Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Sebree Planning Commission violated the Open Records Act in responding to Sebree Banner publisher Betty P. Catlett's February 18, 1998, request for "the minutes from Planning Commission meetings each month. . . . by the next Monday following the meeting." For the reasons that follow, we conclude that the Commission's response was procedurally deficient, but substantially correct.
The Sebree Planning Commission did not respond in writing to Ms. Catlett's request. Four working days after she submitted her request, Ms. Catlett called the Commission's secretary to ask about the minutes of the February 16 meeting, and was advised that they had not yet been typed. The Commission's secretary furnished Ms. Catlett with a copy of her long hand notes later that day.
Unable to prepare an article based on these notes, Ms. Catlett again called the Commission's secretary to determine if the meeting had been taped. The secretary confirmed that a tape of the meeting existed. Ms. Catlett then asked if she could "borrow the tape for 30 minutes, " but was advised that she could not have the tape until the secretary had "written [her] minutes. " This appeal followed.
The Sebree Planning Commission violated the procedural requirements of the Open Records Act by failing to comply with KRS 61.880(1). That statute provides, in part:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
The Commission's handling of Ms. Catlett's request was procedurally deficient to the extent that it failed to issue a written response within three working days, and to provide any statutory basis for denying her immediate access to the minutes of the meeting. We remind the Commission that the "procedural requirements [of the Open Records 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, and urge the Commission to review the cited provision to insure that future responses conform to the Act.
Turning to the substantive issues in this appeal, we find that the Commission is not required to honor a standing request for records which have not yet been created, or to furnish a requester with copies of the minutes of meetings until the minutes are finally approved. Although the Attorney General has recognized in a series of decisions that tapes of public meetings which are purchased with agency funds and made at the agency's direction are public records which must be made immediately available for public inspection upon request, we find that the issue of access to the tape of the Commission's February 16 meeting is not ripe for review insofar as Ms. Catlett did not submit a written open records request for the tape, and the Commission did not have an opportunity to issue a written response.
On the issue of Ms. Catlett's request for "the minutes from Planning Commission meetings each month," we direct the parties' attention to 97-ORD-18. There, the requester asked that he be furnished with traffic accident reports "on a weekly basis." Citing KRS 61.872(2) and KRS 61.870(2), we held that the right to inspect and copy public records:
attaches only after those records have been "prepared, owned, used, in the possession of or retained by a public agency. " No such right attaches for records which have not yet come into existence. Simply stated, the Open Records Act governs access to existing public records.
97-ORD-18, p. 3 (emphasis in original). The Commission is not obligated to honor a prospective open records request. We find that 97-ORD-18 is dispositive of this portion of Ms. Catlett's appeal, and incorporate its reasoning by reference.
Nor do we agree with Ms. Catlett's argument that the Commission erred in failing to provide her with copies of the minutes of its February 16 meeting within three working days of her request. KRS 61.835 specifically 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 .
(Emphasis added.) In construing this provision, the Attorney General has stated that "both the Open Meetings Statute, KRS 61.805 to 61.850, and the Open Records Statute, KRS 61.870 to 61.884, mandate public access to the minutes of a public body." OAG 83-139, p. 2. Nevertheless, we have opined:
[A] public agency . . . speaks through its minutes as to actions taken and the minutes of the public agency should be made available to the public as soon as they are finally approved by the [agency] and such approval should be no later than the next [agency] meeting.
OAG 80-421, p. 3. This is because written and shorthand notes:
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 if official, or order a revision.
OAG 79-333, p. 1, 2.
Based on the reasoning of these decisions, we find that the Sebree Planning Commission did not violate the Open Records Act in failing to provide Ms. Catlett with a copy of the minutes of its February 16 meeting within three business days of her February 18 records request. Ms. Catlett may avoid future delays in securing access to records reflecting what transpired at the Commission's meetings by requesting a copy of the tape of the meeting which must be made available for her inspection in the Commission's offices, or duplicated for her for a reasonable copying charge, within three days of receipt of her request. OAG 92-111. The Commission is not, however, obligated to honor her standing request for the minutes of its meetings, or, alternatively, for tapes of its meetings, but may require her to submit a new application each time she requests access to, or copies of, the minutes or tapes. 97-ORD-18.
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.