NOT TO BE PUBLISHED 

March 16, 1993

93-ORD-34

IN RE: Lynne H. Wornall/Bourbon County Board of Adjustment

OPEN RECORDS DECISION

This matter comes to the Attorney General on appeal from the actions of the Bourbon County Board of Adjustment relative to Ms. Lynne Wornall's request to inspect and duplicate the audio tapes of the Board's January 28, 1993, special meeting. Ms. Wornall, a staff writer for the Bourbon Times, indicates that she hand-delivered a written request to inspect the tapes to Mr. Mark Stewart, Planning and Zoning Administrator, on February 24, 1993. In a letter dated February 25, 1993, Mr. Stewart advised Ms. Wornall that her request was "being analyzed," and that the tapes were being held in the city vault.

At their Monday, March 1, 1993, meeting, the Board went into closed session with its attorney, Roger Michael, to discuss "a criminal investigation." Upon reconvening in open session, the Board voted to deny Ms. Wornall's request. On Tuesday, March 2, Mr. Stewart denied Ms. Wornall's request for a written explanation of the Board's decision.

Ms. Wornall expresses the belief that the Board of Adjustment "went into closed session illegally." Moreover, she asserts that the Board and its attorney are willfully concealing public records with the intent to violate the Open Records Law, "thereby committing a misdemeanor under KRS 61.991." She asks that we issue a decision consistent with these views.

For the reasons set forth below, we conclude that the Bourbon County Board of Adjustment violated the Open Records Law by failing to issue a written response to Ms. Wornall's

request within three business days, and failing to cite a specific exception to the law authorizing nondisclosure of the tapes or briefly explain how the exception applies to the records withheld. We also find that the Board's refusal to release the tapes for inspection and duplication constitutes a violation of the Open Records Law. We do not decide the Open Meetings issues raised in this appeal since these issues were not properly presented to this Office.

KRS 61.880(1) sets forth procedural guidelines for agency response to an open records request. That statute provides:

The Bourbon County Board of Adjustment violated the Open Records Law to the extent that it failed to issue a written response to Ms. Wornall's request within three business days, advising her of its decision to deny her request. The Board also erred in failing to cite the specific exception to the Open Records Law authorizing nondisclosure, and failing to briefly explain how the exception applies to the record withheld. Although the Board orally notified Ms. Wornall of its decision, such notice does not satisfy the express requirements of the statute. Nor does it provide a written record for this Office to review in the event that the decision is appealed. We urge the Board to review the relevant

provisions of the Open Records Law to insure that future responses conform to the Law.

Turning to the substantive issue raised in this appeal, we find that the Bourbon County Board of Adjustment improperly denied Ms. Wornall's request to inspect and duplicate the audio tape of its January 28, 1993, special meeting. In OAG 92-111, a copy of which is attached, we addressed the issue of whether a tape prepared at the direction of a public agency and purchased with agency funds was subject to public inspection. We answered that question in the affirmative, holding that if an agency elects to make a tape recording of its public meetings, and that tape is owned, used, or in its possession, it must be made available to the public upon request. We believe that OAG 92-111 is dispositive of the present appeal. The Bourbon County Board of Adjustment is directed to promptly arrange for Ms. Wornall to inspect and copy the tape.

Finally, we decline to render a decision on the Open Meetings issue raised in the 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 Acts, 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 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.

Ms. Wornall 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. Wornall and the Bourbon County Board of Adjustment may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.

CHRIS GORMAN

ATTORNEY GENERAL

AMYE B. MAJORS

ASSISTANT ATTORNEY GENERAL

sjj/347

Distributed to:

Mr. Mark J. Stewart

Zoning Administrator

Bourbon County Joint

Planning Commission

Bourbon County Courthouse

Paris, Kentucky 40361

Ms. Lynne Wornall

Bourbon Times

P.O. Box 777

Paris, Kentucky 40361