Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
This matter comes to the Attorney General on appeal from the Kentucky State Board of Hairdressers and Cosmetologists's denial of Christopher R. Jenkins's open records request for "Audio recordings of all Board Meetings in April, September, October, November, and December, 1998."
Carroll Roberts, Administrator, responding on behalf of the Board, denied the request, stating:
Audio recordings of all board meetings in April, September, October, November, and December, 1998 will not be available as those tapes are not prepared, owned, used, or in the possession of the Board and are not made at the direction of the Board. The tapes are [in] the possession of the Executive Secretary or Administrator and are made only to assist in the preparation of the minutes.
In his letter of appeal, Mr. Jenkins argues that the audio tapes fall within the purview of the Open Records Act because they are in the possession of government employees, i.e., the Executive Secretary and the Administrator of the Kentucky State Board of Hairdressers and Cosmetologists, and were prepared within the course and scope of their official duties as agency officers.
As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Ms. Roberts provided this office with a response to the issue raised in the appeal. In her response, Ms. Roberts stated:
Pursuant to Mr. Jenkins' request for "audio recordings of all Board meetings in April, September, October, November, and December, 1998," those records are not prepared, owned, used, or in the possession of the Board and are not made at the direction of the Board. The tapes are the property of the Administrator, bought and purchased by the Administrator, and are made by the Executive Secretary or Administrator to assist in the preparation of the minutes and are not intended to be an official board record. The tapes are used repeatedly or for personal use. This is in accordance with OAG 92-111.
In order to facilitate our review of the issue raised in this appeal the undersigned contacted Ms. Roberts by telephone to obtain additional information regarding the audio tapes. Ms. Roberts advised that the tapes were purchased with her own money and were used to assist her in preparing the monthly minutes. She further advised that Mr. Jenkins had been provided with copies of the Board meeting minutes which he had requested.
We are asked to determine whether the Board properly denied Mr. Jenkins's request for the audio tapes. For the reasons that follow, we conclude that the Board's action were proper and consistent with the Open Records Act and prior opinions of this office.
In OAG 92-111, this office held that if an agency elects to make a tape recording of its public meetings, and the tape is purchased with agency funds, it must be made available for public inspection. However, in that same opinion, we stated the following in regards to the 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, we concluded that where the county judge/executive had purchased the tape used to record the meeting with his own money he properly denied the request for public access to that tape. In 92-ORD-1058, we held that, where the tapes used by the city clerk to assist her in preparing the official minutes of the City Council meetings were purchased at her own expense, the tapes did not have to be made available for inspection.
As noted above in Ms. Roberts's several responses, the tapes were not prepared at the direction of the Board nor were they intended to serve as official Board records. They were purchased with her own money and were used to assist her in preparing the Board's minutes. Under these circumstances, we conclude that the Board properly denied Mr. Jenkins's request for the audio tapes. Only if the public agency expends its own funds in the purchase of tapes, and directs its employees to record its meetings, are those tapes subject to public inspection. 92-ORD-1058.
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.