Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Edmonson County Clerk violated the Open Records Act in the disposition of Edmonson County Attorney Gregory Vincent's May 13, 2008, request for copies of the "minutes of the Edmonson County Board of Elections meetings from January 2007 through May 2008." Mr. Vincent's request went unanswered, prompting him to initiate this appeal. For the reasons that follow, we find that the County Clerk committed both procedural and substantive violations of the Act in the disposition of Mr. Vincent's request.
On May 21, 2008, the Office of the Attorney General issued notification of receipt of Mr. Vincent's appeal per 40 KAR 1:030 Section 2. That notification advised the County Clerk that he could "respond to this appeal," but that his "response must be received no later than Wednesday, May 28, 2008." The County Clerk apparently elected to respond to this notification by delivering records to Mr. Vincent's office that consisted of:
. claim sheets and purchase orders;
. page 37 of the State Board of Elections Voter Registration Statistics Report for 12/18/06 and 07/16/07;
. a 3/1/07 memorandum from the Edmonson County Board of Elections to the Edmonson County Fiscal Court;
. a 3/26/07 memorandum from the Fiscal Court to the Board;
. 2 documents captioned "Polling Places," one dated 5/22/07 and the second dated 11/6/07;
. a 1/12/07 memorandum from the State Board of Elections to all county board of elections members relating to board "duty, membership, term, and meeting guidelines" ;
. a 10/26/06 "De Facto Inactive List" from the State Board of Elections;
. 2 handwritten documents on Edmonson County Board of Elections letterhead, one undated and the second dated 4/19/07.
Although the County Clerk did not advise us of this disposition of Mr. Vincent's request, Mr. Vincent did so by letter dated May 28, 2008. Noting that "these documents do not comply with my request," he observed:
The documents that I requested are the minutes of the Edmonson County Board of Elections. The documents that I received are not minutes from the Board of Elections meetings but are the pay sheets submitted to the Fiscal Court so that the members could be paid. There are also a few handwritten agendas as to what the clerk wished to discuss in the meeting. Since these documents do not comply with my requests, the clerk is still in violation of the open records act by failing to provide me with these documents . . . (and may be in violation of the open meetings law.)
Having considered the relevant authorities, we agree.
With reference to the records at issue in this appeal, namely minutes of Board meetings, we direct the parties' attention to KRS 61.835 which 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. Further, 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. Clearly, the failure to record minutes of a public agency meeting constitutes a violation of the Open Meetings Act and the failure to afford public access to those minutes no later than immediately following the next meeting of the agency constitutes a violation of the Open Records Act. 94-ORD-112; OAG 08-002, note 6.
With particular reference to county boards of elections, KRS 117.035(3) expressly provides:
A majority of the board [of elections] shall constitute a quorum. The county clerk shall serve as chairman of the meeting and may vote. In case of a tie, the chairman may cast an additional vote. Records shall be kept of all proceedings, and the records shall be public and kept at the office of the county clerk.
(Emphasis added.) Moreover, among the nonresponsive records released to Mr. Vincent by the Board on May 19 we have located a January 12, 2007, memorandum from the State Board of Elections to all county board of elections members, summarizing the board members' duties and meeting guidelines. The fourth bulleted item under the section captioned "Meetings" states, "Minutes shall be kept of all meetings, shall be kept at the county clerk's office, and are a public record."
Clearly, the failure of the Edmonson County Board of Elections to produce for Mr. Vincent's inspection the minutes of its proceedings from January 2007 to May 2008 constituted both a procedural and substantive violation of the Open Records Act. The Board violated KRS 61.880(1) in failing to respond to Mr. Vincent's request in writing and within three business days of receipt of that request, 1 and KRS 61.872 2 in failing to honor Mr. Vincent's "right to inspect public records. " Its belated disclosure of nonresponsive records did not mitigate these violations. As a corollary of this finding, we believe that the Edmonson County Board of Elections must immediately release the requested minutes to Mr. Vincent. 3
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:
Gregory VincentLarry (Butch) Carroll
Footnotes
Footnotes
1 KRS 61.880(1) provides:
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. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
2 KRS 61.872(2) provides:
Any person shall have the right to inspect public records. The official custodian may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected. The application shall be hand delivered, mailed, or sent via facsimile to the public agency.
3 Because the issue has not been presented to the Attorney General in an open meetings appeal, we do not address Mr. Vincent's concerns relative to the Board's apparent failure to record minutes of its meetings in contravention of KRS 61.835. Mr. Vincent is not, however, foreclosed from raising the open meetings issue in a separate appeal.