Request By:
Mr. Jon L. Fleischaker
Wyatt, Grafton & Sloss
Twenty-Eighth Floor
Citizens Plaza
Louisville, Kentucky 40202
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Carl Miller, Assistant Attorney General
As attorney for the Courier-Journal and Louisville Times Company, you have appealed to the Attorney General under KRS 61.880 the denial of the inspection of documents by Alderman David Banks of the City of Louisville. The documents are described as "any letter or correspondence between you and U.S. Attorney General Griffin Bell regarding Louisville Mayor William Stansbury and Capt. Larry Ogle, Louisville Division of Police." The request was denied by a letter signed by Walter R. Butt, III and Christina Heavrin, Attorneys for the Louisville Board of Aldermen. Reasons for the denial were stated in the letter as follows:
"1) The form of request and the person to whom it is addressed does not comply with the provisions of KRS 61.870 and C.G.O. 107.05.
2) The alleged document which you request is not a 'public record' pursuant to the provisions of KRS 61.870(2).
3) The alleged document which you request is excluded from the application of KRS 61.870 through 61.884 pursuant to the provisions of KRS 61.878(a) and/or (f) and/or (g)."
We believe that reason No. 2, stated above, is dispositive of this appeal, and we will therefore not discuss reasons 1 and 3.
A "public agency" under the Open Records Law is defined in KRS 61.870(1). The definition contains, inter alia, the following words: "'Public agency' means every state or local officer, . . . every county and city governing body, . . ."
An alderman is a "local officer" . However, an alderman is not an officer who may act independently of the Board of Aldermen. As was said in
Citizens National Bank's Trustee v. Loyall, 262 Ky. 39, 88 S.W.2d 952, 953 (1936):
"[A] municipality can function and speak only by its records, and is not bound by any promise or attempted commitment by the members of its counsel or board of trustees acting individually or collectively, except when in session as such body, and its journal speaks of such action."
On the face of the request the documents involved are letters between Alderman Banks and Attorney General Bell. There is no indication that the correspondence was authorized by a majority of the Board of Alderman while in session as such body and by action recorded in its minutes. We are, therefore, of the opinion that Alderman Banks undertook the correspondence as an individual and not on behalf of the governing body of the City. Based on that conclusion it is our opinion that the described documents are not public records within the meaning of the Open Records Law.
KRS 61.870(2) provides, inter alia,
"'Public records' shall not include any records owned by a private person or corporation that are not related to functions, activities, programs or operations funded by state or local authority. "
The description given of the documents requested in this case reveals only that they are in the form of correspondence and deal with Mayor Stansbury and Capt. Ogle. While the Attorney General has the authority under KRS 61.880(2) to request that the documents be sent to him for inspection in aid of issuing an opinioin, we believe that that is not necessary in this case because it appears to us from the information at hand that the correspondence is involved with the person of the Mayor and the Police Captain rather than to functions, activities, programs or operations funded by state or local authority, and, because, as we have stated above, we believe that an alderman can only operate as a private individual except when he is acting in a formal session of the board.
It is therefore the opinion of the Attorney General that subject documents may be withheld from public inspection under the Open Records Law.
A copy of this opinion is being sent to the above named attorneys of the Board of Alderman.