 90-26.
Turning to the substantive issue in this appeal, we conclude that the question Mr. Smeathers raises is, in fact, an open meetings question. He asks whether the failure to record minutes of the September 30, 1994, meeting at which notice was given that only the board has authority to enter into contracts constitutes a violation of the Open Records Act. The threshold issue, in our view, is whether the body which met on September 30 is a "public agency" for purposes of the Open Meetings Act, and thus required to record minutes of actions taken at its meetings pursuant to KRS 61.835. This issue has not, however, been properly presented to this office, and is therefore not ripe for adjudication.
Persons seeking enforcement of the Open Meetings Act must first submit a written complaint to the presiding officer of the public agency suspected of violating the Act. KRS 61.846. 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 requirements 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.
Mr. Smeathers 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.
Mr. Smeathers and the Muhlenberg County Board of Education may challenge this decision by initiating action in the appropriate circuit court. 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 proceedings.
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
Superintendent Harry Loy
Muhlenberg County Board of Education
P.O. Box 167
Greenville, KY 42345
Mr. Bryan Smeathers
One WMTA Drive
Central City, KY 42330