11-ORD-215

11-ORD-215

December 20, 2011

In re:        Ezalee Pigman/Knott County Tourism Commission

Summary:        Knott County Tourism Commission violated KRS 61.880(1) and KRS 61.872(5) by failing to respond in writing to request for meeting minutes and financial records.

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 Knott County Tourism Commission violated the Open Records Act in failing to respond in writing to Ezalee Pigman’s November 8, 2011, request for copies of the minutes of the meetings “from February 2011 until the last meeting” and the “financial records for the Fall 2011 Trail Ride.”

        In his letter of appeal, Mr. Pigman stated that he spoke with Bernice Amburgey, Commission Chairperson, by telephone on November 15. He indicated that Ms. Amburgey advised him that “she would mail [him] the meeting minutes as soon as she found February’s,” but denied his request for financial records “stating that those don’t become public record until after the meeting.”  As a result, Mr. Pigman initiated this appeal a copy of which was forwarded to the Commission along with this agency’s notification of receipt of his appeal advising the Commission that 40 KAR 1:030 Section 2 authorized it to respond to his allegations.

        On November 21, 2011, we received a copy of a record apparently disclosed to Mr. Pigman consisting of a single page captioned “KCTC Agenda February 7, 2011 Meeting.”  A handwritten note, signed and presumably authored by Ms. Amburgey, appeared on the record. It read:

Mr. Pigman

        I could not find Feb minutes but here is the agenda and the few notes I took.

        We did not have any meetings in June, July or Aug 2011.

The record also contained the “few” referenced handwritten notes.

        On November 23, Debbie Spencer¹ faxed a written response on behalf of Ms. Amburgey in which she acknowledged Ms. Amburgey’s receipt of Mr. Pigman’s request on November 12 and the ensuing telephone conversation. Ms. Spencer indicated that Ms. Amburgey:

told [Mr. Pigman] that she was compiling all of the minutes and would get them to him as quickly as possible. She also told him . . . [that a]ll of the receipts from the October 2011 Fall Trail Ride had not been compiled but the Commission was working on that now     . . . to present at the Knott County Fiscal Court Meeting on November 21st. She promised she would provide Mr. Pigman with a copy when the Commission presented the information to the Court on the 21st.

In closing, Ms. Spencer stated that on November 18 Ms. Amburgey mailed Mr. Pigman “all of the minutes taken from meetings since February 2011,” and on November 21 the Commission provided him with the requested financial records. It was the Commission’s position that its response was proper and that the requested records were released in a timely fashion.

        The record before us does not support the Commission’s position. To begin, the Commission violated KRS 61.880(1) by failing to respond to Mr. Pigman’s request in writing. Assuming, for the sake of argument, that his November 8 request did not reach the Commission until November 12, the Commission was nevertheless obligated to notify him, in writing and within three business days, whether it would comply with his request pursuant to KRS 61.880(1). 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.

Ms. Amburgey’s November 15 telephone call to Mr. Pigman did not satisfy the agency’s statutory obligation. To the extent Ms. Amburgey’s statement that she would require additional time to locate the minutes is deemed notification of a delay beyond the three business day statutory deadline, it was deficient because it was not in writing, and it did not include a detailed explanation of the cause for delay or indicate the earliest date on which the records would be available as expressly required by KRS 61.872(5).² 

        To the extent Ms. Amburgey’s statement that financial records relating to the Fall 2011 Trail Ride did not have to be disclosed until they were presented to the Knott County Fiscal Court is deemed a denial, albeit a temporary denial, of Mr. Pigman’s request, it was deficient because it was not in writing, did not cite the specific exception authorizing the withholding of the record, and did not provide an explanation of how the exception applies to the record withheld as expressly required by KRS 61.880(1).  Given the fact that financial records of a public agency do not enjoy protection from public inspection, and that “[a]mounts paid from public coffers are uniquely of public concern,” OAG 90-30, p. 3, we know of no basis for denying access, temporarily or permanently, to such records. Such records constitute nonexempt public records even if they have not been fully compiled or reviewed by the Fiscal Court.

        So, too, do the minutes of a public agency. The Commission was unable to produce the minutes of its February 2011 meeting. Production of an agenda containing handwritten notes does not satisfy the requirements of the Open Records Act, much less the requirements of the Open Meetings Act. KRS 61.835.³  Public agency meeting minutes are a vital record which must be permanently retained under the requirements set forth in the Local Government Records Retention Schedule, Series L4838 (enclosed). The Knott County Tourism Commission should therefore implement measures to insure compliance with the legal requirements for proper records management found in Chapter 171 of the Kentucky Revised Statutes as well as the legal requirements for insuring public access to nonexempt agency records found in Chapter 61 of the Kentucky Revised Statutes.

        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.

                                                Jack Conway

                                                Attorney General

                                                Amye L. Bensenhaver

                                                Assistant Attorney General

#412

Distributed to:

Ezalee Pigman

Bernice Amburgey

Timothy Bates