00-ORD-230

00-ORD-230

December 15, 2000

In re: Tri-City News/Benham City Council

Open Records Decision

        The question presented in this appeal is whether the Benham City Council violated the Open Records Act in its disposition of Tri-City News reporter Faith Clark’s November 10, 2000, request for access to the tape of the council’s November 9, 2000, meeting. Although she received no written response to her request, Ms. Clark was orally advised by Constance Owens, City Clerk, that Mayor Betty Howard had denied Ms. Clark’s request for access to the tape, but had agreed to furnish her with a copy of the minutes when they became available.¹  For the reasons that follow, and upon the authorities cited, we conclude that the council’s actions constituted a procedural and substantive violation of the Open Records Act.

        KRS 61.880 sets forth the duties and responsibilities of a public agency relative to a request received under the Open Records Act. Subsection (1) of that provision requires that a public agency, upon receipt of a request for public records under the Act, respond in writing to the requesting party within three working days of the receipt of the request, and indicate whether the request will be granted. If all or any portion of the request is denied, the agency must cite the specific exception authorizing nondisclosure, and briefly explain how the exception applies to the record withheld. The Benham City Council did not respond in writing to Ms. Clark’s request; nor did it cite a specific exception authorizing nondisclosure. To this extent, the council’s inaction constituted a procedural violation of the Open Records Act. We remind the council that the procedural requirements of the 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. We urge the council to review the cited provision to insure that future responses conform to the Open Records Act.

        Turning to the substantive issues in this appeal, we find that the Benham City Council improperly denied Ms. Clark’s request for access to the tape of its November 9, 2000, meeting. In 92-111, a copy of which is attached hereto and incorporated by reference, this office departed from an earlier line of opinions, and held that a tape of a public meeting “falls squarely within the parameters of [KRS 61.870(2)],² and must be treated as a public record if the tape is prepared, owned, used, or in the possession of the public agency, and is made at the direction of the agency.”  Acknowledging that we had previously held that an agency need not release audio tapes of its meeting because the tapes were of a preliminary character and “incident to the preparation of its official minutes,” our analysis of authorities from other jurisdictions, coupled with the strong Open Records Act policy favoring disclosure, led us to conclude that the tape “may not properly be treated as a preliminary document, but should be made available to the public upon request.” See also, 93-ORD-34; 94-ORD-44; 95-ORD-119; 97-ORD-14; compare, 92-ORD-1058; 93-ORD-105.

In a footnote, we issued the following precautionary note:

We do not mean to suggest that an agency is required to make and keep on file a recording of its public meetings under the Open Records Act. 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 is made of its public meeting, for whatever purpose, and that tape is purchased with agency funds. OAG 79-333, OAG 87-44, OAG 88-32, OAG 89-93, and OAG 91-49, modified accordingly.

OAG 92-111, p. 3. There is nothing in the record before us that suggests that the disputed tape was not made at the city council’s direction, and purchased with city council funds. We therefore conclude that OAG 92-111 is controlling, and that the Benham City Council’s refusal to permit Ms. Clark to listen to the tape constituted a substantive violation of the Open Records Act.

        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 proceedings.

Albert B. Chandler III

Attorney General

Amye L. Bensenhaver

Assistant Attorney General

#701

Attachment

Distributed to:

Faith Clark

Tri-City News

P.O. Box 490

Cumberland, KY 40823

Betty Howard

Mayor of Benham

P. O. Box E

Benham, KY 40807

James Green, Jr.

Benham City Attorney

Main Street

P.O. Box E

Benham, KY 40807

Constance Owens

Benham City Clerk

P.O. Box E

Benham, KY 40807