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 Mayor of the City of Cumberland, Loretta H. Cornett, violated the Open Records Act in the disposition of Carl R. Hatfield's October 22, 2009, request for "a copy of [the City Council's] October 13, 2009, meeting minutes and the executive order appointing Mr. Stagnolia to conduct city affairs and preside at Council meetings in [the Mayor's] absence." We find that although the Mayor's response was procedurally deficient, she properly withheld the unapproved minutes of the October 13 meeting. Because the facts concerning the existence of a signed copy of the executive order appointing Mr. Stagnolia to serve as mayor in her absence are in dispute, this office cannot conclusively determine if Mayor Cornett properly withheld that order.
In a handwritten note dated October 27 that appeared at the bottom of Mr. Hatfield's October 22 request, Mayor Cornett advised:
(1) Minutes are not legal until passed which will be Nov. 2009[;]
(2) Check back[.] I might not be out of town.
Dissatisfied with this response, Mr. Hatfield renewed his requests on October 28. Having received no response, he telephoned the Mayor on November 2. She indicated that she would not provide him with copies of the requested records. Shortly thereafter, he initiated an open records appeal.
In correspondence directed to this office following commencement of that appeal, Cumberland City Attorney S. Parker Boggs defended the Mayor's response to Mr. Hatfield's request. He indicated that she:
responded that the minutes were not effective ("legal") until approved ("passed") by the Council at the next meeting of the Council ("November"). She also responded that no Executive Order delegating her executive and administrative powers, duties and responsibilities was being utilized because she was not absent from the City. The Executive Order as an official document did not exist; not signed, not dated, not entered, not effective. Merely a draft existed in her office in the event she would be "out of town" and needed to delegate her power. She personally responded to Mr. Hatfield that she was not absent and that there was no Executive Order: "Check back. I might not be out of town."
Continuing, Mr. Boggs stated that the requested minutes were approved at the Council's November 10 meeting and a copy provided to Mr. Hatfield along with a letter from the Mayor "restating that the Executive Order requested concerning the Mayor's delegation of powers during her absence did not exist."
Mr. Hatfield contested these arguments in later correspondence addressed to this office, noting that the approved minutes of the October 13 meeting reflect that when questioned about the appointment of Mr. Stagnolia as acting mayor, Mayor Cornett replied that she "already ha[d] an Executive Order in [her] office now." He questioned the Mayor's interpretation of KRS 61.835 , requiring the recordation of meeting minutes to be made available "no later than immediately following the next meeting of the body," and the accuracy and adequacy of her October 27 response. We concur with Mr. Hatfield in his view that Mayor Cornett's response was procedurally deficient, but find no error in the Mayor's denial of his request for unapproved meeting minutes. Given the factual dispute between the parties regarding the existence of a properly executed executive order, we make no finding on the propriety of the Mayor's denial of Mr. Hatfield's request for the executive order.
Mayor Cornett violated KRS 61.880(1) by failing to articulate her denial of Mr. Hatfield's request in a manner consistent with the procedural requirements contained therein. That statute 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.
Although issued within three business days of receipt, the Mayor's response did not "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. " Her assertion that minutes of meetings need not be released until approved was unsupported by specific statutory reference to KRS 61.878(1)(i). Her assertion that she might not be out of town provided no authorization for the withholding of the executive order and was legally unsupportable. Her response therefore constituted a violation of the Act.
Conversely, Mayor Cornett's refusal to disclose unapproved minutes of the October 13 meeting did not violate the Open Records Act. KRS 61.835 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.
Although an agency may waive the available exception and release unapproved minutes, it is not required to do so. The Attorney General has long recognized that "unapproved minutes of [public] meetings may properly be withheld as preliminary records." See, e.g., 96-ORD-21. Such minutes are in the nature of a preliminary draft and are therefore not subject to public inspection pursuant to KRS 61.878(1)(i) until approved. Although Mayor Cornett failed to articulate a statutory basis for denying this portion of Mr. Hatfield's request in her original response, that omission was corrected on appeal and the request properly denied.
We make no finding on the propriety of Mayor Cornett's denial of Mr. Hatfield's request for the executive order appointing Mr. Stagnolia to act as mayor in her absence. Setting aside the unrelated question of whether she was authorized to do so, 1 we are confronted by conflicting factual narratives. Mr. Hatfield notes that the minutes of the October 13 meeting reflect that when questioned about Mr. Stagnolia's appointment as acting mayor, Mayor Cornett responded that she "already ha[d] an Executive Order in [her] office now." On behalf of Mayor Cornett, Mr. Boggs asserts that because the Executive Order was "not signed, not dated, not entered, [and] not effective, " the order did not exist as an official document but was instead a draft document. These divergent factual accounts compel us to conclude that the record is insufficient to support the claimed violation. Simply stated, we are not equipped to resolve the factual dispute in either party's favor.
If, in fact, the Executive Order appointing Mr. Stagnolia to serve as acting mayor in Mayor Cornett's absence was not signed, dated, or entered at the time of Mr. Hatfield's request, the Mayor was authorized to withhold it as a preliminary draft within the meaning of KRS 61.878(1)(i). If the Executive Oder was "signed, dated, and entered" at the time of Mr. Hatfield's request, it was "effective" and forfeited its preliminary characterization. Nondisclosure of the order, under this scenario, was improper. Given the conflicting record on appeal, we make no determination as to the propriety of the Mayor's denial of Mr. Hatfield's request for a copy of the Executive Order.
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.
Carl R. HatfieldLoretta H. Cornett, MayorSteven Parker Boggs
Footnotes
Footnotes
1 Because this issue does not arise under the Open Records Act, we do not address the legality of the appointment.
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