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 City of Ft. Mitchell violated the Open Records Act in the disposition of Mary Ann Fulmer's August 22, 2001, request for a copy of the audiotape of the August 15, 2001, ad valorem tax public hearing. Based on this office's decision in OAG 92-111, and succeeding open records decisions, we affirm the City's denial of Ms. Fulmer's request.
In a response dated August 23, 2001, Ft. Mitchell City Clerk Linda Coburn advised Ms. Fulmer as follows:
Audiotapes used as an aid for writing minutes are erased when minutes are adopted. Not an official record of the city. KRS 61.878(1)(i). Exempted as [sic] open records as preliminary notes and drafts.
Shortly thereafter, Ms. Fulmer initiated this open records appeal, arguing that in her experience as a public agency employee, she had "never been allowed to refuse anyone copies of the tapes or minutes under the Open Records Law as long as the request was in writing and answered in 3 business days . . . ." 1
In a supplemental response directed to this office following commencement of Ms. Fulmer's appeal, City Attorney Robert C. Ziegler elaborated on the city's position. Relying on OAG 92-111, he argued that "the cassette tape at issue is not a 'public record' subject to public disclosure under KRS 61.870, et seq. " Mr. Ziegler explained:
OAG 92-111 states that when an agency elects to make a tape recording of its public meetings, and the tape is owned by the agency, it should be made available to the public upon request. However, an opposite result is reached when a city employee elects on their own initiative to purchase a tape for the purpose of recording a public meeting, and the city has not directed the employee to purchase the tape. In relevant part, OAG 92-111 states as follows:
The cassette tape at issue was purchased by Linda Coburn, City Clerk, with her own money. The cassette tape is her personal property. The City did not direct her to purchase the tape, nor did it pay for the tape. Therefore, the cassette tape is not a "public record. "
Mr. Zeigler is correct in his analysis.
The term "public record" is defined at KRS 61.870(2) as:
all books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency.
In OAG 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 an audiotape of a public meeting "falls squarely within the parameters of the definition, 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." OAG 92-111, p. 2. Acknowledging that we had previously held that an agency need not release audiotapes of its meetings 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; 97-ORD-4; 01-ORD-96; compare, 92-ORD-1058; 93-ORD-105.
As noted in Mr. Ziegler's response to Ms. Fulmer's appeal, our holding in OAG 92-111 "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." OAG 92-111, p. 4. Such is not the case in the appeal before us. Mr. Ziegler states that the City Clerk purchased the audiotape with her own money, and was not directed by the city to tape the meeting. Accordingly, the audiotape is not a public record within the meaning of KRS 61.870(2). Although Ms. Fulmer is entitled to obtain a copy of the minutes of the August 15 public hearing, if the minutes have been approved, and to tape record future meetings herself "so long as . . . her taping equipment [does] not interfere with the orderly conduct of the public meeting. " 96-OMD-143, p. 4, she is not entitled to obtain a copy of the clerk's personal recording of the public hearing.
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.
Mary Ann Fulmer4 Beechwood RoadFt. Mitchell, KY 41017
Linda CoburnCity Clerk P.O. Box 17157Ft. Mitchell, KY 41017-0157
William GoetzCity AdministratorP.O. Box 17157Ft. Mitchell, KY 41017-0157
Robert ZieglerCity Attorney541 Buttermilk PikeP.O. Box 175710Covington, KY 41017-5710
Footnotes
Footnotes
1 On appeal, Ms. Fulmer also questions why the City Administrator for Ft. Mitchell publicly noted the identity of her employer when she rose to address the Mayor and Council at the public hearing. Because this question does not arise under the Open Records Act, we respectfully decline to render a decision on the propriety of the City Administrator's statement.