Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Meetings Decision
This appeal presents issues arising under both the Kentucky Open Meetings and Open Records Act. We are asked to determine if the Grayson County Tourism Commission violated the Open Records Act in its handling of the Grayson County News-Gazette's February, 1997, request for copies of the minutes of its September, October, and November, 1996, meetings, its January, 1997, meeting, and the independent audits conducted in 1994, 1995, and 1996. We are also asked to determine if the Commission violated the Open Meetings Act in a series of special meetings held between October, 1997, and February, 1998, and in its handling of the News-Gazette's February 19, 1998, complaint concerning these alleged violations. Having received no response to its open records request and its open meetings complaint, the News-Gazette initiated this appeal.
On March 2, 1998, this office issued a notification of receipt of appeal to the News-Gazette, the Commission's chair Karen Woosley, and the Commission's attorney, Gatewood Galbraith. Although we indicated in the notification that the Commission could respond to the appeal, we received no written or oral communication from the agency. We therefore assume the accuracy of the facts presented in the News-Gazette's letter of appeal. Based on these facts, we conclude that the Grayson County Tourism Commission violated the Open Records Act in failing to respond to the News-Gazette's records request, and in failing to furnish the newspaper with the records identified in that request. We further find that the Commission violated the Open Meetings Act in failing to respond to the News-Gazette's open meetings complaint, and in failing to comply with the requirements for conducting a special meeting set forth in KRS 61.823.
The Grayson County Tourism Commission is a public agency for purposes of both the Open Meetings and the Open Records Act. As a local government commission created by statute, the Commission falls within the definition of public agency found at KRS 61.805(2)(a) and (e) and KRS 61.870(1)(b) and (f). It is therefore obligated to comply with both the procedural and substantive requirements of these laws.
The Grayson County Tourism Commission violated the Open Meetings Act by failing to respond in writing to the News-Gazette's February 19, 1998, complaint. KRS 61.846(1) provides that within three business days of receipt of an open meetings complaint, a public agency must determine whether to remedy the alleged violation pursuant to the complaint and notify, in writing, the person making the complaint of its decision. If the agency denies that a violation occurred, its response must include a statement of the specific statute supporting its denial and a brief explanation of how the statute applies. The Commission issued no response of any kind.
Similarly, the Commission violated the Open Records Act by failing to issue a written response to the News-Gazette's February, 1997, open records request. KRS 61.880(1) provides that within three days of receipt of an open records request, a public agency must determine whether it will honor the request and notify, in writing, the person submitting the request of its decision. If the agency denies all or any portion of the request, it must cite the specific exception authorizing nondisclosure and briefly explain how it applies to the record withheld. Again, the Commission issued no response.
Well over a year has elapsed since the News-Gazette submitted its records request, and slightly less than a month since it submitted its meetings complaint. The Commission's failure to respond suggests a disregard for the Open Records and Open Meetings Act, and constitutes a violation of these laws. We remind the Commission that the procedural requirements of these laws "are not mere formalities, but are an essential part of the prompt and orderly processing" of a records request or a meetings complaint. 93-ORD-125, p. 5. We urge the Grayson County Tourism Commission to review the cited provisions to insure that future responses conform to the law.
Our analysis does not end here. The Commission's inaction relative to the News-Gazette's open records request constitutes a substantive violation of the Open Records Act as well. There can be little doubt that the requested records, consisting of the minutes of meetings conducted in late 1996 and early 1997, and audits conducted in 1994, 1995, and 1996, are open records which must be made available to the public for inspection and copying. See, with respect to audit report, 93-ORD-125 (holding that "there can be little doubt that a final audit of a public agency is a public record within the contemplation of the Open Records Law"). See also, OAG 76-633; OG 82-340; OAG 83-326; OAG 84-225; OAG 91-72; 93-ORD-104. See, with respect to the minutes of public meetings, 96-ORD-259 (holding that "KRS 61.835 compels the creation of minutes of public agency meetings, and thus . . . the minutes are governed by the Open Meetings Act . . . and by the Open Records Act as records which are prepared, owned, used, in the possession or retained by a public agency" ). Although it was afforded two opportunities to explain its refusal to release these records, once in response to the News-Gazette's original request, and again in response to this office's notification of receipt of appeal, the Grayson County Tourism Commission offered no explanation. In the absence of citation to any authority supporting nondisclosure, we conclude that these records must be disclosed. The Commission is directed to immediately furnish the News-Gazette with copies of the requested minutes and audits.
Finally, the Commission's failure to respond to the News-Gazette's open meetings complaint constitutes a substantive violation of the Open Meetings Act. The News-Gazette alleges that the Commission conducted four special meetings in the period between October, 1997, and February, 1998, without complying with the notice requirements found at KRS 61.823. As this office observed in a recent open meetings decision:
The law imposes a duty on public agencies to provide written notice of all special meetings. Indeed, "the express purpose of the Open Meetings Act is to maximize notice of public meetings and actions." Floyd County Board of Education v. Ratliff, Ky., 955 S.W.2d 921, 923 (1997). Failure to comply "with the strict letter of the law in conducting meetings of a public agency violates the public good." Id. , citing E. W. Scripps Co. v. City of Maysville, Ky.App., 790 S.W.2d 450 (1990). Underlying these observations is the fundamental principle that "the formation of public policy is public business and shall not be conducted in secret. . . ." KRS 61.800.
98-OMD-18, p. 3, 4.
The Commission does not deny that these violations occurred; nor does it present any defense for its noncompliance. We therefore conclude that the Grayson County Tourism Commission violated KRS 61.823 by failing to deliver written notice of these special meetings to the News-Gazette and to post written notice of these special meetings in a conspicuous place in the building where the meetings took place, and the building that houses its headquarters, at least twenty-four hours before the meeting.
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 61.846(4). 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.