Opinion
Opinion By: Gregory D. Stumbo,Attorney General;James M. Ringo,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Northern Kentucky Independent District Board of Health (Board) violated the Open Records Act in denying Carol L. Daniel's requests for copies of "July through Dec. 2006 Personnel Board Meeting Packets" and the "4-18-06 Personnel Board Meeting Packet. " For the reasons that follow, we conclude that the Board properly denied Ms. Daniel's request insofar as it has no obligation to honor a standing request for "board packets. " In responding to an open records request for an existing packet, the Board must review its contents before issuing a blanket denial and must separate or redact excepted material and make the nonexcepted material available for inspection.
We first address Ms. Daniel's standing request for copies of the July through December 2006 Personnel Board Meeting Packets. In 99-ORD-155, we held that the Hart County Board of Education was not obligated to honor a standing request for access to Board Packets for upcoming meetings. In reaching this holding, we quoted the following language from 99-ORD-110:
99-ORD-110, p. 3. In 99-ORD-110, the Attorney General affirmed this line of decisions and concluded that the Bullitt County Sheriff need only honor requests for existing records, meaning records which have been 'prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2). Pursuant to KRS 61.872(2), we further held that the sheriff could require the requester to submit a new request each time he wished to inspect the department's records. We find that the logic of these decisions extends to the appeal before us.
The right to inspect public records attaches only after those records have been prepared, owned, used, in the possession of, or retained by the Hart County Board of Education. No such right attaches for records which have not yet come into existence. Simply stated, the Open Records Act governs access to existing public records. To the extent that [the requester's] request is prospective, the Board is not obligated to honor it.
99-ORD-155, pages 2 and 3. Accordingly, the Board is not obligated to honor Ms. Daniel's standing request for copies of the July through December 2006 Personnel Board Meeting Packets.
In response to Ms. Daniel's request for the "4-18-06 Personnel Board Meeting Packet, " the Board initially advised that she would need to make her open records request in writing and upon receipt of the written request, she could pick up the packet at the Board office, upon payment of the appropriate copy fees. Ms. Daniel was also informed that confidential information that can be tied to individual (Social Security numbers, addresses, etc.) may be omitted or blacked out. However, in subsequent correspondence, John Gerard Patten, counsel for the Board, advised that the Board had some concerns about release of all contents of the packet as the Health Department employed about 150 people and the packet contained a lot of private information. He further advised Ms. Daniel that he was seeking an opinion from the Attorney General as to whether the packets are subject to the Open Records Act. 1
With respect to the issue of the content of the board packets, we offer the following guidance. Upon presentation of a properly framed request for existing records, it is incumbent on the Board to review the materials in the packet before issuing a blanket denial. If the packets contain material which is not excepted under KRS 61.878(1)(a) through (n), the Board must "separate the excepted and make the nonexcepted material available for examination." KRS 61.878(4). Further, the Board must identify any records withheld and cite the exception upon which it relies in denying access. KRS 61.880(1). "While neither this office nor the Kentucky courts have ever required an itemized index correlating each document withheld to a specific exemption, such as that required by the federal courts in
Vaughn v. Rogers, 484 F.2d 830 (D.C. Cir. 1973) cert. denied 415 U. S. 977 (1974), . . . we believe that the Board is obligated to provide particularized justification for the withholding of documents, or groups of documents, which are properly excludable, and to release any documents which do not fall squarely within the parameters of the exceptions and are therefore not excludable. " 97-ORD-41, p. 6, 7; 99-ORD-155.
We address next the issue as to whether the Board can be required to provide the public with copies of the minutes in advance of the meeting. The Open Records Act does not speak to this issue. We believe that whether to distribute the packets in advance of a meeting would be a matter of discretion of the public agency. However, if an agency adopts a policy of distribution of the packet to the public in advance of the meeting it must be applied uniformly to all. Addressing this issue in 99-ORD-155, page 3, this office stated:
Nevertheless, we believe that it is incumbent on the Board to adopt a uniform policy relative to release of board packets. In an early opinion, the Attorney General recognized that "agencies should have uniform policies regarding inspection of their records. If one person (in the absence of a court order) is allowed to inspect a record, all should be allowed to inspect. " OAG 82-394, p. 5. As we subsequently observed, the exceptions to public inspection:
OAG 82-394, p. 3; OAG 82-234; OAG 89-79 cited in OAG 92-30 and 95-ORD-9.
It is not proper to selectively enforce the exceptions. If, as [the requester alleges, the Board has, at past meetings, released copies of its agenda packets to selected members of the audience, its actions are inconsistent with the spirit, as well as the letter, of the Open Records Act. KRS 61.872(2) clearly provides that " any person shall have the right to inspect public records. " (Emphasis added.) [The requester] , or his designee, must be accorded the same treatment as any other person who attends the Board's meetings, and the decision to release materials in the packets must turn on the content of the record, not the identity of the individual asserting his right of access.
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 party in that action or in any subsequent proceeding.
Carol L. Daniel3403 Cedar Tree LaneErlanger, KY 41018
Gary Crum, Ph.D.District Director of HealthAdministrative and Environmental Center610 Medical Village Dr.Edgewood, KY 41017
John Gerard PattenAttorney at Law1407 Alexandria PikeFort Thomas, KY 41075-2527
Footnotes
Footnotes
1 By letter dated May 17, 2006, Mr. Patten submitted a request to the Attorney General advising that the Board had received an open records request to obtain copies of the packets in advance of Personnel Board meetings. With his request he attached a sample packet containing, inter alia, exit interviews and social security numbers and requested guidance on whether the packets were discoverable by a member of the general public under the Open Records Act. The Attorney General declined to issue an opinion, advising that since the Board had already received an open records request raising the issue, this office could not advise the Board how to handle such a request without compromising its impartiality in the event that an appeal from your decision is filed.