Request By:
Mr. Arthur Hatterick, Jr.
Executive Director and Secretary
Kentucky Personnel Board
Room 372, Capitol Annex
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
Alex F. Talbott, Esq. has appealed to the Attorney General pursuant to KRS 61.880 the Personnel Board's denial of his request to obtain a copy of the tapes of a hearing conducted by a hearing officer of the Personnel Board. He describes the tapes in question as the hearing tapes made in connection with the appeal of Iona Burton to the Personnel Board, the hearing having been held on December 9, 1985, and January 7, 1986. Mr. Talbott's letter to you was dated February 12, 1986.
In his letter of appeal to this office dated February 24, 1986, Mr. Talbott said in part that on or about February 19, 1986, Ms. Marlene Rutherford of the Personnel Board's staff advised him that he would have to contact the reporter-stenographer for the Personnel Board, Ms. Libby Graham, relative to obtaining a copy of the hearing tapes in question. Apparently there was no written reply from the Personnel Board to Mr. Talbott concerning his letter of February 12, 1986. See KRS 61.880(1) whereby a public agency is required to respond in writing to a request for records.
According to Mr. Talbott he telephoned Ms. Graham who advised him that she had made a copy of the hearing tapes available to the hearing officer but that copy would be erased as soon as he filed his report. Mr. Talbott was unable to get a copy of the original tapes made by Ms. Graham.
This office, at the request of the undersigned Assistant Attorney General, received on March 4, 1986, a copy of your letter to Mr. Talbott dated February 28, 1986. Your letter was in response to Mr. Talbott's letters of February 21, 1986, and February 26, 1986, copies of which letters have not been seen by the undersigned. While we do not know precisely what caused your letter to be written, it does deal with the availability of the hearing tapes, the procedures to be followed to acquire copies of those tapes, whose responsibility it is to provide the copies of the tapes and it apparently represents the position of the Personnel Board on those matters.
Your letter of February 28, 1986, states that the Personnel Board does not employ court reporters on a full time basis but, rather, contracts with them to provide their services to the parties involved. You state that the record of the hearing is the court reporter's work product and the right to provide that work product is a property interest. You refer to KRS 18A.100(2) and 101 KAR 1:130, Section 8 (5) relative to the procedure to follow to secure a copy of the hearing tapes. It is your opinion that even though the request for the tapes is to be made to the Board, payment shall be made to the court reporter for services rendered in copying the tapes. You, therefore, referred Mr. Talbott to Ms. Graham, the person who taped the hearing. In your letter you also authorized Ms. Graham to provide Mr. Talbott with a copy of the hearing tapes in question at his expense. You denied that the Board's regulations require that tapes of a hearing be presented to the Board.
The undersigned talked by telephone with Ms. Graham on March 6, 1986. While she admitted that she had advised Mr. Talbott that she would not furnish him with a copy of her original hearing tapes, she would do so now pursuant to the directive set forth in your letter of February 28, 1986.
OPINION OF THE ATTORNEY GENERAL
Since we are not dealing with court records and records that are under the custody and control of the court system [See KRS 26A.200, KRS 26A.220 and the case of Ex Parte Farley, Ky., 570 S.W.2d 617 (1978)], the Open Records Act is applicable to the fact situation presented. The matter that generated the request to obtain a copy of a record is a case pending before the Personnel Board or at least it was pending before the Board when Mr. Talbott made his request.
It seems clear that the Personnel Board is a "public agency" as that term is defined in KRS 61.870(1) of the Open Records Act. Note the definition of the term "public records" as that term is defined in KRS 61.870(2) of the Open Records Act.
"' Public records' means all books, papers, maps, photographs, cards, tapes, discs, recordings or other documentary materials regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency. 'Public record' 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." (Emphasis supplied).
In your letter you cited KRS 18A.100(2). That statute would not appear to be applicable here as the statute deals with the appeal of the Board's decision to circuit court and the furnishing of a copy of the transcript of evidence. This matter has not been appealed to the circuit court and a copy of the hearing tapes rather than a transcript of evidence has been requested.
Your letter cites a section of the Kentucky Administrative Regulations, 101 KAR 1:130, Section 8(5) which provides as follows:
"At any time after a hearing either party may request a copy of the stenographic or mechanical recording of the evidence presented at the hearing. Such request shall be in writing to the board. Any party requesting such record shall bear the expense of preparing the copy of the record. Payment for the stenographic or mechanical recording copy shall be tendered by certified check or money order prior to the preparation of said copy, and, in the case of an appointing authority may be tendered by interaccount voucher. "
Although the regulation provides that the request shall be made to the Board, you say the Board's position is that the check is to be made payable to the reporter or stenographer for the services rendered by her. If, however, the services were to be rendered by the reporter or stenographer, then why does the regulation state in part that an appointing authority may pay for a stenographic or mechanical recording by means of an account voucher? The account voucher system would normally be utilized by two governmental agencies not by a governmental agency and a private party.
Finally there is a section of the Kentucky Administrative Regulations which was not cited in your letter. 101 KAR 1:130 Section 8(3) states in part as follows:
" . . . A stenographic record or other mechanical recording shall be made of the evidence presented at such hearing. In all such cases, upon the conclusion of the hearing, the hearing officer shall submit to the board the stenographic or mechanical record of the evidence presented, his findings of fact, and dispositive recommendations in the case before him, and the executive director shall transmit to both parties a copy of the findings of fact and dispositive recommendations. The board upon review of the findings of fact, stenographic or mechanical recording of the evidence presented, and dispositive recommendations of the hearing officer, and after consideration of such written exceptions and responses thereto as the parties have presented, as a matter of right and such written or oral arguments as the parties may present by leave of the board, shall make a final determination of the appeal by either: . . ."
Thus, the Board's own regulations require that a stenographic record or other mechanical recording be made of all evidence presented at the hearing conducted by the Board's hearing officer and that after the conclusion of the hearing such record or recording must be included among the items submitted by the hearing officer to the Board. When the record or recording is submitted to the Board pursuant to its regulation the record or recording then becomes a public record under KRS 61.870(2) as it is an item in the possession of or retained by a public agency. Furthermore, it has been prepared at the direction of the public agency's regulation and it is supposed to be used by the public agency in the public agency's review of the case.
It is therefore the opinion of the Attorney General that the public agency (the Personnel Board) improperly denied the request, made under the Open Record Acts, to the Board to inspect and copy the hearing tapes of a hearing conducted by the Personnel Board, to the extent that the request was made after the hearing tapes had been submitted to the Board pursuant to its regulations and while those tapes were in the possession of or retained by the Board.
As required by statute, a copy of this opinion is being sent to the requesting party, Mr. Talbott. If you decide not to comply with the terms of this opinion, you may institute proceedings to challenge it in circuit court pursuant to KRS 61.880(5).