Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Richmond Industrial Development Corporation violated the Kentucky Open Records Act in redacting portions of the minutes from regular public meetings provided to Frederic J. Cowan in response to his request for copies of "Any minutes, notes, correspondence or other public records of the [RIDC] or its predecessor concerning or relating to property owned by Arthur G. Pace, Marilyn Pace, or Pace Enterprises, Inc., including, but not limited to, public records involving the meeting of the Board of Directors on or about July 15, 2003." With respect to the Deed(s) of Easement, "Easement Relocation Agreement," and related correspondence, copies of which the RIDC provided to Mr. Cowan intact, any related issues are now moot per 40 KAR 1:030, Section 6. Because no statutory basis exists for denying access to all or any portion of the minutes from open, public meetings, RIDC erred in redacting portions of the responsive minutes regardless of whether the material would otherwise be removed from application of the Open Records Act pursuant to one or more of the exemptions codified at KRS 61.878(1) or could have properly been discussed during a closed session. To hold otherwise would contravene governing precedent.
By letter directed to Mr. James H. Howard, Executive Director, on August 10, 2005, Mr. Cowan requested that RIDC make available for inspection and copying the aforementioned records as well as "Any correspondence, emails, records of conversations or correspondence by and between James H. Howard and any member of the Board of Directors with respect to any property owned by Arthur G. Pace, Marilyn Pace or Pace Enterprises, Inc." On August 17, 2005, Walter G. Ecton, Jr., responded to Mr. Cowan's request on behalf of the RIDC via facsimile. Enclosed with Mr. Ecton's response sent via first class mail on the same day were copies of any existing responsive records in the custody of the RIDC. Acting in his capacity as counsel for RIDC, Mr. Ecton "redacted records that did not involve in any respect, property owned by Arthur G. Pace, Marilyn Pace or Pace Enterprises, Inc." According to Mr. Ecton, "the only other item redacted" consists of when he "or Bobby Sparlin counseled the [B]oard as their attorney and expressed opinions of a legal nature." Mr. Ecton "asterisked those 2 redactions. "
In reply, Mr. Cowan observed that the records provided "included heavily redacted minutes of the RIDC. There was no explanation of the redactions as required by KRS 61.[880.]" In addition, most of the documents were "minutes of public meetings." As such, "no portions of those minutes can be withheld unless such meetings properly went into executive session, which must be reflected in the minutes. " In support of this position, Mr. Cowan relies upon OAG 83-139 and OAG 81-387. Because none of the redacted material was preceded by an indication that the minutes "were those of an executive session, " Mr. Cowan asked Mr. Ecton to provide him with unredacted copies of all responsive minutes unless he could "demonstrate that those minutes were taken in a properly closed session as reflected in the minutes. " In a timely response, Mr. Ecton explained that he viewed Mr. Cowan's request as seeking only those minutes relating to Arthur G. Pace, Marilyn Pace and Pace Enterprises, Inc. Accordingly, Mr. Ecton redacted the records provided to Mr. Cowan based upon that assumption; he "did not further review the redactions to see if any of same came within the exceptions provided by KRS 61" since Mr. Cowan's request "was only for the above-referenced entities." As observed by Mr. Ecton, the "only exception had to do with the two paragraphs I separately asterisked, and this involved preliminary legal opinion or comment to client." In closing, Mr. Ecton advised Mr. Cowan that he had placed a call to the city attorney in order to determine whether the City "has a policy regarding same."
By letter dated August 29, 2005, Mr. Cowan initiated this appeal challenging the actions of the RIDC relative to his request. Having summarized the procedural history, Mr. Cowan observed that "Mr. Ecton provides no justification for redacting the records." There is "no indication in the records, mostly minutes, " that the Board went into closed session and the minutes involved closed sessions of the RIDC. In addition, Mr. Ecton has "failed to cite any exception as required by KRS 61.880(1) for RIDC's refusal to provide the redacted information." In Mr. Cowan's view, the RIDC "cannot now redact minutes of public meetings to exclude information that might otherwise fit into some exception under KRS 61.878." With respect to the materials that allegedly constitute privileged communications between attorney and client, Mr. Cowan asserts that he has "no idea what material or records Mr. Ecton is referring to" because of the redactions. However, "if expressed in the minutes of a board meeting," the material is subject to inspection and cannot be redacted. Mr. Cowan is correct in this assertion.
Upon receiving notification of Mr. Cowan's appeal from this office, Mr. Ecton supplemented his response on behalf of RIDC. According to Mr. Ecton, RIDC fully complied with Mr. Cowan's first request with the exception of those records "concerning the Board's attorney's legal opinion and/or advice (which were set out in Board's minutes) ." With respect to Mr. Cowan's second request, "all materials were fully and completely provided and none redacted or cited for exclusion." In addressing Mr. Cowan's allegation that the redactions are improper since the Board did not go into closed session, Mr. Ecton argues:
While it is true that the RIDC Board never formally went into an executive session, same would have been superfluous. The reason for this is because there never were any persons present other than the Board and its attorney when any matters were discussed requiring the Board to go into executive (closed) session. Further, the undersigned does not read OAG 83-139 or OAG 81-137, so broadly as to forfeit or waive the [agency's] right to exclude from disclosure, public records that may otherwise be excluded under KRS 61.878 just because an executive or closed session was not indicated in the minutes. To require same would be an unjustified expansion of the statute.
With respect to the accessibility of the "legal opinions/recommendations" at issue, Mr. Ecton indicates that RIDC did, in fact, cite two exceptions as authority for its refusal to provide the redacted information. "On the last page of the Board's April 19, 2005, minutes, (approved May 31, 2005) there is one four line paragraph that was redacted, and on the 2nd page of the Richmond Madison County Industrial Corporation's October 5, 1988 meeting, there is one three line partial paragraph redacted. " Attached to Mr. Ecton's response are copies of his previous letters as well as copies of the redacted minutes. As to the claim that RIDC failed to cite any exception as mandated by KRS 61.880(1), Mr. Ecton argues that the minutes provided in response to Mr. Cowan's request "included all minutes, notes, correspondence or other public records of the RIDC or its predecessor, concerning or relating to" the specified property. Except for the two redactions identified, "nothing responsive to Mr. Cowan's request was withheld. " Because much of the business conducted by RIDC as reflected in the minutes concerns "buying and selling property, relocation or courting of industry, or other matters that arguably fit within the exceptions" to the Open Records Act, Mr. Ecton "properly responded only to the specific request of Mr. Cowan, to wit: 'concerning or relating to property owned by Arthur G. Pace, Marilyn Pace, or Pace Enterprises, Inc.'"
In sum, RIDC responded in a timely manner and "fully complied" with Mr. Cowan's request with the exception of "the legal opinions/recommendations contained in the minutes. " In RIDC's view, the Open Records Act does not require the Board "to go into closed session to preserve its rights under KRS 61.878, especially under the circumstances" presented. Citing KRS 61.878(1)(j) and (l), Mr. Ecton contends that RIDC is entitled to withhold "legal opinions/recommendations by Board Counsel to his client." In addition, RIDC "properly excluded from disclosure information that was not requested and that may contain information which is otherwise properly excludable. " Because the position of RIDC is contrary to governing precedent, this office respectfully disagrees.
Assuming arguendo that RIDC is statutorily authorized to redact the materials in question, RIDC failed to satisfy the burden of proof imposed upon public agencies by KRS 61.880(2)(c) as to both the allegedly privileged information and those "matters that arguably fit within the exceptions" to the Open Records Act contained in the minutes provided. In 04-ORD-187, pp. 12-16, this office engaged in the analysis employed by the Attorney General in determining whether an agency has properly denied a request on the basis of the attorney-client privilege codified at Kentucky Rules of Evidence 503, incorporated into the Open Records Act by virtue of KRS 61.878(1)(l). Of particular relevance here, this office concluded that the Cabinet for Health and Family Services erred in adopting a policy of blanket exclusion relative to the responsive e-mails and any unidentified responsive records on this basis; the Cabinet had not "identified the records or groups of records withheld or adequately explained how the privilege applies to those records as required by KRS 61.880(1) and KRE 503." Id., pp. 16, 18. 1 In construing the mandatory language of KRS 61.880(1), the Kentucky Court of Appeals has observed:
The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents . . . . [W]e cannot agree [that a] . . . limited and perfunctory response to . . . [a] request even remotely complie[s] with the requirements of the Act--much less that it amount[s] to substantial compliance.
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996); 00-ORD-10, p. 10. Expanding upon this view, the Attorney General has consistently held:
While neither this office nor the Kentucky courts have ever required an itemized index correlating each document withheld with a specific exemption, such as that required by the federal courts in Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied 415 U.S. 977 (1974), we believe that [an agency] is obligated to provide particularized justification for the withholding of documents, or groups of documents, which are properly excludable [footnote omitted], and to release any documents which do not fall squarely within the parameters of the exception [or privilege] and are therefore not excludable.
97-ORD-41, p. 6; 00-ORD-10, p. 10. In 97-ORD-41, the Attorney General suggested that the agency "might characterize one or more of the records withheld as 'correspondence from [the agency's attorney] to the [agency] on questions pertaining to franchise renewal,' and deny access on the basis of KRS 61.878(1)(l) and KRE 503 as privileged lawyer client communication which was not disclosed to third persons." Id., p. 7; 00-ORD-10, p. 10. Such is not the case here; the allegedly privileged communications at issue are memorialized in minutes of public meetings. More generally, the Attorney General has said:
Although there is no clear standard of proof under the Kentucky Open Records Act, with one narrow exception [codified at KRS 61.872(6) which requires clear and convincing evidence to support denials resulting from unreasonably burdensome requests], it is clear that the burden of proof in sustaining public agency action in the event of an appeal to the Attorney General, or to the circuit court, is on the agency. KRS 61.880(2)(c); KRS 61.882(3). It is also clear that a bare assertion relative to the basis for denial . . . does not satisfy the burden of proof. . . .
00-ORD-10, pp. 10, 11, citing 95-ORD-61, p. 2. In short, neither the original nor the supplemental response of RIDC contains the specificity envisioned by KRS 61.880(1). Belatedly citing the exceptions that allegedly apply to the information or records withheld, as RIDC did with respect to KRS 61.878(1)(j) and (l), 2 and generally describing the remainder of the materials redacted as relating to "buying and selling property, relocation or courting of industry, or other matters" that arguably fall within the parameters of KRS 61.878, without citing the specific exception being invoked or further explaining how the exception applies, does not suffice. That being said, minutes of open, public meetings are subject to inspection in their entirety as evidenced by the following authorities.
KRS 61.835 is entitled "Minutes to be recorded - Open to public." Pursuant to KRS 61.835:
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 OAG 81-387, the Attorney General was asked to clarify whether a public agency, namely, the Board of Education, is required to keep minutes of closed sessions. Relying upon County Board of Education of Warren County v. Durham, 198 Ky. 733, 249 S.W. 1028 (1923), this office began by noting that a public agency "only speaks authoritatively through its minutes. " OAG 81-387, p. 2. Citing KRS 61.835, the Attorney General therefore concluded that minutes of open meetings must, at a minimum, "record formal motions made in a meeting and the vote of the members on the motion." Id. Any additional content is included as "a matter of parliamentary procedure" and at "the discretion of the public body. " Id.
In order to determine the meaning of the term "minutes" for purposes of the Open Meetings Act, the Attorney General consulted "the foremost authority on parliamentary procedure, Roberts' Rules of Order [citation omitted]," observing as follows:
Roberts says that minutes should contain mainly a record of what was done at the meeting, not what was said by the members. Roberts makes no distinction as to open meetings and closed or executive sessions but does discuss the situation when a deliberative assembly forms itself into "a committee of the whole" and says that "the proceedings of a committee of the whole should not be entered into the minutes, but the fact that the assembly went into committee of the whole and the committee report should be recorded. " Id., p. 391. We believe that when a public body goes into closed session by statute it is, in effect, a committee of the whole and, therefore, the proceedings of the closed session should not be entered in the minutes except to show that the closed session was held and if a formal action was taken in the closed session.
OAG 81-387, p. 2 (emphasis added). In relevant part, this office held that minutes of a meeting, whether open or closed, are not required to reflect any more than the formal action taken and the votes cast by the members. Id. Public agencies may exercise discretion as to whether "an additional record should be made of a closed session" beyond the statutory minimum. Id.
Agencies are "not required to summarize the discussion or record what any of the members said" in minutes as RIDC apparently did here. However, the fact that RIDC opted to document such discussions in minutes of open, public meetings does not render the content of those minutes exempt. If, at the meeting in question, "nothing was decided or acted upon or voted upon the minutes could, under KRS 61.835, consist of nothing more than a record of the actions which opened and adjourned the meeting. This material would be subject to inspection. " 05-OMD-188, p. 4, citing 95-OMD-64, p. 4 (emphasis added). Both the Open Meetings Act and the Open Records Act "mandate public access to the minutes of a public body. " OAG 83-139, p. 1 (". . . no final action is to be taken in a closed session and action taken in an open session after a closed session should be recorded in the minutes and made available to the public").
When the agency holds a closed session, the minutes of the meeting must show that the agency observed the formalities codified at KRS 61.815(1) before going into closed session, and cite the applicable exception of those listed at KRS 61.810(1) as authority, "but need not show information which would defeat the purpose of holding a closed session on authorized subject matter. " OAG 81-387, p. 2; OAG 83-139. In reaffirming this principle, the Attorney General held that "minutes of a properly conducted executive or closed session of a meeting of a public agency need not be made available for public inspection or even recorded to the extent that doing so would defeat the purpose of conducting the closed session" with the necessary implication being that minutes must be recorded and available when the formalities for conducting a closed session are not observed. OAG 87-10, p. 3 (emphasis added); 94-OMD-110. While this office has "never expressly held that minutes of an improperly conducted closed session are subject to inspection, we believe this proposition is an obvious corollary of the first." 92-ORD-1346, p. 2. Nowhere in KRS 61.835, the provision governing minutes, or the line of decisions construing this provision, is there any authority for the proposition that portions of minutes recording the subject matter discussed at open, public meetings can be redacted after the fact because the minutes contain more information than is required.
In our view, the reasoning of 01-ORD-87 is determinative as to the accessibility of minutes like those at issue. Having concluded that the protection afforded by KRS 61.878(1)(c)(1) does not extend to records generated by or for a public agency, including minutes of the agency's public meetings, the Attorney General held:
In the case of minutes of regular meetings, such records are not "confidentially disclosed to any agency or required by an agency to be disclosed to it" nor are they "generally recognized as confidential or proprietary." The fact that comments were ill-advisedly made in the course of an open, public meeting that placed the [Franklin Electric Plant Board] at a risk of competitive harm is not enough to bring minutes reflecting those comments within the scope of KRS 61.878(1)(c)(1). Bearing in mind that "the exceptions provided for by KRS 61.878 . . . shall be strictly construed," we find that the [Board] improperly relied on this exemption. KRS 61.871.
Moreover, with respect to minutes of a public agency, KRS 61.835 places an affirmative duty on the agency to make those minutes "open to public inspection at reasonable times no later than immediately following the next meeting of the body." No claim is made that these comments were made in a properly conducted closed session, and no statutory basis exists for denying access to all or any part of the minutes of an open, public meeting. We believe that the Board erred in refusing to disclose the minutes in their entirety, and is obligated to immediately furnish Mr. Breisach with unredacted copies of those minutes.
01-ORD-87, pp. 7-8 (emphasis added). Such is the case here. In fact, RIDC concedes "that the Board never formally went into an executive session. " Although the actions of RIDC may have been ill-advised, the comments are therefore a matter of public record to which none of the statutory exceptions apply.
Contrary to Mr. Ecton's assertion, a closed session is the statutory mechanism by which the General Assembly afforded public agencies the ability to shield protected discussions from public scrutiny; the formalities codified at KRS 61.815 are mandatory rather than "superfluous" regardless of whether anyone else was present at the meetings in question. Simply put, minutes of a public meeting are properly characterized as public records per KRS 61.835 which are open to public inspection in their entirety. Exemptions to the Open Records Act are neither applicable nor relevant in this context. Because the instant appeal presents no reason to depart from prior decisions by this office construing KRS 61.835, the same result necessarily follows. RIDC admittedly discussed the subject matter outside the confines of a closed session on more than one occasion, and memorialized the discussions in the minutes of those meetings; no statutory basis exists for denying access to all or any part of those minutes.
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.
Distributed to:
Frederic J. CowanLynch, Cox, Gilman & Mahan P.S.C.500 West Jefferson Street, Suite 2100Louisville, KY 40202-2812
James H. HowardExecutive DirectorRichmond Industrial Development Corporation239 West Main StreetP.O. Box 250Richmond, KY 40476-0250
Walter G. Ecton, Jr.Ecton & Harhai, PLLC125 South Third StreetRichmond, KY 40475
Footnotes
Footnotes
1 To the extent that RIDC indirectly references or implicitly relies uponKRS 61.810(1)(b) and (g) in redacting those materials associated with "buying and selling property, relocation or courting of industry," or KRS 61.810(1)(c) as the basis for redacting "legal opinions/recommendations, " all of which are exceptions to the general rule of openness codified at KRS 61.810(1), RIDC is necessarily unable to satisfy its burden of proof in either case by demonstrating that it properly went into closed session pursuant to such authority given RIDC's admission that the Board never "formally" went into closed session at all. See 05-OMD-032, a copy of which is attached hereto for the parties' reference, for the analysis employed by this office relative to KRS 61.810(1)(b). Most recently, this office addressed whether a public agency properly relied upon KRS 61.810(1)(g) in 05-OMD-148. In construing KRS 61.810(1)(c), the Kentucky Supreme Court reasoned:
. . . the courts of the Commonwealth must narrowly construe and apply the exceptions so as to avoid improper or unauthorized closed, executive or secret meetings.
. . . [T]he drafters of the legislation clearly envisioned that this exception would apply to matters commonly inherent to litigation, such as preparation, strategy or tactics. Obviously, anything that would include the attorney-client relationships would also fall within this exception. The statute expressly provides that the litigation in question need not be currently pending and may be merely threatened. However, the exception should not be construed to apply "any time the public agency has its attorney present" or where the possibility of litigation is still remote. . . . As properly noted in Jefferson County Board of Education [v. The Courier-Journal, Ky. App., 551 S.W.2d 25 (1977)], the matters discussed under KRS 61.810(1)(c) must not be expanded to include general discussions of "everything tangential to the topic."
Floyd County Board of Education v. Ratliff, Ky., 955 S.W.2d 921, 923-24 (1997); 00-OMD-219; 99-OMD-6. Absent evidence that matters "commonly inherent to litigation" were being discussed, RIDC would therefore be unable to successfully invoke this exception.
2 See 04-ORD-187, pp. 19-25 for the analysis employed by this office in determining whether a public agency has properly invoked KRS 61.878(1)(i) and (j).