Opinion
Opinion By: A. B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Kentucky Community and Technical College System violated the Open Records Act in denying Davy Jones's June 20, 2002 request for records on the basis that the requested records do not exist. Because the evidentiary record before us does not support KCTCS's position that no responsive public records exist, we find that KCTCS violated the Act in denying the request. This decision should not be construed as expressly or impliedly holding that the entities that generated these records are public agencies for open meetings purposes. 1 Instead, we hold only that because the records were "prepared, owned, used, in the possession of or retained by a public agency, " 2 to wit KCTCS and one or more of its employees, they are public records for open records purposes and, unless they qualify for exclusion under one or more of the exceptions to public inspection, the records must be disclosed.
On June 20, Mr. Jones submitted a request to KCTCS President Michael B. McCall for:
1. A record (or combination of records) that when retrieved by your office and provided to me shows the current identity and contact information of each Presiding Officer of the bodies I have described; 3
2. The current schedule of regular meetings of each of those bodies appointed, established, created and/or controlled by yourself, that are those bodies I have described;
3. The minutes of not the most recent or last (final) meeting, but rather the 'meeting before the most recent or last (final) meeting' of each of those bodies appointed, established, created and/or controlled by yourself, that are those bodies I have described.
In a response dated June 25, 2002, KCTCS General Counsel Beverly Haverstock denied Mr. Jones's request. She explained:
President McCall, as President of KCTCS, has no authority to appoint, establish, create and/or control a public agency as defined in KRS 61.870(1)(a)-(k). As President of KCTCS, Dr. McCall is charged with carrying out the policies of the KCTCS Board of Regents, as set forth in KRS Chapter 164. The bodies he may call upon to support this function are administrative bodies with staff functions that exist at the sole discretion of the President, and the President defines their composition, roles, and use. Thus, these informational administrative work groups they [sic] do not function or fit the definition of a public agency defined in KRS 61.870(1).
On this basis, Ms. Haverstock asserted that each of Mr. Jones's requests must be denied "pursuant to KRS 61.870(2) . . . as the records do not exist." Shortly thereafter, Mr. Jones initiated this open records appeal, asserting that KCTCS has not satisfied its burden of proof "that none (not a single one) of the bodies appointed by the KCTCS President are a public agency [sic] pursuant to the descriptions" Mr. Jones relied upon, notwithstanding the fact that KCTCS "admits that committees or similar bodies have been caused to exist by the KCTCS President, who 'defines their roles, composition, and use' . . . ."
In a supplemental response directed to this office following commencement of Mr. Jones's appeal, Ms. Haverstock framed the question on appeal as whether KCTCS properly denied his request because the records he seeks do not exist. Reaffirming that "the only committees and teams in existence that are appointed by President McCall are staff teams established to aid and advise him in the day-to-day operations of KCTCS," she explained:
Mr. Jones, by appealing the denial of his request, appears to be asking the Attorney General to re-define the term "public agency" to include staff administrative teams under the Open Records Act. The problem Mr. Jones is having in this appeal is that he fails to recognize the difference between committees that, because of their peculiar nature and function, become public agencies when established, and those committees that are strictly employee committees established to assist the President in the every day operations of the public agency. Mr. Jones is wrong in his failure to take the difference into account.
?
President McCall has appointed a President's Cabinet and a President's Leadership Team (PLT). The PLT is made up of members of the President's Cabinet and the 16 Presidents and CEOs of the community and technical college districts. President McCall has also created administrative staff teams that function under and through the PLT. These employee teams make up President McCall's administrative model, known as R.S.V.P. (Responsive Solutions to Vigorous Planning). These employee groups do not include any non-employee members. They are appointed by the President to perform day-to-day administrative functions. They do not have independent authority to act on behalf of KCTCS or the Board of Regents. They do not make policy decisions. They assist President McCall in his responsibilities to carry out the policies of the KCTCS Board of Regents in the day-to-day operations of the system.
Relying on OAG 94-25 4 and 95-ORD-48 5, and the authorities cited therein, Ms. Haverstock asserted that the Cabinet, Leadership Team, and R.S.V.P. staff committees are not public agencies. It was her position that "[t]he Open Records Act does not create a public agency where none exists under the definitions of the Open Meetings Act, " and that therefore "the Open Records Act and the Open Meetings Act do not reach President McCall's appointed administrative staff committees." In support, Ms. Haverstock cited KRS 61.850 which, in her view, "direct[s] that the Open Records Act [is] ancillary and supplemental to the Open Meetings Act, and it [is] not to be construed as repealing any of the laws of the Commonwealth relating to meetings." 6
To begin, KCTCS does not deny that the President's Cabinet, Leadership Team, and employee teams, operating under R.S.V.P., generate records. Such records may include, inter alia, memoranda, correspondence, reports, notes, and e-mail messages. Such records may also include presidential letters of appointment, or informal written notifications of assignment to the Cabinet or a team, team membership lists, a schedule of Cabinet or team meetings, and minutes of those meetings. KCTCS asserts that such responsive records as may exist are not public records under the Open Records Act because neither the President's Cabinet nor his teams, which generate them, are public agencies as defined in KRS 61.805(2) or KRS 61.870(1), and that "'Sunshine Laws' do not exist to make records of [such entities or their] . . . meetings open to the public." Leaving this issue aside, we believe it goes without saying that KCTCS is a public agency, and any "documentation regardless of physical form or characteristics, which [is] prepared, owned, used, in the possession of or retained by a public agency" is a public record pursuant to KRS 61.870(2). Records that are generated by or for KCTCS officials or employees who serve on their President's Cabinet or teams, or that are directed to KCTCS officials or employees, are public records and subject to the mandatory disclosure requirements of the Open Records Act unless otherwise exempt pursuant to KRS 61.878(1)(a) through (l). KCTCS's position reflects an exceedingly narrow view of the scope and application of the Open Records Act that is not supported by the Act's express language. Nothing in either the Open Meetings or Open Records Acts as construed by the courts or this office, including KRS 61.850, 7 suggests that the records access law is inferior to the meetings access law. The determination of whether an entity is a public agency for open meetings purposes or for open records purposes turns on KRS 61.805(2) and KRS 61.870(1), respectively. Its argument that denial of Mr. Jones's request was justified on the basis that no responsive records exist because the President's Cabinet and teams are not public agencies, and that the records they generate are not public records, is therefore fundamentally flawed.
In 02-ORD-142, this office was asked to determine if Eastern Kentucky University subverted the intent of the Open Records Act, short of denial of inspection, by failing to afford Mr. Jones access to nearly identical records generated by "bodies" appointed, established, created and/or controlled by EKU's past and present presidents. There, EKU acknowledged that any responsive records generated by these bodies were public records and commenced a search for the records that did not yield immediate results. Mr. Jones objected that EKU had inordinately delayed his access to the records. We affirmed EKU's disposition of his request, concluding that "given the breadth of [his] request, the University had afforded Mr. Jones timely access to responsive records it ha[d] thus far succeeded in locating and provided a reasonable timetable for affording him access to the remaining responsive records." 02-ORD-142, p. 2. At note 2 of 02-ORD-142, we observed:
For purposes of absolute clarity, we emphasize that the question before us is not whether these "bodies" constitute public agencies as defined in KRS 61.805(2). For open records purposes, any record, regardless of physical form or characteristics, that is prepared, owned, used, in the possession of or retained by a public agency, as defined in KRS 61.870(1), is a public record that is subject to mandatory disclosure unless otherwise exempt. This would include statutorily required meetings minutes (KRS 61.835) and voluntarily maintained meeting minutes, as well as statutorily required regular meeting schedules (KRS 61.820) and voluntarily established regular meeting schedules.
We believe that the records access position adopted by EKU is the only legally supportable position. For this reason, we believe it is incumbent on KCTCS to conduct a search of agency records to determine if the President's Cabinet, Leadership Team, employee teams operating under R.S.V.P., or any other similar bodies, maintain responsive records in the form of cabinet or team membership lists, letters of appointment to the Cabinet or a team, informal written notifications of appointment, schedules of meetings, or minutes of meetings. 8 If so, those public records must be disclosed to Mr. Jones unless they otherwise qualify for exclusion from public inspection per KRS 61.878(1)(a) through (l). If, after an agency search for these records, KCTCS determines that no responsive records exist, it must immediately so notify Mr. Jones.
In closing, we note that although it comes to us in a different guise, the underlying issue in this appeal appears to be, as it was in 95-ORD-48, whether the President's Cabinet, Leadership Team, employee teams operating under R.S.V.P., and any other similar bodies that might exist, are public agencies for open meetings purposes and thus required to designate a "presiding officer, " (KRS 61.846(1)), establish a schedule of regular meetings (KRS 61.820), record minutes of every meeting (KRS 61.835), and generally conform to the mandate of the Open Meetings Act by opening their meetings to the public. As in 95-ORD-48, "[t]his issue has not . . . been properly presented to this office and is therefore not ripe for adjudication." 95-ORD-48, p. 4. At pages 4 and 5 of that decision, the Attorney General advised:
Persons seeking enforcement of the Open Meetings Act must first submit a written complaint to the presiding officer of the public agency suspected of violating the Act. KRS 61.846. The complaint must state the circumstances which constitute the alleged violation, and must state what the public agency should do to remedy the alleged violation.
The public agency is required to respond in writing within three business days after the receipt of the complaint, and notify the complaining party of its decision. An agency's response denying the complaint's requirements for remedying the alleged violation must include a statement of the specific statute or statutes supporting the public agency's denial and how that statute or statutes apply to the specific situation at hand.
If the complaining party wishes the Attorney General to review the public agency's denial, the complaining party must send the Attorney General a copy of his written complaint, receipt by the complaining party of that written denial by the public agency. If the public agency refuses to provide a written denial, the complaining party must provide a copy of the written complaint to the Attorney General within 60 days from the date the written complaint was submitted to the presiding officer of the public agency.
We continue to resist efforts to "bootstrap" the open meetings question to an open records appeal. Mr. Jones must follow the procedures outlined above, and furnish us with the requisite complaint and denial before we can proceed to an adjudication of the open meetings questions.
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.
Davy JonesProfessor of Toxicology306 HSRBChandler Medical CenterUniversity of KentuckyLexington, KY 40536
Beverly H. Haverstock, Esq.Official Records CustodianKCTCS2624 Research Park DriveP.O. Box 14092Lexington, KY 40512-4092
Dr. Michael B. McCallKCTCS2624 Research Park DriveP.O. Box 14092Lexington, KY 40512-4092
Footnotes
Footnotes
1 Such a determination can only be made in an open meetings decision, issued pursuant to KRS 61.846(2) in response to an open meetings appeal submitted pursuant to KRS 61.846(1), and arising from a purported violation of KRS 61.810, 61.815, 61.820, 61.823, 61.826, or 61.835 relative to the mandatory open meetings requirements for public agencies as defined at KRS 61.805(2).
2 KRS 61.870(2).
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3 These "bodies" are generally described as bodies that President McCall "appointed, established, created and/or controlled since the time of [his] own appointment as President of KCTCS" and specifically described as:
Any entity where the majority of its governing body, as defined [in] paragraph (b), (c), (d), (e), (f), (g), (h), (j), or (k) of subsection (1) of KRS 61.870, has been appointed by you in your capacity as President of KCTCS, with the restriction that I am only concerned with your appointment actions to the extent that as President of KCTCS you were acting as member or employee of a public agency defined in paragraph (b), (c), (d), (e), (f), (g), (h), (j), or (k) of subsection (1) of KRS 61.870 [please note that by my exclusion of reference to KRS 61.870(1)(a), the above description is now directly parallel to KRS 61.805(2)(f);
and/or
Any board, commission, committee, subcommittee, ad hoc committee, advisory committee, council, or agency, except for a committee of a hospital medical staff, established, created, and/or controlled by you as the KCTCS President, with the restriction that I am only concerned with your actions to establish, create and/or control those bodies to the extent that you were acting in your capacity as a member or employee of a public agency defined in paragraph (b), (c), (d), (e), (f), (g), (h), (j), or (k) of subsection (1) of KRS 61.870 [please note that by my exclusion of reference to KRS 61.870(1)(a), the above description is now directly parallel to KRS 61.805(2)(g)];
and/or
a group of persons acting as a unit, to whom there has been officially delegated the responsibility to consider, investigate, take action on, or report on specific matters entrusted to it by you, in your Presidential capacity as a member or employee of a public agency defined in paragraph (b), (c), (d), (e), (f), (g), (h), (j), or (k) of subsection (1) of KRS 61.870 (see also OAG 94-25).
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4 In OAG 94-25, an advisory opinion intended to provide guidance to public universities on the application of the Open Meetings Act to university senates, faculties of colleges, and faculties of departments, the Attorney General "proceed[ed] on the premise that our open meetings law is intended to provide public access to meetings of decision-making bodies, and is not intended to provide public access to the day-to-day administrative work of a public agency. "
5 In 95-ORD-48, we were asked to determine if the University of Kentuckysubverted the intent of the Open Records Act by failing to generate minutes of the meetings of the President's cabinet. There, we concluded that the issue was not cognizable under the Open Records Act, concluding:
Until such time as it is determined that the President's cabinet is a public agency, within the meaning of KRS 61.805(2), and is thus required under KRS 61.835 to record minutes of actions taken at its meetings, this question is not ripe for review.
95-ORD-48, p. 5.
6 KRS 61.850 provides:
KRS 61.805 to 61.850 [the Open Meetings Act] shall not be construed as repealing any of the laws of the Commonwealth relating to meetings but shall be held and construed as ancillary and supplemental thereto.
We do not agree with KCTCS that the language of this statute supports the view that the Open Records Act is somehow subordinate or inferior to the Open Meetings Act. Instead, KRS 61.850 firmly establishes that specific provisions of the Kentucky Revised Statutes that pertain to public meetings of specific public agencies are superior to the general provisions of the Open Meetings Act.
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7 See note 6 above.
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8 As in 02-ORD-142, note 2, this holding extends to schedules and minutes that are voluntarily maintained as well as schedules and minutes that are statutorily required per KRS 61.820 and 61.835, respectively.
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