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 Lewis County Board of Health's denial of Terry Highfield's request to review the minutes of the Board's December 3, 2002 and December 13, 2002 meetings violated the Open Records Act. For the reasons that follow, we conclude that the agency's actions, with the exception of a procedural deficiency, did not violate the Act.
By letter dated December 16, 2002, Mr. Highfield requested to inspect a copy of the agenda and minutes of the Board's December 6, 2002 meeting and, if prepared and available, a copy of the agenda and minutes of the Board's December 13, 2002 meeting.
In his letter of appeal, dated January 22, 2003, Mr. Highfield stated, in relevant part:
The administrator claims that the records have not been approved by the Lewis Co. Board of Health. I do not agree because the records of the meeting on 12/6/02 should have been approved at the meeting of 12/13/02. This would be in compliance with KRS 61.835.
As of 1/22/03, I have received no written response from George Plummer or Kathleen Ginn.
After receipt of Notification of the appeal and a copy of the letter of appeal, Clayton G. Lykins, Jr., Lewis County Attorney, on behalf of the Board, provided this office with a response to the issues raised in the appeal. In his response, Mr. Lykins advised:
This is a response to your letter dated January 22, 2003 concerning a request to review minutes of the Lewis County Board of Health.
The complaint alleges that Mr. Highfield was unable to review the minutes of a December 6, 2002 and a December 13, 2002 meeting. The written request to view and/or copy the agenda and minutes was dated December 16, 2002.
The December 13th meeting, according to the Health Care Administrator, was a recessed meeting from the regular December 6th meeting. Minutes would not be approved, and therefore not official until the next quarterly meeting which would occur by the end of March, 2003. Minutes would be available for inspection after approval by the Board.
We are asked to determine whether the actions of the Board violated the Open Records Act. We conclude that, except for the failure to respond to the request in writing, the Board's actions did not violate the Act.
A public agency to which an open records request is made must comply with KRS 61.880(1) in responding to that request regardless of whether it has the requested records or not. KRS 61.880(1) provides in relevant part:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision.
"The procedural requirements of the Open Records Act, " this office has often observed, "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. Mr. Highfield's letter of appeal states that the Board's administrator had advised him that the minutes had not been approved yet. This indicates communication between the parties in regards to the request. However, KRS 61.881(1) requires that an agency's response to an open records request be in writing. The Board's failure to respond to Mr. Highfield's request in writing within three business days after its receipt constituted a procedural violation of the Open Records Act.
We next address the Board's denial of the request to inspect the minutes of the December 6, 2002 and the December 13, 2002 meetings. The Board in its response to the letter of appeal has advised that the December 13, 2002 meeting was a recessed meeting of the December 6, 2002 meeting and, as such, the minutes of the regular and recessed meeting would not become official until approved and adopted by the Board at its next quarterly meeting in March, 2003.
As we noted in noted in 03-OMD-021, at page 7, a decision involving these same two meetings, if in fact the December 6th meeting was a regular meeting and the facts reflect that a motion was made to recess or to adjourn the meeting to December 13th, and a quorum of the Board voted to do so, then the December 13th meeting would constitute an "adjourned meeting." Under these facts, the Board could properly deny a request to inspect minutes that have not yet been formally approved and adopted by the public agency.
KRS 61.835 specifically 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.
(Emphasis added.) In construing this provision, the Attorney General has stated that "both the Open Meetings Statute, KRS 61.805 to 61.850, and the Open Records Statute, KRS 61.870 to 61.884, mandate public access to the minutes of a public body." OAG 83-139, p. 2. Nevertheless, we have opined:
[A] public agency . . . speaks through its minutes as to actions taken and the minutes of the public agency should be made available to the public as soon as they are finally approved by the [agency] and such approval should be no later than the next [agency] meeting.
OAG 80-421, p. 3. This is because written and shorthand notes:
made in a meeting for the purpose of preparing the minutes are only preliminary records and may therefore be withheld from public inspection. Actions taken by a public agency or board must be recorded in the minutes and the minutes will become official after they have been approved at the next meeting of the Board. The Board members, of course, can challenge the secretary's draft of the minutes of the meeting and it is for the majority of the Board to decide whether to accept the draft and make if official, or order a revision.
OAG 79-333, p. 1, 2.
Based on the reasoning of these decisions, we find that the Board did not violate the Open Records Act in failing to provide Mr. Highfield with a copy of the minutes of its regular December 6th meeting and the December 13th recessed or adjourned meeting on the basis that they had not been approved and adopted as the official minutes of the Board. 98-ORD-36.
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.