Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: A. B. CHANDLER III, ATTORNEY GENERAL; THOMAS R. EMERSON, ASSISTANT ATTORNEY GENERAL
OPEN RECORDS DECISION
This matter comes to the Attorney General as an appeal by George S. Schuhmann, Esq., in connection with his request to the Jefferson County Coroner's Office for access to a particular document.
In a letter to the County Coroner, dated March 18, 1996, Mr. Schuhmann requested that he be afforded an opportunity to review and copy any tape recordings made at a particular coroner's inquest proceeding.
Richard M. Sullivan, Esq., responded to Mr. Schuhmann on behalf of the County Coroner's Office, in a letter dated March 27, 1996, and advised in part that the transcript would be made by a court reporter who is paid for her services after the transcript is prepared. Mr. Sullivan denied the request to listen to the tape recording from which the written transcript would be made. He further said it would be unfair if a request for documents under the Open Records Act would require a court reporter to give up her work product without being compensated.
Mr. Schuhmann's letter of appeal was received by this office on April 16, 1996. He maintains that the issue is whether a tape recording of a coroner's inquest made by a court reporter engaged by the coroner is a public record subject to the Open Records Act. Mr. Schuhmann desires to make a copy of the tape rather than pay for a copy of the transcript which will be prepared from that tape recording.
In a letter to this office, dated April 18, 1996, a copy of which was sent to Mr. Schuhmann, Mr. Sullivan said the proceedings at the coroner's inquest were recorded by a freelance private court reporter who only gets paid when she prepares a transcript from the tape.
A letter to this office from the County Coroner stated in part that his office did not ask the self-employed court reporter to transcribe the material from the taped inquest in question. In the past if an attorney needed a copy of the transcript he obtained it from the court reporter and compensated her accordingly.
In OAG 92-111, copy enclosed, this office modified its position relative to the inspection of tape recordings of public meetings and gatherings. We concluded, at page three of that opinion, that if an agency elects to make a tape recording of its public meeting, and that tape is owned, used, or in its possession, it may not properly be treated as a preliminary document pursuant to KRS 61.878(1)(g) and (h), which have been recodified as KRS 61.878(1)(i) and (j), but should be made available to the public upon request. Note, however, what was said in part at page four of that same opinion pertaining to tapes and whether they are public or private documents:
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.
In 93-ORD-105, copy enclosed, we concluded that if the county judge/executive purchased the tape used to record the meeting with his own money he properly denied the request for public access to that tape.
It is, therefore, the decision of the Attorney General that a tape used to record a public meeting or gathering is not a public record which must be made available for public inspection if that tape was purchased by a court reporter on her own initiative with her personal funds to assist her in the preparation of a transcript.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.