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 Corydon violated the Open Records Act in the disposition of Carolyn J. Kalnins's June 13, 2003 request for a "copy of [the] taped City Council meeting of June 5, 2003." For the reasons that follow, we find that the City's disposition of Ms. Kalnins's request violated the Open Records Act. Because this appeal also raises records management issues, we have referred these issues to the Kentucky Department for Libraries and Archives for further inquiry as that agency deems warranted.
In a response dated June 13, 2003, Mayor Larry E. Owens notified Ms. Kalnins that pursuant to KRS 61.878(1)(i) "the council meeting minutes dated June 5, 2003 [are] still preliminary documents and cannot be acquired until approved at the next council meeting dated June 19, 2003." In an effort to clarify her request, Ms. Kalnins contacted the city clerk to explain that she wished to obtain a copy of the audio tape of the meeting not the meeting minutes. Ms. Kalnins indicates that the clerk advised her that "the tape was used to tape the minutes so she is not required to give it to [her]," and expressed the belief that the City was only required to disclose "the minutes after they are approved at . . . [the] council meeting. " Noting that in her tenure as a council person it was the City's practice to maintain tapes of meetings "for a period of six months to a year in case of litigation," Ms. Kalnins stated that the clerk "further claimed she erased the tape as soon as the minutes were typed. " It was Ms. Kalnins's belief, based on the City's prior practice, that the disputed tape "is still in existence."
In supplemental correspondence directed to this office following commencement of Ms. Kalnins's appeal, City Attorney Dane Shields advised:
By Request dated June 13, 2003, Ms. Kalnins requested a copy of the tape of the city council meeting of June 5, 2003. This tape was of a regular meeting of the city council. Since the minutes had not been approved by Council vote, a letter was mailed to Ms. Kalnins on June 13, 2003 indicating that the minutes would not be available until approval at the next council meeting on June 19, 2003. The mayor also indicated that the actual tape would not be given to Ms. Kalnins due to it being a preliminary document and therefore exempt from public inspection.
The city council approved the typed minutes of the June 5 meeting by council action dated June 19, 2003. A copy of these approved minutes were mailed to Ms. Kalnins on June 20, 2003. The actual tape recording of the June 5, 2003 council meeting was erased after the minutes were typed by the Clerk. Accordingly, a copy of the actual tape recording was not supplied to Ms. Kalnins. Ms. Kalnins is in error when she states that it is the procedure of the City of Corydon to keep the tapes for six (6) months. Since January 2003, the new administration erases the tapes once they are typed by the City Clerk for presentation to the next council meeting, for council approval.
It is the opinion of this office that although the City cannot now produce a copy of a public record that has apparently been destroyed, its denial of Ms. Kalnins's request was inconsistent with this office's holding in OAG 92-111, and succeeding open records decisions, and is indicative of improper records management practices.
In 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 a tape of a public meeting "falls squarely within the parameters of [KRS 61.870(2)], 1 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." Acknowledging that we had previously held that an agency need not release audio tapes of its meeting 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; 95-ORD-119; 97-ORD-14; 00-ORD-230; 01-ORD-167.
In a footnote, we issued the following precautionary note:
We do not mean to suggest that an agency is required to make and keep on file a recording of its public meetings under the Open Records Act. Nor do we mean to suggest that a secretary or clerk who personally purchases a tape and records the meeting on his or her own initiative to assist in the preparation of the minutes, must release the tape for public inspection. Under these circumstances, the tape could not be treated as a public record, but would instead be considered the clerk's personal property. See e.g., OAG 83-194 (holding that a copy of a deposition prepared by a stenographer is not a public record) . Our holding is limited to those instances when the agency directs that a tape is made of its public meeting, for whatever purpose, and that tape is purchased with agency funds. OAG 79-333, OAG 87-44, OAG 88-32, OAG 89-93, and OAG 91-49, modified accordingly.
OAG 92-111, p. 3. We therefore conclude that OAG 92-111 is controlling, and that the City of Corydon's refusal to provide Ms. Kalnins with a copy of the tape within three days of her request constituted a violation of the Open Records Act.
In addition, audio and videotapes of public meetings are scheduled public records for which a specific retention period has been established at Series No. L4940 of the Local Government General Records Retention Schedule, a copy of which is attached. That schedule provides that audio or video tapes may only be destroyed or erased and re-used "after minutes are formally accepted at [the] following meeting" and not after they are typed by the clerk. Accordingly, we have referred this matter to the Department of Libraries and Archives pursuant to KRS 61.8715 2 for any assistance that agency may be able to provide.
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.
Footnotes
Footnotes
1 KRS 61.870(2) defines the term "public record" as:
"[A]ll 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. "Public record" shall not include any records owned or maintained by or for a body referred to in subsection (1)(h) of this section that are not related to functions, activities, programs, or operations funded by state or local authority.
2 KRS 61.8715 provides:
The General Assembly finds an essential relationship between the intent of this chapter and that of KRS 171.410 to 171.740, dealing with the management of public records, and of KRS 11.501 to 11.517, 45.253, 171.420, 186A.040, 186A.285, and 194B.102, dealing with the coordination of strategic planning for computerized information systems in state government; and that to ensure the efficient administration of government and to provide accountability of government activities, public agencies are required to manage and maintain their records according to the requirements of these statutes. The General Assembly further recognizes that while all government agency records are public records for the purpose of their management, not all these records are required to be open to public access, as defined in this chapter, some being exempt under KRS 61.878.