January 30, 1997

In re: Odell Mann/Piner-Fiskburg Fire Protection District

Open Records Decision

This matter comes to the Attorney General on appeal from the Piner-Fiskburg Fire Protection District's handling of an open records request submitted by Odell Mann. On December 9, 1996, Mr. Mann submitted a written request to the secretary of the fire protection district in which he asked for a copy of the audio tape of the district's December 2, 1996, special meeting. He indicates that he received no response to this request, and therefore initiated this open records appeal.

Upon receipt of this office's notification of appeal, Michael A. Duncan, attorney for the Piner-Fiskburg Fire Protection District responded to Mr. Mann's appeal. Relying on KRS 61.878(1)(g), now codified and hereinafter referred to as KRS 61.878(1)(i), and OAG 91-49, Mr. Duncan argued that the tape was made by the Board of Trustee's secretary as an aid in preparing the minutes of the meeting, and is exempt from public inspection as “preliminary drafts or notes.” Mr. Duncan also offered an explanation for the district's failure to respond to Mr. Mann's request. He indicated that the board's secretary did not discover the request, which had been affixed to the front door of his home, until after the December 9 meeting, at which Mr. Mann obtained a copy of the minutes of the December 2 meeting. The secretary therefore assumed that the request had been satisfied, and did not respond.

We are asked to determine if the Piner-Fiskburg Fire Protection District violated the Open Records Act in its handling of Mr. Mann's request. For the reasons set forth below, and upon the authorities cited, we conclude that, although mitigated by an apparent misunderstanding, the district's failure to respond constituted a procedural violation of the Act. We also conclude that the district's reliance on KRS 61.878(1)(i), and OAG 91-49, was misplaced, and that it erred in withholding the audio tape of its December 2, 1996, special meeting.

We begin by noting that 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 agency action.

To the extent that the Piner-Fiskburg Fire Protection District failed to respond in writing, and within three business days, to Mr. Mann's request, we find that the district violated this provision. We further find that this violation is mitigated by the misunderstanding described in Mr. Duncan's letter. We nevertheless urge the district to review the cited provision to insure that future responses conform to the Open Records Act, and to issue a written response to every open records request, within three days, either confirming release of, or denying access to, the requested records.

Turning to the substantive issue in this appeal, we conclude that the Piner-Fiskburg Fire Protection District improperly relied on KRS 61.878(1)(i), and OAG 91-49, in denying Mr. Mann's request for the audio tape of its December 2 special meeting. In a recent open records decision, the Attorney General addressed the question whether audio tapes made of public meetings for the purpose described must be made available for public inspection. Answering this question in the affirmative, in 97-ORD-4 we observed:

The term “public record” is defined at KRS 61.870(2) as:

[A]ll books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency.

In OAG 92-111, this office departed from an earlier line of opinions and held that an audio tape of a public meeting “falls squarely within the parameters of the definition, and must also be treated as a public record if the tape is prepared, owned, used, or in the possession of the public agency and is made at the direction of the agency.” OAG 92-111, p. 2. Acknowledging that we had previously held that an agency need not release audio tapes of its meeting because the tapes were of a preliminary character and “incident to the preparation of its official minutes,” our analysis of authorities from other jurisdictions, coupled with the strong Open Records Act policy favoring disclosure, led us to conclude that the tape “may not properly be treated as a preliminary document, but should be made available to the public upon request.” See also, 93-ORD-34; 94- ORD-44; compare, 92-ORD-1058; 93-ORD-105.

97-ORD-4, p. 2, 3.

In a footnote, we issued the following precautionary note:

We do not mean to suggest that an agency is required to make and keep on file a recording of its public meetings under the Open Records Act. Nor do we mean to suggest that a secretary or clerk who personally purchases a tape and records the meeting on his or her own initiative to assist in the preparation of the minutes, must release the tape for public inspection. Under these circumstances, the tape could not be treated as a public record, but would instead be considered the clerk's personal property. See e.g., OAG 83-194 (holding that a copy of a deposition prepared by a stenographer is not a public record). Our holding is limited to those instances when the agency directs that a tape is made of its public meeting, for whatever purpose, and that tape is purchased with agency funds. OAG 79-333, OAG 87-44, OAG 88-32, OAG 89-93, and OAG 91-49, modified accordingly.

Nothing in this opinion should be construed to modify our previous holdings on tapes or minutes of executive or closed sessions of public [meetings].

97-ORD-4, footnote 1, page 3, quoting OAG 92-111 at p. 4. There is nothing in the record that suggests that the disputed tape was not made at the district's direction, and purchased with district funds. We therefore believe that 97-ORD-4, and the authorities cited therein, is controlling. The Piner-Fiskburg Fire Protection District is directed to provide Mr. Mann with a copy of the audio tape of its December 2, 1996, special meeting.

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 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.

A. B. Chandler III

Attorney General

Amye L. Bensenhaver

Assistant Attorney General


Distributed to:

Odell Mann

3265 Rich Road

Morningview KY 41063

Robert Wehner

Piner-Fiskburg Fire Protection District

1962 Brach Piner Road

Morningview KY 41063

Michael A. Duncan

Ziegler & Schneider

200 Covington Mutual Building

629 Madison Avenue

Covington KY 41011