Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: CHRIS GORMAN, ATTORNEY GENERAL; AMYE B. MAJORS, ASSISTANT ATTORNEY GENERAL
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the Campbell County and Municipal Planning and Zoning Commission's oral denial of Jo Ann Catiller's request for a copy of the original tape recording of the proceeding of the Commission's April 11, 1995, meeting. Ms. Catiller, who is vice-president of Southern Campbell Concerned Citizens, Inc., offered to provide a blank tape and her own time to duplicate the tape. In a telephone conversation with Ms. Catiller, Bonnie Geisler, Commission secretary, denied her request, arguing that the tapes are exempt as a "preliminary matter." Apparently, Ms. Geisler did not follow up with a written denial. 1
We are asked to determine if the Campbell County and Municipal Planning and Zoning Commission properly denied Ms. Catiller's request. For the reasons set forth below, and upon the authorities cited, we conclude that the Commission response violated both the procedural and substantive requirements of the Open Records Law.
KRS 61.880 sets forth the duties and responsibilities of a public agency relative to a request received under the Open Records Act. Subsection (1) of that provision requires that a public agency, upon receipt of a request for public records under the Act, respond in writing to the requesting party within three working days of the receipt of the request, and indicate whether the request will be granted. If all or any portion of the request is denied, the agency must cite the specific exception authorizing nondisclosure, and briefly explain how the exception applies to the record withheld. The Commission did not respond in writing to Ms. Catiller's request; nor did it cite a specific exception authorizing nondisclosure. To this extent, the Commission's response constituted a procedural violation of the Open Records Act. We remind the Commission that the procedural requirements of the Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5. We urge the Commission to review the cited provision to insure that future responses conform to the Open Records Act.
Turning to the substantive issues in this appeal, we find that the Campbell County and Municipal Planning and Zoning Commission improperly denied Ms. Catiller's request for a copy of the original tape recording of the Commission's April 11 meeting. In OAG 92-111, a copy of which is attached hereto and incorporated by reference, this office held 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. See also, 94-ORD-44. We believe that this opinion is dispositive of the present appeal. The Commission is directed to furnish Ms. Catiller with a copy of the tape for a reasonable fee, or, alternatively, to permit her to duplicate the tape at her own expense.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.
Footnotes
Footnotes
1 This office notified the Commission that an appeal from its actions had been filed shortly after receipt of this appeal. The Commission did not respond to that notification, or in any way attempt to refute the allegations contained therein. We therefore must assume the accuracy of the facts as presented.