Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Elsmere Fire Protection District (acting through its Board of Trustees) violated the Kentucky Open Records Act in denying Terry Whittaker's May 9, 2013, request to inspect "meeting minutes of the Elsmere Fire Protection District Board of Trustees wherein committees, subcommittees, ad-hoc committees or the like (hereinafter referred to as committees) are created since 2003 or preexisting committees created prior to 2003 that have met" during or since 2003, the meeting schedules for the above-referenced committees of the Board from 2003 through 2013, and the meeting minutes of the above-referenced committees of the Board from 2003 through 2013. In a timely written response, Steven C. Martin, legal counsel for the Board, advised Ms. Whittaker that "standing committees were formed by the Elsmere Fire Protection District Board when the Board was first established. There are no minutes to inspect that we are aware of." Mr. Martin further advised that "[t]here are no meeting schedules of any standing committees. There are no documents which are responsive to this request." Likewise, Mr. Martin stated that "[t]here are no meeting minutes of any standing committees. All standing committees have a maximum of 3 Board members and when they meet there are no requirements for either advertising a meeting or producing minutes. " The Board's position is legally unsupportable.
By letter dated May 20, 2013, Ms. Whittaker initiated this appeal, enclosing a copy of the minutes of the first meeting of the Board and noting that "[n]o committees were formed at that meeting nor at anytime during the first year of the Board's existence." Ms. Whittaker correctly asserted that committees of the Board fall within the definition of "public agency" codified at KRS 61.805(2)(g). Accordingly, "the provisions of the Open Meetings and Open Records Acts codified in KRS [C]hapter 61 are applicable to the Board of Trustees and its committees." Ms. Whittaker argued that committees of the Board, "regardless of their name, must comply with the records creation requirements of KRS 61.835," pursuant to which "minutes of action taken at every meeting of any such public agency, setting forth an accurate record of votes and actions taken 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." She also correctly observed that Records Series L4958 (Official Minutes of Subsidiary Boards, Commissions and Authorities) of the Local Government General Records Retention Schedule mandates permanent retention of minutes. Upon receiving notification of Ms. Whittaker's appeal from this office, the Board did not choose to elaborate upon its position, advising instead that its May 10 response was "still the complete response." Additionally, the Board advised that "all of the meeting minutes of the [Board] were produced in total for review. Those documents included the minutes from 1986 through 2013. The minutes are not separated to show discussion of individual committee recommendations or reports." The Board maintained that conducting such a review would be "unduly burdensome." 1
The issues presented in this appeal implicate both the Open Records Act and the Open Meetings Act. See 92-ORD-1301. In denying Ms. Whittaker's request for minutes and schedules of Board committee meetings held from 2003 through 2013, the Board asserted that all "standing committees have a maximum of three Board members and when they meet there are no requirements for either advertising a meeting or producing minutes. " However, the underlying premise of the Board's implicit position, that any such committees are not public agencies for purposes of the Open Records and/or Open Meetings Acts, is legally incorrect as the Board 2 is "created by or pursuant to state or local statute," and is therefore a "public agency" for purposes of both the Open Records Act and the Open Meetings Act pursuant to KRS 61.870(1)(f) and 61.805(2)(e) , respectively. 3 Thus, any committees of the Board are public agencies per KRS 61.870(1)(j) and 61.805(2)(g), both of which provide, in relevant part, that "[a]ny board, commission, committee, subcommittee, ad hoc committee, advisory committee, council, or agency . . . established, created, and controlled by a 'public agency' as defined" in KRS 61.870(1) or 61.805(2) is a public agency itself. See, e.g., Lexington Herald-Leader Company v. University of Kentucky Presidential Search Committee, Ky., 732 S.W.2d 884, 886 (1987) (holding that the presidential search committee created by action of the UK Board of Trustees, a public agency created by statute, is a public agency) ; OAG 91-54 (committee created by the Mercer County Fiscal Court to consider proposals relating to planning and zoning is a public agency) ; 93-OMD-49 (three member grievance committee appointed by the Mayor of the City of Scottsville is a public agency) ; 95-OMD-124 (emergency medical services committee appointed by the Boyle County Judge/Executive is a public agency) ; and 98-OMD-96 (sign committee created by the City of Madisonville zoning administrator is a public agency) ; 99-OMD-77 (as an advisory committee appointed by Franklin County Fiscal Court, budget committee is a public agency pursuant to KRS 61.805(2)(g) and subject to provisions of the Open Meetings Act) ; 05-OMD-117 (established, created, and controlled by the Peewee Valley City Council, the Master Plan Review Committee is a public agency per KRS 61.805(2)(g) and subject to Open Meetings Act) .
The fact that some or all of the committees (or subcommittees, etc.) are comprised of less than a quorum of the members of the Board does not alter this conclusion; nor does the fact that some or all of the committees may not be empowered to act but instead operate in a strictly advisory capacity. See 05-OMD-117; 06-OMD-211; 10-OMD-114; 11-OMD-060. 61.810(1) provides that "[a]ll meetings of a quorum of the members of any public agency at which any public business is discussed or at which any action is taken by the agency, shall be public meetings, open to the public at all times[.]" Violation of the Open Meetings Act can thus result from a private meeting of a quorum of the members of a public agency at which either public business is discussed 4 or action is taken. KRS 61.820 provides that all meetings of all public agencies, "and any committees or subcommittees thereof, shall be held at specified times and places which are convenient to the public." It further mandates that all public agencies "provide for a schedule of regular meetings by ordinance, order, resolution, bylaws, or by whatever other means may be required for the conduct of business of that public agency. " 5 The term "meeting" is broadly defined at KRS 61.805(1) as "all gatherings of every kind . . . regardless of where the meeting is held, and whether regular or special and informational or casual gatherings held in anticipation of or in conjunction with a regular or special meeting." Thus, all gatherings of a quorum of a committee of the Board at which it discussed public business or took action were meetings of a public agency subject to provisions of the Open Meetings and Open Records Acts. See 06-OMD-068 (advisory role of committee does not warrant a different outcome). 6
Of particular significance, KRS 61.835 expressly provides that "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." 7 Any committee of the Board "was obligated to record minutes of all meetings of a quorum of its members at which public business was discussed." 05-OMD-117, p. 6. The minutes of a meeting of a public agency "are public records and are also subject to the disclosure requirements of the Open Records Act. " 92-ORD-1301, p. 3 (copy enclosed). If no such minutes exist, "the [Board,] through its committee[s], must be deemed to have violated both KRS 61.835 and the Open Records Act. OAG 86-20." OAG 92-032, p. 3.
Having ultimately denied the existence of any responsive minutes, the Board now finds itself in the position of having to "prove a negative" in order to conclusively refute a claim that such records exist. Addressing this dilemma, in Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 340-341 (Ky. 2005), the Kentucky Supreme Court observed "that before a complaining party is entitled to such a hearing [to refute the agency's claim that records do not exist], he or she must make a prima facie showing that such records do exist." 8 In a series of decisions issued since Bowling , this office has been obliged to affirm public agency denials of requests based upon the nonexistence of records in the absence of a prima facie showing that the records being sought did, in fact, exist in the possession of the agency. See, e.g., 06-ORD-042; 07-ORD-188; 07-ORD-190; 08-ORD-189. However, in 2011 this office had occasion to clarify its position regarding the duties of a public agency under circumstances where, as in this appeal, the existence of the records in dispute is postulated on existing legal authority or facts in evidence rather than speculation.
In holding that the public agency's response was both procedurally and substantively deficient, inasmuch as it offered no explanation for the nonexistence of the record(s) in dispute notwithstanding legal authority mandating creation of such a record(s), this office reasoned as follows:
. . . Kentucky's courts have struggled with the dilemma posed when agencies deny a record's existence rather than claiming a statutory exemption as the basis for denial. The courts recognized, on the one hand, that "allowing public agencies to avoid judicial review by denying a record's existence . . . remove[s] accountability from the open records process," and, on the other, that public agencies may be unreasonably burdened by "the unfettered possibility of fishing expeditions for hoped-for but nonexistent records . . . ." Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 341 (Ky. 2005). The courts resolved the dilemma by determining that "before a complaining party is entitled to . . . . a hearing [to disprove the agency's denial of the existence of records,] he or she must make a prima facie showing that such records do exist."
At the administrative level, a record's existence can be presumed where statutory authority for its existence has been cited or can be located. KRS 61.880(2)(a) restricts the Attorney General's review of an open records dispute to a written record consisting of the request and denial. 40 KAR 1:030 Section 2 provides for a supplemental response to be considered in resolving the dispute. KRS 61.880(2)(c) authorizes the Attorney General to "request additional documentation from the agency for substantiation." None of these provisions permit a hearing on the existence or nonexistence of a public record. To ensure that the Open Records Act is not "construed in such a way that [it] become[s] meaningless or ineffective," Bowling at 341, we believe the existence of a statute, regulation, or case law directing the creation of the requested record creates a presumption of the record's existence , but this presumption is rebuttable. The agency can overcome the presumption by explaining why the "hoped-for record" does not exist.
11-ORD-074, pp. 3-4(emphasis added); see 11-ORD-111. See also 01-ORD-138 (public university violated KRS 61.880(1) in failing to identify records to which it denied access based on their nonexistence and, per KRS 61.8715, provide some explanation for their nonexistence) ; 07-ORD-011 (a public agency "must offer some explanation for the nonexistence of the records and, at a minimum, document what efforts were made to locate the requested records"); 12-ORD-192.
The Kentucky Court of Appeals recently approved this approach, declaring that "when it is determined that an agency's records do not exist, the person requesting the records is entitled to a written explanation for their nonexistence. " Eplion v. Burchett, 354 S.W.2d 598, 604 (Ky. App. 2011). Under the rule set forth in Eplion , the only explanation offered for the nonexistence of the minutes being sought was not only inadequate but also legally incorrect. See 12-ORD-195 (Kentucky law governing public procurement and prevailing wage contemplates the creation and proper management of documents responsive to request and the only explanation offered for the agency's inability to produce such records was inadequate). Inasmuch as the only explanation given by the Board for the nonexistence of minutes of all committee meetings from 2003 to 2013 cannot be reconciled with either the relevant statutory language or existing law applying the provisions of the Open Records and Open Meetings Acts, the Board failed to satisfy its burden of proof under KRS 61.880(2) and 61.880(2)(c). Although it cannot produce nonexistent records for inspection or copying, the Board violated the Open Records Act in this regard.
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:
Terry WhittakerSteven C. Martin
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