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 Sheila Issac in connection with her request to the Gateway Area Development District for access to a particular document.
In a letter dated March 28, 1996, Ms. Issac requested a copy of the tape of the Gateway Area Development District monthly meeting held on March 26, 1996.
Gail K. Wright, Executive Director of the Gateway Area Development District, responded to Ms. Issac in a letter dated March 29, 1996, and stated that the request was denied. Ms. Wright maintained that the tape is only a preliminary draft of the minutes of the meeting and contains remarks of a personal nature. She cited KRS 61.878(1)(g) which has been recodified as KRS 61.878(1)(i).
Ms. Issac responded to the denial in a letter dated April 2, 1996, and set forth numerous reasons why, in her opinion, it was wrong to deny her request. Ms. Wright replied to the response in a letter also dated April 2, 1996, and reiterated that the request for access to the tape was being denied. A third request by Ms. Issac for access to the tape, dated April 11, 1996, resulted in a third response from Ms. Wright, dated April 18, 1996, containing a third denial.
Ms. Issac's letter of appeal was received by this office on April 25, 1996. She in part cited OAG 92-111 in support of her position and disputed the contention that the tape in question is a draft of a document (the minutes of the meeting).
Stephen E. Neal, Esq., legal counsel for the Gateway Area Development District, filed a response to Ms. Issac's appeal which was received by this office on April 29, 1996. He said access to the tape was denied because it is not a permanent part of the minutes of the board meeting, the tape is only a tool to assist the secretary in assuring that motions are accurately recorded, tapes of the meetings are not kept as permanent records, there is no requirement that the meeting be taped, and discussions are held during the meeting which are not part of the formal actions taken and recorded in the minutes. Mr. Neal referred to opinions issued prior to OAG 92-111 to support the agency's position and maintained that OAG 92-111 is "clearly distinguishable from the situation in this case." He emphasized that the public agency does not retain the meeting tapes and that it has no policy of directing that tapes of meetings be made and kept on file.
In OAG 92-111, copy enclosed, this office modified its position relative to the accessibility to and inspection of tape recordings of public meetings and gatherings. We concluded, at page three of that opinion, as follows:
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.
The holding in OAG 92-111 is limited to those situations where an agency directs that a tape be made of its public meeting, for whatever purpose, and that tape is purchased with agency funds. No opinion or decision of this office requires that an agency make a tape of its meeting or that such a tape be kept indefinitely. In fact, the Manager of the Local Records Program of the Department for Libraries and Archives advised this office several weeks ago that the records retention schedule for records of local governments provides that once the minutes of a meeting have been transcribed and approved by the public agency the tape of the meeting may be destroyed.
Other decisions of this office, concluding that if an agency elects to make a tape recording of its public meeting, and that tape is owned, used or in the possession of the public agency, it must be made available to the public upon request (presuming the request is made during the time the agency must retain or has voluntarily retained the tape) are 93-ORD-34 and 94-ORD-44, copies of which are enclosed.
KRS 61.880(2)(c) and KRS 61.882(3) place the burden of proof in sustaining agency action in an appeal under the Open Records Act on the public agency. See 94-ORD-35, copy enclosed at page two. The agency's argument that the tape constitutes a preliminary document is rejected and there is no evidence that the tape is not a public record under the test set forth in OAG 92-111 and the subsequent decisions relying upon that opinion. There is nothing to dispute the impression that the public meeting was taped at the request or direction of officers or employees of the public agency and that the tape was purchased or secured with public funds.
It is, therefore, the decision of the Attorney General that where the officers or employees of the area development district decided to tape record the meeting in question and the tape was purchased with public funds, that tape should be made available by the agency to the public upon request, assuming the request was made during the time the agency is required to retain or has voluntarily retained the tape.
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.