Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Northern Kentucky University (Communication Department Faculty) violated the Kentucky Open Records Act in partially denying the undated request made by Karli Wood, Editor-in-chief of The Northerner , for "access to and a copy of . . . [a]ll minutes, recordings and official notes taken during the April 11, 2012 Communication Department Faculty Meeting scheduled from noon to 12:50 p.m." NKU Vice President for Legal Affairs and General Counsel Sara L. Sidebottom promptly provided Ms. Wood with a copy of the audio recording of that meeting, but advised that "[p]ortions of the recording have been redacted due to personnel matters that involved the recommendations of potential candidates for interim chair pursuant to KRS [61.878(1)(j)]." 1 Asserting that NKU's reliance on KRS 61.878(1)(j) is misplaced, Ms. Wood initiated this appeal. Based upon the following, this office agrees. The recording at issue is a "public record" within the meaning of KRS 61.870(2), and "may not be treated as a preliminary document, but should be made available upon request." OAG 92-111, p. 3. Further, "[n]o claim is made that these comments were made in a properly conducted closed session, and no statutory basis exists for denying access to all or any part of the minutes [or the recording provided in lieu of minutes] of an open, public meeting. " 01-ORD-87, p. 8; 05-ORD-209.
In response to Ms. Wood's appeal, NKU supplemented its response, noting that "[s]pecifically the recording was redacted between the two minute mark and the 30 minute mark." During that period of time, NKU continued, the Dean of the College of Informatics joined the faculty meeting and the present Communication Department Chair, Rachel Lyon, exited the meeting. "The purpose of the Dean's presence was to meet with departmental faculty and discuss Dr. Lyons' future role within the department, the selection of an interim chair for the 2012-2013 academic year, and the search procedures for a permanent chairperson for the department." NKU reiterated that said portion of the recording was redacted because it consisted of preliminary discussions in which opinions and recommendations were made by the Dean and the faculty. "At the time of the redaction," NKU observed, "no final decisions had been made regarding Dr. Lyons' future role, and interim chair was not yet appointed, and no final decision had been made on how the search for a permanent chairperson will be conducted." 2 Members of the faculty "were asked by their Dean to give thought to how several processes should occur and how decisions should be made for the department. The Dean and the faculty engaged in a robust conversation where faculty were free to voice their opinions about how matters had been conducted in the past and the implications for future decisions."
Relying heavily upon 05-ORD-027 and the line of decisions upon which that decision was premised in support of its argument regarding application of KRS 61.878(1)(j) in this context, NKU asserted that the "audio recording is essentially a verbal memorandum which sets for the unedited opinions, observations, and recommendations of the speakers and is entitled to the same treatment as a written document." NKU incorrectly observed that Ms. Wood "requested the record in its raw form, that of an audio recording, rather than the minutes created from that meeting." Given the manner in which KRS 61.878(1)(j) has been applied generally, as well as "the nature of the redacted portions of the audio recording, " NKU maintained that the discussion(s) redacted falls within the parameters of that exception. While that assertion is debatable as to at least some portions of the discussion, the content of which this office cannot reveal, 3 but which can generally be described as the Dean relaying information or answering questions, rather than giving opinions/recommendations, further discussion is unnecessary given that a recording made by the agency of its public meeting 4 must be disclosed in its entirety under existing legal authority.
In OAG 92-111, this office departed from an earlier line of decisions in holding that a recording (audiotape in that instance) "falls squarely within the parameters of [KRS 61.870(2)], 5 and must be treated as a public record if the tape is prepared, owned, used, or in the possession of the public agency, and is made at the direction of the agency." 6 Acknowledging our previous holding that a public agency was not required to disclose recordings of its meetings because the recordings were of a preliminary character and "incident to the preparation of its official minutes, " the position apparently taken by NKU in asserting that Ms. Wood asked for the recording in "raw form" rather than requesting the minutes, our analysis of authorities from other jurisdictions, coupled with the strong Open Records Act policy favoring disclosure, led us to conclude that such a recording "may not properly be treated as a preliminary document, but should be made available to the public upon request." See also 93-ORD-34; 94-ORD-44; 95-ORD-119; 97-ORD-14; 00-ORD-230; 01-ORD-167; 03-ORD-173. In so doing, the Attorney General departed from the view that "release of the approved minutes of the meeting satisfies an agency's obligation under the Open Records Act. " Here, NKU did not withhold the recording entirely, but did redact approximately half of the content on the basis of KRS 61.878(1)(j). Based upon existing legal authority regarding the accessibility of minutes and recordings of public meetings, the Attorney General finds the agency's position unpersuasive.
KRS 61.835 is entitled " Minutes to be recorded -- Open to public. " Pursuant to KRS 61.835:
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 OAG 81-387, the Attorney General was asked to clarify whether a public agency, namely, the Board of Education, was required to keep minutes of closed sessions. Relying upon
County Board of Education of Warren County v. Durham, 198 Ky. 733, 249 S.W. 1028 (1923), this office began by noting that a public agency "only speaks authoritatively through its minutes. " OAG 81-387, p. 2. Citing KRS 61.835, the Attorney General therefore concluded that minutes of open meetings must, at a minimum, "record formal motions made in a meeting and the vote of the members on the motion." Id. Any further content is included as "a matter of parliamentary procedure" and at "the discretion of the public body. " Id.
In order to determine the meaning of the term "minutes" for purposes of the Open Meetings Act, the Attorney General consulted "the foremost authority on parliamentary procedure, Roberts' Rules of Order [citation omitted]," observing as follows:
Roberts says that minutes should contain mainly a record of what was done at the meeting, not what was said by the members. Roberts makes no distinction as to open meetings and closed or executive sessions but does discuss the situation when a deliberative assembly forms itself into "a committee of the whole" and says that "the proceedings of a committee of the whole should not be entered into the minutes, but the fact that the assembly went into committee of the whole and the committee report should be recorded. " Id., p. 391. We believe that when a public body goes into closed session by statute it is, in effect, a committee of the whole and, therefore, the proceedings of the closed session should not be entered in the minutes except to show that the closed session was held and if a formal action was taken in the closed session.
OAG 81-387, p. 2 (emphasis added). This office noted that minutes of a meeting, whether open or closed, are not required to reflect any more than the formal action taken and the votes cast by the members. Id. However, public agencies may exercise discretion as to whether "an additional record should be made of a closed session" beyond the statutory minimum. Id.
Agencies are "not required to summarize the discussion or record what any of the members said." However, the fact that a public agency opts to document such discussions in minutes of open, public meetings does not render the content of those minutes exempt. If, at the meeting in question, "nothing was decided or acted upon or voted upon the minutes could , under KRS 61.835, consist of nothing more than a record of the actions which opened and adjourned the meeting. This material would be subject to inspection. " 05-OMD-188, p. 4, citing 95-OMD-64, p. 4 Both the Open Meetings Act and the Open Records Act "mandate public access to the minutes of a public body. " OAG 83-139, p. 1 (". . . no final action is to be taken in a closed session and action taken in an open session after a closed session should be recorded in the minutes and made available to the public").
When the agency holds a closed session, the minutes of the meeting must show that the agency observed the formalities codified at KRS 61.815(1) before going into closed session, and cite the applicable exception of those identified at KRS 61.810(1) as authority, "but need not show information which would defeat the purpose of holding a closed session on authorized subject matter. " OAG 81-387, p. 2; OAG 83-139. In reaffirming this principle, the Attorney General held that "minutes of a properly conducted executive or closed session of a meeting of a public agency need not be made available for public inspection or even recorded to the extent that doing so would defeat the purpose of conducting the closed session" with the necessary implication being that minutes must be recorded and available when the formalities for conducting a closed session are not observed, as in this case. OAG 87-10, p. 3 (emphasis added); 94-OMD-110. While this office has "never expressly held that minutes of an improperly conducted closed session are subject to inspection, we believe this proposition is an obvious corollary of the first." 92-ORD-1346, p. 2. Nowhere in KRS 61.835, the provision governing minutes, or the line of decisions construing this provision, is there any basis for the proposition that portions of minutes recording the subject matter discussed at open, public meetings can be redacted after the fact because the minutes contain more information than is required.
The reasoning of 01-ORD-87 applies with equal force on the facts presented. Having concluded that the protection afforded by KRS 61.878(1)(c)(1) (the exception belatedly invoked there) did not extend to records generated by or for a public agency, including minutes of the agency's public meetings, the Attorney General held:
In the case of minutes of regular meetings, such records are not "confidentially disclosed to any agency or required by an agency to be disclosed to it" nor are they "generally recognized as confidential or proprietary." The fact that comments were ill-advisedly made in the course of an open, public meeting that placed the [agency] at a risk of competitive harm is not enough to bring minutes reflecting those comments within the scope of KRS 61.878(1)(c)(1). Bearing in mind that "the exceptions provided for by KRS 61.878 . . . shall be strictly construed," we find that the [Board] improperly relied on this exemption. KRS 61.871.
Moreover, with respect to minutes of a public agency, KRS 61.835 places an affirmative duty on the agency to make those minutes "open to public inspection at reasonable times no later than immediately following the next meeting of the body." No claim is made that these comments were made in a properly conducted closed session, and no statutory basis exists for denying access to all or any part of the minutes of an open, public meeting . We believe that the Board erred in refusing to disclose the minutes in their entirety , and is obligated to immediately furnish [the requester] with unredacted copies of those minutes.
01-ORD-87, pp. 7-8 (emphasis added); 05-ORD-209.
A closed session is the statutory mechanism by which the General Assembly afforded public agencies the ability to shield protected discussions from public scrutiny. The formalities codified at KRS 61.815 are mandatory regardless of whether anyone else was present at the meeting in question. 05-ORD-209, p. 10 (rejecting the argument that Open Records Act does not require a public agency "to go into closed session to preserve its rights under KRS 61.878," and finding that agency was not entitled to withhold "legal opinions/recommendations" per KRS 61.878(1)(j) and (l) as the actions of the agency might have been "ill-advised," but allegedly protected comments were memorialized in the minutes of the meeting and were thus "a matter of public record to which none of the statutory exceptions apply").
"Simply put, minutes of a public meeting are properly characterized as public records per KRS 61.835 which are open to public inspection in their entirety. Exemptions to the Open Records Act are neither applicable nor relevant in this context." Id. When viewed in conjunction with OAG 92-111 and its progeny, 01-ORD-87 establishes that a recording of a public agency meeting, subject to qualifications outlined above, is a "public record" within the meaning of KRS 61.870(2), rather than a preliminary document, and that no statutory basis exists for denying access to all or any part of the minutes, or any record(ing) made at the direction of the public agency, of its open, public meeting. The instant appeal presents no basis to depart from the underlying rationale of these decisions. Because NKU indisputably discussed the subject matter outside the confines of a closed session, during an open, public meeting which it recorded, this office finds that NKU improperly redacted the recording it provided in response to Ms. Wood's request for "[a]ll minutes, recordings and official notes taken" during the April 11 meeting in light of the foregoing authorities.
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:
Karli WoodSara L. Sidebottom
Footnotes
Footnotes
1 Insofar as NKU failed to indicate whether any responsive minutes or notes existed, the agency's response was deficient. In addressing the obligations of a public agency when denying access to public records for this reason, the Attorney General has observed:
[A]n agency's inability to produce records due to their apparent nonexistence is tantamount to a denial and . . . it is incumbent on the agency to so state in clear and direct terms . 01-ORD-38, p. 9 [other citations omitted]. While it is obvious that an agency cannot furnish that which it does not have or which does not exist, a written response that does not clearly so state is deficient.
02-ORD-144, p. 3 (emphasis added); 04-ORD-205. Accordingly, this office has consistently recognized that a response by a public agency violates KRS 61.880(1), " if it fails to advise the requesting party whether the requested record exists ," with the necessary implication being that a public agency discharges its duty under the Open Records Act by affirmatively so indicating . 98-ORD-154, p. 2, citing 97-ORD-161, p. 3 (emphasis added); 04-ORD-046, p. 4; 03-ORD-205, p. 3. On multiple occasions, the Attorney General has expressly so held. 04-ORD-205, p. 4; 04-ORD-177, p. 3, citing 04-ORD-036, p. 5; 03-ORD-205, p. 3; 09-ORD-019; 11-ORD-081. In short, when a record for which inspection is being sought does not exist, "the agency should specifically so indicate." OAG 90-26, p. 4.
2 To the extent any such opinions and recommendations have now been adopted, in whole or in part, as the basis for any final action by NKU, those portions of the discussion have forfeited their preliminary status and must be released upon request even assuming, for the sake of argument, that KRS 61.878(1)(j) was properly invoked when the initial request was received.
3 NKU provided this office with an unedited copy of the recording upon request per KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, pursuant to which the Attorney General shall not disclose the content of records provided for in camera review.
4 In OAG 94-25, at page 4, this office concluded that faculty of a department within a college, like a college faculty, "is a formally established body that has been given authority to make decisions and recommendations regarding matters that are entrusted to it," and therefore is a "committee" within the meaning of KRS 61.805(2)(g) subject to provisions of the Open Meetings Act. The Open Records Act contains a counterpart provision at KRS 61.870(1)(j). NKU has not disputed this characterization for purposes of either Act; consequently, further discussion is unwarranted.
5 KRS 61.870(2) defines the term "public record" as:
"[A]ll books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency. "Public record" shall not include any records owned or maintained by or for a body referred to in subsection (1)(h) of this section that are not related to functions, activities, programs, or operations funded by state or local authority.
6 In so holding, this office clarified:
We do not mean to suggest that an agency is required to make and keep [on] file a recording of its public meetings under the Open Records Act. Nor do we mean to suggest that a secretary or clerk who personally purchases a tape and records the meeting on his or her own initiative to assist in the preparation of the minutes, must release the tape for public inspection. Under these circumstances, the tape could not be treated as a public record, but would instead be considered the clerk's personal property. See e.g. , OAG 83-194 (holding that a copy of a deposition prepared by a stenographer is [not] a public record) . Our holding is limited to those instances when the agency directs that a tape is made of its public meeting, for whatever purpose, and that tape is purchased with agency funds. OAG 79-333, OAG 87-44, OAG 88-32, OAG 89-93, and OAG 91-49, modified accordingly.
OAG 92-111, p. 3.