Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Warren East High School Site Based Council violated the Open Meetings Act in refusing to permit Janell L. Wood to tape the council's August 6, 2001, meeting. Based on this office's decision in 96-OMD-143, we conclude that "a regulation, rule, or policy of a public body which uniformly prohibits the tape recording of a public meeting is arbitrary, capricious, restrictive, and unreasonable, and a person should be permitted to tape record a public meeting so long as that person and his or her taping equipment do not interfere with the orderly conduct of the public meeting. " 96-OMD-143, p. 4. To the extent that the council's actions at its August 6 meeting were inconsistent with this holding, we find that it violated the Open Meetings Act.
On August 11, 2001, Ms. Wood submitted a complaint to Principal Bailey Norris, presiding officer of the Warren East High School Site Based Council, in which she alleged that the council's refusal to permit her to tape the August 6 meeting constituted a violation of the Open Meetings Act. As a means of remedying the violation, she proposed that the council "submit a letter to the editor of the Park City Daily News informing the public of the error that was made on August 6." In addition, she proposed that the council "send a letter to every parent at Warren East informing them of their right to attend, be placed on the agenda, 1 and to tape record SBDM meetings." Having received no response to her complaint, Ms. Wood initiated this open meetings appeal on September 9, 2001. 2
On September 17, 2001, this office issued notification of receipt of Ms. Wood's open meetings appeal to Principal Norris. Although that notification advised that if the council wished to respond to the appeal, it could do so on or before September 19, 2001, this office received no such response until September 25, 2001, three business days after the date designated for its response. In it, the Warren East High School Site Based Council contested Ms. Wood's factual narrative, asserting that Principal Norris "indicated to Janell L. Wood that he 'preferred' that she not tape the meeting [, but did] not recall restricting her from doing so."
Regardless of whether the restriction was expressed as a preference or a demand, we know of no legal basis for the council's position. In 96-OMD-143, a copy of which is attached hereto and incorporated by reference, the Attorney General declared that a policy prohibiting members of the public from taping open meetings of a public agency was inimical to the spirit and the letter of the Act. Based on the overwhelming weight of legal authority from other jurisdictions, and the statement of legislative policy codified at KRS 61.800, strongly affirming the notion of open government, we held that the public has a right to tape record a meeting of a public body subject only to the condition that the equipment used does not interfere with the orderly conduct of the meeting. Citing the case of Sudol v. Borough of North Arlington, 137 N.J. Super. 149, 348 A.2d 216, 219 (1975)), along with the many others, we concurred with the court's view that:
Accuracy in reporting the transactions of a public governing body should never be penalized, particularly in a democracy, where truth is often said to be supreme . . . . [I]f the making of a tape record is a . . . better method of memorializing the acts of a public body it should be encouraged.
96-OMD-143, p. 4. We expressly overruled OAG 85-74, limiting the public's right to tape a meeting, and endorsed the right of the average citizen to memorialize a public meeting on tape.
Because the Warren East High School Site Based Council's policy is contrary to this line of decisions, and no independent justification is given for its actions, such as disruptive equipment, we find that the council violated the Open Meetings Act at its August 6 meeting when it refused to permit Ms. Wood to tape its meeting.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.846(4)(a). 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.
Janell L. Wood630 Bell Road # 308Antioch, TN 37013
Bailey NorrisPrincipalWarren East High School6867 Louisville RoadBowling Green, KY 42101
Bart DarrellP.O. Box 738Bowling Green, KY 42102-0738
Footnotes
Footnotes
1 As a rule, the Attorney General does not comment on the remedies proposed in an open meetings complaint, our review under KRS 61.846(2) being limited to a determination of "whether the agency violated provisions of KRS 61.805 to 61.850." We note, however, that with reference to Ms. Wood's assertion of her "right," and the "right" of every parent, to be placed on the agenda, no authority, statutory or otherwise, vests the public with such a "right." The Act insures the public's right to observe and listen, but not to participate by public comment. See 95-OMD-99 and 00-OMD-169.
2 Ms. Wood's appeal was not received in this office until September 17, 2001.
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