Request By:
Ms. Neva L. Ward
City Clerk, City of Shepherdsville
170 Frank E. Simon Avenue
Post Office Box 400
Shepherdsville, Kentucky 40165
Opinion
Opinion By: Chris Gorman, Attorney General; Amye B. Majors, Assistant Attorney General
Ms. Judy Newsome has appealed to the Attorney General, pursuant to KRS 61.880, your denial of her June 1, 1992, request for access to the tape recordings of the Shepherdsville City Council meetings held on November 11 and 12, 1991, and January 13, 14, and 27, 1992. Ms. Newsome explains that she was unable to attend these meetings, and is not satisfied that the official minutes, with which you have provided her copies, accurately reflect what took place.
You denied Ms. Newsome's request in a letter dated June 2, 1992. Relying on KRS 61.878(1)(g), and prior opinions of this Office, you stated that the tapes "constitute preliminary drafts and notes that do not give notice of final action of a public agency. " It is your position that the tapes are "predrafts and notes from which the official minutes of the City Council Meetings are constructed."
Ms. Newsome asks that this Office review your denial of her request to determine if this action was consistent with the Open Records Act. Upon review, we conclude that although your actions were consistent with the Act, as well as prior opinions of this Office, a different view must be advanced regarding inspection of tape recordings of public meetings. To the extent that our previous opinions are inconsistent with this view, they are hereby modified.
OPINION OF THE ATTORNEY GENERAL
KRS 61.835 provides:
The minutes of action taken at every meeting of any such public agency, setting forth an accurate record of votes and actions at such meetings, shall be promptly recorded and such records shall be open to public inspection at reasonable times no later than immediately following the next meeting of the body.
This Office has consistently recognized that the minutes of a meeting of a public agency are public records within the meaning of KRS 61.870(2). See, e.g., OAG 86-20. A "public record" is defined as:
[A]ll books, papers, maps, photographs, cards, tapes, discs, diskettes, 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[.]
KRS 61.870(2). Accordingly, a tape recording 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 a public agency, and is made at the direction of the agency.
This Office has previously stated that an agency need not release tape recordings of its meetings to the public inasmuch as such tapes constitute preliminary drafts and preliminary notes within the meaning of KRS 61.878(1)(g) and (h), and are incident to the preparation of its official minutes. Thus, in OAG 79-333, at pp. 1-2, we observed:
[W]ritten notes, shorthand notes or tape recordings made in a meeting for the purpose of preparing the minutes are only preliminary records and may therefore be withheld from public inspection. Actions taken by a public agency or board must be recorded in the minutes and the minutes will become official after they have been approved at the next meeting of the Board. The Board members, of course, can challenge the secretary's draft of the minutes of the meeting and it is for the majority of the Board to decide whether to accept the draft and make it official, or order a revision.
See also, OAG 87-44; OAG 88-32; OAG 89-93; OAG 91-49. It has been our position that release of the approved minutes of the meeting satisfies an agency's obligation under the Open Records Act. We depart from that view today. Upon closer examination of our prior opinions, and an analysis of authorities from other jurisdictions, we conclude 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 may not properly be treated as a preliminary document, but should be made available to the public upon request.
Although there are no Kentucky cases on point, in Veltri v. Charleston Urban Renewal Authority, W.Va., 363 S.E.2d 746 (1987), the West Virginia Supreme Court of Appeals ordered disclosure of the tape recording of a public meeting of the city urban renewal authority. Although the language of the exemption invoked by the public agency to authorize nondisclosure in that case does not mirror the language of KRS 61.878(1)(g) and (h), we believe that its logic can be extended to the facts in this appeal. At page 748, the court observed:
The item of information in issue in the present proceeding is a tape recording of a meeting conducted by the Urban Renewal Authority on September 19, 1986. That meeting was a public meeting and was attended by the general public, including the appellants in this proceeding, as well as members of the news media. The tape recording . . . was made by the Urban Renewal Authority and is owned and has been retained by them.
* * *
Although the Charleston Urban Renewal Authority indicates that the tape in question was made for the purpose of providing the secretary who took minutes of the open meeting with an opportunity to check the correctness of those minutes, the tape was of a public, open meeting. By virtue of the character of that meeting the exchange of ideas which occurred at that meeting was inherently subject to public scrutiny.
Like the court in Veltri, we are not persuaded that the exemption for preliminary drafts and notes ". . . was intended to cover verbatim recordings of open, public meetings of the type in issue in the present case." Veltri, supra at 748. See also, Laramie River Conservation Council v. Dinger, Wyo., 567 P.2d 731 (1977) (holding that a transcript made from a tape recording of a public meeting was improperly withheld in view of the strong Freedom of Information Act policy favoring disclosure, and the fact that "all the public, including news media, from everywhere was invited to attend and listen").
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 be 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 agencies.
In a conversation with the undersigned on June 16, 1992, you indicated that the tapes at issue in this appeal were prepared at the direction of the Shepherdsville City Council and owned by it. Accordingly, they are public records within the meaning of KRS 61.870(2), and must be made available for public inspection and review.
As required by statute, a copy of this opinion will be sent to the requesting party, Ms. Judy Newsome. Both you and Ms. Newsome may challenge it by initiating an action in the appropriate circuit court pursuant to KRS 61.880(5).