Opinion
Opinion By: Jack Conway, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the actions of the City of Elsmere relative to the request of Cindy Lawrence for certain of the City's records violated the Open Records Act.
By letters dated August 4, 2008, Ms. Lawrence made seven separate open record requests to inspect the following records:
1. The audio recording, audio/ video recording and meeting minutes of the Elsmere City Council Meeting wherein the city auditor presented the annual financial audit to Elsmere council for the fiscal year ending June 30, 2006.
2. The audio recording, audio/ video recording, special audit report(s), meeting minutes, and documents requested to be attached, to the Elsmere City Council Meeting wherein the council auditor Clark, Schaffer & Hackett presented the special audit to Elsmere council in mid 2007. I believe this meeting took place around May 2007.
3. The audio recording, audio/ video recording and meeting minutes, and documents requested to be attached, to the Elsmere City Council Meeting wherein council read a statement and voted "No Confidence" in Elsmere Mayor Billy Bradford. I believe this meeting took place around June 2007.
4. The audio recording, audio/ video recording and meeting minutes, and documents requested to be attached, and transcription to the Elsmere City Council Meeting wherein council presented the facts surrounding their statements and vote of "No Confidence" in Elsmere Mayor Billy Bradford. I believe this meeting took place around October 2007.
5. The audio recording, audio/ video recording and meeting minutes of the Elsmere City Council Meeting wherein the city auditor presented the annual financial audit to Elsmere council for the fiscal year ending June 30, 2007 and in which the auditor stated expressed concerns about the bonus payments, payroll in accordance to KRS pay ordinance, and compliance and internal control problems discussed over the past several years. I believe this meeting took place around March 2008.
6. The audio recording, audio/ video recording and meeting minutes of the Elsmere City Council Meeting wherein the council questioned the actions the Mayor has taken to correct the financial recordings of the city, the employees earnings statements and Internal Revenue Service obligations with reference to the unreported cash Christmas bonus payments. I believe this meeting took place around April 2008.
7. Any and all lists prepared by Nancy Bowman, city treasurer, and provided to Elsmere City Council of city employees who received cash Christmas bonus payments. The list or lists, which may include email and other written communications from administrative staff, were part of the documents council relied on in their statement and vote of "No Confidence" in Billy Bradford.
By letter dated August 7, 2008, Paul R. Markgraf, Elsmere City Attorney, responded to Ms. Lawrence's request, advising her that the City was not in possession of any videotape recordings of the meetings she requested. He explained that if such video copies existed, they would be available through the Telecommunications Board of Northern Kentucky (TBNK). He further advised, in relevant part:
Regarding the audio recordings of these minutes, you should be aware that the audio recordings were made for the purpose of assisting the City Clerk in preparing minutes of the meetings. As such, these audio recordings fall within the exceptions of Open Records Requests under KRS 61.878(1)(g). I enclose a copy of Attorney General Opinion No. 89-93 in support of this position. However, the City of Elsmere will waive this privilege for the purposes of honoring your requests if audio copies are still available. However, there will be a cost for reproducing the audio portion of these meetings on CD. The cost will be $ 10 per meeting.
Regarding the inspection of approved meeting minutes for each of these meetings, the minutes are available for inspection during normal business hours at the Elsmere City Building. If you wish to make copies of any meeting minutes, the charge will be 10 cents per page.
Shortly thereafter, Ms. Lawrence initiated the instant appeal, raising three issues. First, she asserted that, since the DVD of the meetings are paid for with resident's tax dollars, the DVD should be retained by the City and made available as a public record. Secondly, she failed to see how KRS 61.878(1)(g) relating to "test questions, scoring keys, and other examination data . . . ." applied to her request for audio recordings of the minutes, which the City had indicated were made for the purpose of assisting the city clerk in preparing the minutes of the meetings. Thirdly, she challenged the City's $ 10 fee for reproducing the audio portion of each meeting on CD as excessive.
After receipt of notification of the appeal, Mr. Markgraf provided this office with a copy of his August 18, 2008, response to Ms. Lawrence addressing the issues she raised in her appeal. He advised that the City's reliance upon KRS 61.878(1)(g) was a typographical error and explained that the correct exception was KRS 61.878(1)(i), pertaining to "preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final agency action. Addressing Ms. Lawrence's request for a DVD of the meeting, he stated he was mistaken as to the availability of DVDs of some meetings of the City Council, advising that only the first meeting of the month was generally televised by TBNK. He further advised that in order to determine whether the City was in possession of electronic copies of various meetings where specific items were discussed, Ms. Lawrence would need to come to the City Building to examine meeting minutes to narrow down which particular meetings she wanted electronic copies to enable the City to search for the electronic copies of the meetings, as well as audio recordings. Finally, addressing the cost to reproduce the DVDs and audio recordings, he advised that because the City did not have the capability to reproduce a DVD, they would be reproduced commercially and she would be charged the actual cost of reproduction. Addressing her August 4, 2008, request for a list or lists prepared by the city treasurer and provided to the city council, he advised that, unless the documents were part of minutes of a specific meeting, they would be exempt from disclosure as notes and documents, under KRS 61.878(1)(i).
By letter dated August 27, 2008, Ms. Lawrence provided this office with a reply to the City's August 18, 2008, response to her. In her reply, she stated that she should be able to use the City's television and view the DVDs before being required to pay for them. She further advised that she had reviewed the minutes and the clerk at the City had been unable to find certain lists, documents, audit reports and transcripts that had been either attached or presented at the meetings. Referring to the audio recordings, she stated that she had been advised by several council members that they had received audio files in the past to make corrections to meeting minutes.
On September 2, 2008, Mr. Markgraf responded to Ms. Lawrence's August 27, 2008, reply, advising her in part:
The Assistant Clerk/ Typist will locate the documents for which you have given specific dates of meetings. The only date you have given is the Special Meeting of October 2, 2007. But, again, you have not given dates of specific meetings in your letter for the requests made in your original Letter #2, Letter #3, Letter #4, Letter #5, or Letter #6. The Assistant Clerk cannot produce these documents at a moment's notice, especially when you do not provide a date. This is why you were requested to review minutes to give specific dated for your requests.
Ms. Ryan is doing her best to accommodate your requests. She is also contacting the City Clerk, who remains on maternity leave, to assess the location of the remaining documents as stated in your letter.
?
It is my understanding that the City of Elsmere possesses a television set and VHS player. It does not have a DVD player as stated in your letter. If such a player would be available at the City Building at 318 Garvey, you would be welcome to view the DVD copies prior to ordering a copy.
We address first the three issues raised by Ms. Lawrence in her letter of appeal. Her first issue was that, since the DVD of the meetings were paid for with tax dollars, they should be retained by the City. In response, the City advised that its initial response was in error as to the availability of the DVD and that the first meeting of the month was generally televised and those would be available. The City further advised her that unless she could provide the exact dates of meetings she was requesting, she would need to inspect the meeting minutes to determine which particular meetings she wanted so the City could determine if DVDs and audio recordings existed. These responses cannot properly be characterized as a denial. KRS 61.872 governs access to public records. Pursuant to KRS 61.872(3): A person may inspect the public records:
(a) During the regular office hours of the public agency; or
(b) By receiving copies of the public records from the public agency through the mail. The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency. If the person requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing. (Emphasis added).
In other words, the Open Records Act contemplates access to records "by one of two means: On-site inspection during the regular office hours of the agency, in suitable facilities provided by the agency, or receipt of the records from the agency through the mail. " 03-ORD-067, p. 4.
Ms. Lawrence advised that she has reviewed the meeting minutes for the time period in which she is interested, and the City has indicated that she had provided the date for the Special Meeting of October 2, 2008, but not the dates of other meetings in her request. Since she has viewed the minutes, Ms. Lawrence should provide the dates of the precise meetings in which she is interested to enable the City to locate and provide records related to them. Accordingly, the parties should mutually cooperate to resolve any differences or misunderstandings related to records sought.
The second issue related to the City's citing KRS 61.878(1)(g) as a basis for the City to deny access to an audio recording used in preparing meeting minutes. The City explained that this was a typographical error and stated the correct exception should have been KRS 61.878(1)(i), which allows for nondisclosure of preliminary notes and documents. We need not address this issue as the City in its response waived the operation of this exception and stated it would honor Ms. Lawrence's request for the audio recordings if they were available.
The third issue was Ms. Lawrence's contention that the City's $ 10 charge for reproducing the audio portion of each meeting on CD as excessive. In response to this issue, the City advised that it was going to have the audio recordings and DVDs reproduced commercially; and Ms. Lawrence would be charged the actual cost of reproduction. KRS 61.874(3) provides:
The public agency may prescribe a reasonable fee for making copies of nonexempt public records requested for use for noncommercial purposes which shall not exceed the actual cost of reproduction, including the costs of the media and any mechanical processing cost incurred by the public agency, but not including the cost of staff required.
(Emphasis added.) However, this issue is not ripe for adjudication as Ms. Lawrence has not yet requested a copy nor been charged such a fee. In this regard, Ms. Lawrence indicated that she should be able to review the DVDs before being required to pay for them. We agree. The City asserts that it has no DVD player, begging the question, why the City maintains records in this format. However, the City has stated that if such a player would be available at the City Building at 318 Garvey, she would be welcome to view the DVD copies prior to ordering a copy. Again the parties should mutually cooperate and make arrangements so Ms. Lawrence can inspect the DVDs.
Finally, Ms. Lawrence advised that she had reviewed the minutes, and the clerk of the City had been unable to find certain lists, documents, audit reports and transcripts that had been either attached or presented at the meetings. In response to this issue, the City advised Ms. Lawrence that the assistant clerk was doing her best to accommodate her requests and was also contacting the City Clerk, who remains on maternity leave, to assess the location of the remaining documents mentioned by Ms. Lawrence in her letter of August 27, 2008. Again, the City has not denied access to these records, but is still trying to locate them. As noted above, if she has not already done so, Ms. Lawrence should provide the dates of the precise meetings in which she is interested to enable the City to locate and provide records related to them.
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 proceedings.