Request By:
Elbert Powell
P.O. Box 601
Nortonville, KY 42442Richard L. Frymire
Hopkins County Judge/Executive
Courthouse
10 S. Main Street
Madisonville, KY 42431Robert P. Moore
Hopkins County Attorney
Courthouse Annex
24 E. Center Street
Madisonville, KY 42431
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the actions of the Hopkins County Fiscal Court relative to the open records requests of Elbert Powell violated the Open Records Act. For the reasons that follow, we conclude that responses of the agency were consistent with the Open Records Act.
By letter dated December 17, 2001, Mr. Powell made the following request for records:
I am requesting a copy or copies of all Fiscal Court meetings, regular or special called meetings since October 22, 2001 to present. Also, I am requesting a copy of the minutes of all committee meetings since November 1, 2001. I am asking for all of this now, because there was no typed fiscal court minutes in the fiscal court record book in the county clerk's office since Sept. 11, 2001. Please advise me of any fees.
By letter dated December 20, Richard L. Frymire, Hopkins County Judge/Executive, responded to Mr. Powell's request, advising him:
Copies of Fiscal Court minutes from October and November 2001 are available for you in the office of the Judge/Executive at a cost of $ 1.30 ($ 0.10 per page). This office does not possess minutes of committee meetings since November 1, 2001 and therefore are unable to provide copies to you.
In his letter of appeal, Mr. Powell acknowledged receipt of the Fiscal Court minutes for October and November, 2001, but stated he did not receive copies of the minutes of the "Special Called Meeting, Road closing meeting, held on Thursday, November 29, 2001" and meetings of the "building and grounds committee meeting and also a road committee meeting" held within the time frame he asked for.
After receipt of Notification of the appeal and a copy of the letter of appeal, Judge Frymire provided this office with a response to the issues raised in the appeal. In his response, he advised:
The Hopkins County Fiscal Court held its meetings on October 5, 2001, October 22, 2001, November 8, 2001 and November 30, 2001. Copies of these minutes were provided Mr. Powell on December 20, 2001. Mr. Powell states that he did not receive copies of the minutes of a special called meeting on November 29, 2001. There was not a special called meeting on November 29, 2001, therefore, minutes for a meeting on that date are not available. The Fiscal Court had three public hearings on November 29, 2001 to receive public comment on the potential closure of three roads. A copy of the published notice in the newspaper is attached. Minutes are not prepared for public hearings.
Mr. Powell complains that he did not receive copies of the minutes of committee meetings from November 1, 2001 to the present. The Attorney General's office has consistently recognized that a public agency cannot afford a requester access to records that it does not have. 93-ORD-134. In the response to Mr. Powell dated December 20, 2001, a copy of which is attached, he was advised that this office does not possess minutes of committee meetings and are therefore unable to provide copies of same. No minutes were prepared for these meetings. The Hopkins County Fiscal Court discharged its duty under the Open Records Act by affirmatively so stating. 99-ORD-150.
The meetings of the Road Committee and Building and Grounds Committee were scheduled during Open Session of the Fiscal Court on November 30, 2001 establishing the date, time and location of the meetings. Members of the general public, including Mr. Powell, and members of the press were present for these meetings. The minutes of the November 30, 2001 meeting of the Fiscal Court confirm the announcement of the time and place of these committee meetings.
We are asked to determine whether these responses of the Fiscal Court violated the Open Records Act. For the reasons that follow, we conclude that the responses were substantially consistent with the Open Records Act.
In the instant case, Mr. Powell was provided with copies of the requested minutes of the regular meetings of the Fiscal Court for October and November 2001. His requests for copies of minutes of a special called meeting on November 29, 2001 and committee meeting minutes from November 1, 2001 to the present were denied on the bases that there was no special called meeting and no minutes were prepared for the committee meetings. For these reasons, the Fiscal Court advised Mr. Powell that it could not provide these records as they did not exist.
As noted in Judge Frymire's supplemental response, this office has consistently recognized that a public agency cannot afford a requester access to records that it does not have or which do not exist. 93-ORD-134. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. Thus, the Fiscal Court's action, in affirmatively advising Mr. Powell that it did not have the requested minutes, as they did not exist, was consistent with the Open Records Act and prior decisions of this Office.
Although no Open Meetings Act appeal is before this office, several potential open meeting issues are raised. They are whether the public hearings and the Committee meetings constituted "special meetings," under the Open Meetings Act and, if so, whether the Fiscal Court complied with the Act by providing proper notice of the hearings and meetings and by keeping minutes of the meetings. Because these issues are not presented to us in an open meetings appeal, we do not resolve them under authority of KRS 61.846(2). Nevertheless, the parties should be guided by the following observations.
The Open Meetings Act mandates that "all meetings of a quorum of the members of any public agency at which any public business is discussed or any action is taken by the agency, shall be public meetings, open to the public at all times . . . ." KRS 61.810(1). A meeting is defined as "all gatherings of every kind, regardless of where the meeting is held, and whether regular or special and informational or casual gatherings held in anticipation or in conjunction with a regular or special meeting. " KRS 61.805(1).
The law imposes a duty on public agencies to provide written notice of all special meetings. Indeed, "the express purpose of the Open Meetings Act is to maximize notice of public meetings and actions." Floyd County Board of Education v. Ratliff, Ky., 955 S.W.2d 921, 923 (1997). Failure to comply "with the strict letter of the law in conducting meetings of a public agency violates the public good. " Id ., citing E. W. Scripps Co. v. City of Maysville, Ky. App., 790 S.W.2d 450 (1990). Underlying these observations is the fundamental principle that "the formation of public policy is public business and shall not be conducted in secret . . . ." KRS 61.800.
In 92-OMD-1840, this office observed:
Under the Open Meetings Act there are only two kinds of meetings. Regular meetings are governed by the provisions of KRS 61.820 and special meetings are controlled by the provisions of KRS 61.823. If the public agency holds a meeting in addition to, outside of, or in place of the regular meeting schedule that meeting is a special meeting and the provisions of KRS 61.823 must be followed. Those provisions include requirements pertaining to the written notice and the agenda, the delivery of the notice, and the posting of the notice. Failure to follow all of these provisions constitutes a violation of the Open Meetings Act.
92-OMD-1840, p. 3. Specifically, KRS 61.823 provides:
(3) The public agency shall provide written notice of the special meeting. The notice shall consist of the date, time, and place of the special meeting and the agenda. Discussions and action at the meeting shall be limited to items listed on the agenda in the notice.
(4)(a) As soon as possible, written notice shall be delivered personally, transmitted by facsimile machine, or mailed to every member of the public agency as well as each media organization which has filed a written request, including a mailing address, to receive notice of special meetings. The notice shall be calculated so that it shall be received at least twenty-four (24) hours before the special meeting. The public agency may periodically, but no more often than once in a calendar year, inform media organizations that they will have to submit a new written request or no longer receive written notice of special meetings until a new written request is filed.
(b) As soon as possible, written notice shall also be posted in a conspicuous place in the building where the special meeting will take place and in a conspicuous place in the building which houses the headquarters of the agency. The notice shall be calculated so that it shall be posted at least twenty-four (24) hours before the special meeting.
As noted, anything short of strict compliance with these requirements "violates the public good. " Ratliff at 923.
In its supplemental response, the Fiscal Court provided copies of the public notices published in the newspaper of the public hearings on the potential closure of three roads. Representative of these notices is the notice for the Whitfield Cemetery Road, which reads as follows:
Public Notice
Please take notice that the Hopkins County Fiscal Court will conduct a public hearing to consider closing a portion of the Whitfield Cemetery Road located in Hopkins County, Kentucky, on Thursday, November 29, 2001, at 10:30 a.m. in the Fiscal Courtroom, Hopkins County Courthouse, Madisonville, Kentucky. Any person either opposing this portion of the Whitfield Cemetery Road or in support of closing this portion of the Whitfield Cemetery Road should appear at the public hearing.
In 00-OMD-65, we made the following comment relative to the Attorney General's responsibilities in situations involving both legal notices under KRS Chapter 424 and notice requirements under the Open Meetings Act:
We begin by noting that the Attorney General is not charged with the duty to interpret and enforce the requirements for legal notices codified in KRS Chapter 424, and in particular KRS 424.130, in an open meetings appeal. Where, however, a quorum of the members of a public agency meet to discuss public business or to take action, and a complaint is made concerning the conduct of that meeting, KRS 61.846(2) mandates that "the Attorney General shall review the complaint [and the agency's response thereto] and issue within ten (10) days, excepting Saturdays, Sundays, and legal holidays, a written decision which states whether the agency violated the provisions of KRS 61.805 to 61.850." When these laws intersect, our analysis is confined to issues relating to the propriety of the agency's actions under the Open Meetings Act . . . .
Since the public hearings and the Committee meetings were not regular meetings, they would be special meetings and subject to the special meeting requirements.
Addressing the issue of whether the Fiscal Court or the Committees are required to keep minutes of their meetings, KRS 61.835 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.
Under this statute, the Fiscal Court would be obligated to record minutes of all meetings of a quorum of its members or a quorum of its committees at which public business was discussed or action taken. This would apply to both the public hearings and the Committee meetings. As we have noted on more than one occasion, "we attach significance to the use of the disjunctive particle 'or' rather than the conjunction 'and.'" 98-OMD-94, p. 5; see also 99-OMD-77; 99O-MD-117 The requirement that the agency record minutes of its meetings is triggered regardless of whether action is taken at a meeting. At a minimum, the minutes should reflect that the meeting was convened, the minutes of the last meeting, if there was one, approved, and the meeting adjourned. In the interest of maximizing notice of public agency meetings, and what transpired at those meetings, the Fiscal Court must record minutes of all of its meetings, in which there is a quorum.
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.