Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Newport Independent School District Board of Education violated the Open Meetings Act in the disposition of Robert Yoder's May 26, 2004, complaint concerning the District's conduct in relation to his request to permit a videographer employed by East Row Historic Foundation to videotape the school board's May 26, 2004, meeting for broadcast on the Newport Cable System's Public Access Channel. For the reasons that follow, we find that the Board violated KRS 61.846(1) in failing to respond to Mr. Yoder's complaint in writing, and within three business days, and that the Board violated KRS 61.840 in a course of conduct which prevented the videographer from recording the May 26 meeting.
On May 26, Mr. Yoder submitted a written complaint to Tete Turner, Chairperson of the Newport Independent School Board, in which he alleged that Superintendent Dan L. Sullivan refused to permit a videographer to record the May 26 Board meeting. Mr. Yoder referenced Mr. Turner and his April 22, 2004, discussion concerning this topic and his "understanding that [Mr. Turner] would inform the School Board and Superintendent Sullivan that [the May 26] meeting would be taped." As a means of remedying the alleged violation, Mr. Yoder proposed that the Board "reschedule this meeting at a mutually agreeable date and time when a videographer can be present." Having received no response to his complaint, Mr. Yoder initiated this appeal on June 17, 2004.
In correspondence directed to this office following commencement of Mr. Yoder's appeal, Board Attorney Carl Turner advised:
Pursuant to statutory notice, the Newport School Board conducted it's regularly scheduled monthly meeting on Wednesday, May 26, 2004. At no time prior to May 26, was the Board ever notified that a formal request was being made to videotape and broadcast it's regular meeting.
Mr. Yoder had, apparently, informally discussed the issue of videotaping and broadcasting School Board meetings with School Board Chair, Mr. Tete Turner, in April. Mr. Turner advised Mr. Yoder that he was certainly not adverse to the issue and that the Board would discuss the proper mechanism and procedures whereby such videography could be conducted in a non-obtrusive fashion so as not to adversely interfere with the business of the regular meeting. At the conclusion of the meeting on May 26, Mr. Yoder presented this correspondence/ complaint objecting to the meeting. As the minutes of the school board meeting (attached hereto) reflect:
The meeting of May 26 included various awards and recognition of teachers and staff which included many presentations to retired employees. The Board meeting room was filled to capacity with family and friends of those being honored, along with staff and others present for other purposes associated with the meeting.
At no point was Mr. Yoder advised that the School Board would not permit the televising and taping of it's proceedings, but rather that procedures should be adopted so as to ensure that such activities would be done in a manner so as not to significantly interfere with the conduct of the business of the board. In this regard, at the meeting of May 26, again as reflected in the minutes, the Board instructed the school staff to study all issues surrounding the issue of televising and videotaping it's meetings. This work is now underway.
It is the Board's position that its actions were neither "arbitrary [n]or unreasonable," and that those actions "comport with . . . 96-OMD-146 [sic]"disapproving "a regulation, rule, or policy, of a public body which uniformly prohibits the tape recording of a public meeting, " and recognizing that a person should be permitted to record meetings "so long as that person and his or her taping equipment do not interfere with the orderly conduct of the public meeting. " In sum, Mr. Turner argued, "the school system is exercising its lawful perogative [sic] to ensure that such activities will be conducted in a manner which will not adversely interfere with the conduct of it's business." Respectfully, we disagree.
To begin, the Newport Independent School District violated KRS 61.846(1) in failing to respond to Mr. Yoder's open meetings complaint. That statute provides that upon receipt of an open meetings complaint:
The public agency shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of the complaint whether to remedy the alleged violation pursuant to the complaint and shall notify in writing the person making the complaint, within the three (3) day period, of its decision. If the public agency makes efforts to remedy the alleged violation pursuant to the complaint, efforts to remedy the alleged violation shall not be admissible as evidence of wrongdoing in an administrative or judicial proceeding. An agency's response denying, in whole or in part, the complaint's requirements for remedying the alleged violation shall include a statement of the specific statute or statutes supporting the public agency's denial and a brief explanation of how the statute or statutes apply. The response shall be issued by the presiding officer or under his authority, and shall constitute final agency action.
In his letter of appeal, Mr. Yoder specifically alleges that he received no response to his complaint, and the Board does not contest this allegation. As the Kentucky Court of Appeals has noted with reference to the procedural requirements of the Open Records Act, in a statement that applies with equal force to the procedural requirements of the Open Meetings Act, "[t]he language of the statute directing agency action is exact."
Edmondson v. Alig., Ky. App., 926 S.W.2d 856, 858 (1996). It requires the agency to issue a written response within three business days of receipt of the complaint, and the failure to do so constitutes a violation of the Open Meetings Act. 96-OMD-261; 97-OMD-43; 00-OMD-142; 04-OMD-029. Accordingly, we find that the Newport Independent School District Board of Education violated KRS 61.846(1) in failing to respond to Mr. Yoder's open meetings complaint.
Turning to the substantive issue in this appeal, we find that the Board violated KRS 61.840 in engaging in conduct which precluded Mr. Yoder's exercise of the right to tape its May 26 meeting until "procedures [are] adopted so as to ensure that such activities would be done in a manner so as not to significantly interfere with the conduct of the business of the Board." KRS 61.840 provides:
No condition other than those required for the maintenance of order shall apply to the attendance of any members of the public at any meeting of a public agency. No person may be required to identify himself in order to attend any such meeting. All agencies shall provide meeting room conditions which insofar as is feasible allow effective public observation of the public meetings. All agencies shall permit news media coverage, including but not limited to recording and broadcasting.
In 96-OMD-143, a copy of which is attached hereto and incorporated by reference, the Attorney General declared that a policy prohibiting members of the public from taping open meetings of a public agency was inimical to the spirit and the letter of the Act. Based on the overwhelming weight of legal authority from other jurisdictions, and the statement of legislative policy codified at KRS 61.800, strongly affirming the notion of open government, we held that the public has a right to tape record a meeting of a public body subject only to the condition that the equipment used does not interfere with the orderly conduct of the meeting. Citing the case of
Sudol v. Borough of North Arlington, 137 N.J. Super. 149, 348 A.2d 216, 219 (1975)), along with the many other authorities, we concurred with the court's view that:
Accuracy in reporting the transactions of a public governing body should never be penalized, particularly in a democracy, where truth is often said to be supreme . . . . [I]f the making of a tape record is a . . . better method of memorializing the acts of a public body it should be encouraged.
96-OMD-143, p. 4. We expressly overruled OAG 85-74, limiting the public's right to tape a meeting, and endorsed the right of the average citizen to memorialize a public meeting on tape. See also, 01-OMD-166.
While we acknowledge that the Board has not established a policy prohibiting the recording of its meetings, it effectively denied Mr. Yoder's request to record the May 26 meeting while it "stud[ies] all issues surrounding the issue of televising and videotaping its meetings." The Board is statutorily directed to "permit news media coverage, including but not limited to recording and broadcasting, " and this statutory mandate has been construed to extend to members of the public. See 96-OMD-143; 01-OMD-166. Thus, the Open Meetings Act invests Mr. Yoder, and all other members of the public, with the right to tape that meeting and future meetings unless his, or their, individual conduct poses a threat to the maintenance of order. Because KRS 61.840 authorizes only those conditions on attendance that are " required for the maintenance of order, " we know of no legal basis for the Board's proposal to adopt "procedures to ensure that [the recording of its meetings will] be done in a manner so as not to significantly interfere with the conduct of" its business. Instead, we believe that the Board must permit the media and the public to record its meetings, and may impose restrictions or prohibitions only where individual circumstances warrant. See OAG 77-755, p. 3 (holding that prohibitions on recording of public meetings should only be imposed "where the facts definitely indicate that such prohibition was required to maintain order"). Clearly, the Board violated KRS 61.840 at its May 26 meeting by failing to recognize the public's right to record that meeting. Neither Mr. Yoder nor any other member of the public must await the Board's approval before recording the Board's meetings; nor is he, or the public generally, bound by any policies which circumscribes that right.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.846(4)(a). 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.
Robert Yoder510 Monroe StreetNewport, KY 41071
Carl TurnerJolly, Blau, Kriege & Turner, P.L.L.C.3699 Alexandria PikeP.O. Box 249Cold Spring, KY 41076
Tete Turner, ChairNewport Independent School Board 301 East 8th StreetNewport, KY 41071