Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the City of Berea did not violate provisions of the Open Records Act in the disposition of John R. Guthrie's February 1, 2010, request for a copy of the video/audio recording of the Adjustment Board's January 27, 2010, meeting. The City responded to Mr. Guthrie's request on February 15, 2010, 1 by providing him with "the portion of the meeting which was in fact recorded, " explaining that "for some reason only 5 minutes and 46 seconds was recorded before the recorder stopped." The City offered to provide Mr. Guthrie with a copy of the minutes of the meeting after they were approved. We find that 07-ORD-188, a copy of which is attached hereto and incorporated by reference, is dispositive of the issue on appeal.
Although Mr. Guthrie asserts that he has "substantial reason to believe that the clerk of public records is refusing to produce the whole recording [because] it may tend to cause 'embarrassment' to the City of Berea . . .," he does not make a prima facie showing that a recording of the meeting in its entirety actually exists. Conversely, the City submits the affidavit of City Administrator Randy Stone confirming that only a partial recording of the meeting exists owing to a malfunction in the recording system. In the absence of a prima facie showing by the requester that the record exists, we are obligated under the rule announced in
Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333 (Ky. 2005), and implemented in 07-ORD-188, to affirm the City of Berea's position.
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.
John R. GuthrieRandy StoneJames T. Gilbert
Footnotes
Footnotes
1 It is unclear why the City's response was not issued in a timely fashion. Failure to respond in writing, and within three business days of receipt, to an open records request constitutes a violation of KRS 61.880(1).