Request By:
Ms. Betty R. Daigrepont
City of Middletown
Post Office Box 43048
Middletown, Kentucky 40253
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Amye B. Majors, Assistant Attorney General
Mrs. Margaret Gerhart has appealed to the Attorney General pursuant to KRS 61.870 et seq. , the Open Records Law, your denial of her request for access to "the tape recording (s) of the City of Middletown Town Meeting held on October 4, 1990." Ms. Gerhart submitted her request on March 4, 1991. On that date, you provided her with a copy of the "approved minutes" of the meeting, but refused to permit her to listen to the tapes which were made to assist you in preparing the minutes. In a letter dated March 7, 1991, you issued a formal denial to Mrs. Gerhart, advising her that the tapes were exempt under authority of KRS 61.878(1)(g), KRS 61.878(1)(a), and OAG 89-93. You explained that the tapes were preliminary in nature, and were used as an aid in preparing the official minutes. Moreover, you expressed the belief that the tapes contained private conversations of persons within range of the tape recorder. Ms. Gerhart has requested that this office review your denial.
OPINION OF THE ATTORNEY GENERAL
It is the opinion of the Attorney General that your denial of Mrs. Gerhart's request was proper under the Open Records Law. KRS 61.878 provides, in relevant part:
(1) The following public records are excluded from the application of KRS 61.870 to 61.884 and shall be subject to inspection only upon order of a court of competent jurisdiction:
. . .
(g) Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency . . . .
This provision has been interpreted to mean that written notes, shorthand notes or tape recordings made during a meeting solely to assist the agency's clerk in preparing the official minutes are preliminary records and may be withheld from public inspection. OAG 79-333; OAG 88-93 (Copies enclosed). Thus, we have stated:
The public is not entitled to inspect or copy a tape recording of [an agency's] meeting as such a tape constitutes a preliminary draft or preliminary notes.
OAG 87-44. Inasmuch as KRS 61.878(1)(g) authorizes the withholding of the tapes, we need not decide whether they are also exempt under KRS 61.878(1)(a). Inspection was properly denied.
You have furnished Mrs. Gerhart with a copy of the approved minutes of the October 4, 1990, meeting as required by KRS 61.835. Your actions were entirely consistent with the Open Records Law. Mrs. Gerhart is so advised by sent a copy of this opinion, and has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5).