Opinion
Opinion By: Jack Conway,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Department of Agriculture violated the Open Records Act in the disposition of Michael J. Adams' April 20, 2015, request for records relating to the Kentucky Industrial Hemp Commission ("KIHC"). For the reasons that follow, we find that the Department improperly withheld one set of meeting minutes in violation of KRS 61.835, but did not otherwise substantively violate the Act.
In his April 20 request, Mr. Adams stated as follows:
KRS 260.861(4) indicates that the Kentucky Industrial Hemp Commission (KIHC) may use the Kentucky Department of Agriculture (KDA) for support services regarding meetings, records, and financial records. I am interested in the following KIHC Records:
1. A copy of the regulations the KIHC promulgated as required by KRS 260.851 and KRS 260.854(11).
2. A current list of KIHC members.
3. A schedule and agenda for future meetings.
4. Meeting minutes for past meetings.
5. Information on private contributions made to the Industrial Hemp Program Fund established by KRS 260.869.
6. Financial records for the tests conducted to ensure compliance with permissible THC-levels.
7. The annual reports required by KRS 260.853(9).
On April 23, 2015, Deputy General Counsel Nicole T. W. Liberto replied that Mr. Adams' request had been "granted" and the records would be "compiled and prepared no later than COB April 28, 2015." On that date, Ms. Liberto provided some records to Mr. Adams, with no indication that any documents were being withheld. Her e-mail stated in part:
Prior to the Farm Bill's enactment in February 2014 there was no ability for KDA to have any sort of program as a result of both state and federal law. The Kentucky General Assembly passed Senate Bill 50 (SB 50) in 2013, but it was not until the passage of the Farm Bill in 2014 by Congress and signed by the President that Kentucky was able to begin the cultivating, growing and marketing of hemp as an agricultural product, and even then, Section 7606 of the 2014 Farm Bill only allows the KDA to conduct research and not create a full-scale growers license program as described in SB 50. To be clear, SB 50 was necessary to allow KDA's pilot program to exist but it does not directly govern the research pilot program. The fact that the KDA is operating hemp pilot programs under the Farm Bill, rather than SB 50, is the reason no regulations have been promulgated by KDA to address the language of SB 50. The purpose of KRS 260.850 to 260.860 (the codification of much of SB 50) is to establish a state based industrial hemp program that is not currently legal under federal law. Thus, there are no regulations responsive to your request numbered 1.
In regards to the KIHC, KRS 260.857 was revised to attach the commission to the University of Kentucky Agricultural Experiment Station instead of the KDA. This creates the current situation where KDA has no legal standing to promulgate regulations on behalf of KIHC; and in fact, this is the responsibility of UK. Moreover, the KIHC is now under the supervision of UK, and is only associated with the KDA for administrative purposes. One of these administrative purposes is to collect and keep the minutes of KIHC meetings; see attached (request numbered 4). Also attached is a current list of KIHC members (request numbered 2). As for a schedule and agenda of future KIHC meetings (request numbered 3), the KDA cannot answer that because it does not have these records - if such records of future meetings exist.
On May 4, 2015, Mr. Adams indicated to Ms. Liberto that some records appeared to have been omitted:
The documents that appear to have been accidentally omitted are the KIHC meeting minutes for meetings held on dates after the meeting held on September 12, 2013. . . .
?
I received the annual report for 2014, but I did not receive the annual report for 2013[.]
Only at this point did Ms. Liberto reply:
In accordance with KRS 61.878 (j) [ sic ], 1 the KIHC meeting minutes from December 30, 2013 and May 20, 2014 are exempted from disclosure because they are preliminary drafts. The records will [be] subject to disclosure once approved by the KIHC.
With regard to the annual reports, all available records retained by the KDA were forwarded to you. For additional or more specific requests pertaining to the KIHC, I recommend that you contact UK officials.
Mr. Adams' undated appeal was received in this office on August 27, 2015. He acknowledges that his requests numbered 5 and 6 were fulfilled, but believes meeting minutes (request 4) and annual reports (request 7) were wrongfully denied. 2
On September 21, 2015, Ms. Liberto submitted a response to the appeal. In regard to request 7, she states:
The document forwarded to the Complainant regarding the 2014 Industrial Hemp Pilot Program was a synopsis and review prepared by the KDA for use in a presentation to members of the General Assembly. It was mistakenly identified as the 2014 Annual Report required by KRS 260.853(9) .
The KDA cannot either confirm or deny the existence of any annual reports prepared by the KIHC. It was suggested that the Complainant contact UK officials regarding KIHC reports as they are responsible for KIHC administrative matters.
The KDA is neither the custodian nor aware of any annual reports prepared by the KIHC. . . .
She identifies the University of Kentucky Agricultural Experiment Station as the official custodian for KIHC records.
A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. In general, it is not our duty to investigate in order to locate documents which the public agency states that it does not possess. By identifying the agency which serves as custodian of the KIHC records not in its possession, the Department has adequately explained why it does not possess such records.
As to request 4, Ms. Liberto reiterates the Department's argument that "in accordance with KRS 61.878 (j) [ sic ], KIHC minutes for meetings held December 30, 2013 and May 20, 2014 are exempt from disclosure because they are preliminary drafts" and they will be "subject to disclosure once approved by the KIHC." With regard to the meeting on May 20, 2014, which Ms. Liberto identifies as the last KIHC meeting that has taken place, we find that the minutes fall within the exceptions in KRS 61.878(1)(i) and (j) 3 until they are approved at the next meeting.
The minutes for the meeting on December 30, 2013, however, cannot be excluded as preliminary drafts. KRS 61.835 provides:
The minutes of action taken at every meeting of [a] public agency, setting forth an accurate record of votes and action 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.) While KRS 61.835 is a section of the Open Meetings Act, "both the Open Meetings Statute, KRS 61.805 to 61.850, and the Open Records Statute, KRS 61.870 to 61.884, mandate public access to the minutes of a public body." OAG 83-139. "[A] public agency . . . speaks through its minutes as to actions taken and the minutes of the public agency should be made available to the public as soon as they are final approved by the [agency] and such approval should be no later than the next [agency] meeting." OAG 80-421.
Thus, as we concluded in 08-ORD-129 (citing 94-ORD-112 and OAG 08-002, n.6):
Clearly, the failure to record minutes of a public agency meeting constitutes a violation of the Open Meetings Act and the failure to afford public access to those minutes no later than immediately following the next meeting of the agency constitutes a violation of the Open Records Act .
(Emphasis added.) The "preliminary documents" exceptions are no longer applicable to meeting minutes after the time fixed by KRS 61.835 for their public availability. Accordingly, we find that the Department violated the Open Records Act by failing to produce the minutes of the KIHC's meeting on December 30, 2013, after a subsequent KIHC meeting had occurred.
In addition, we find that a procedural violation was committed. The Department of Agriculture delayed its disposition of the request until April 28, 2015, without stating a justification under KRS 61.872(5). Furthermore, the Department failed to identify the records omitted, and its legal basis for doing so, until May 6, 2015, after being questioned by Mr. Adams. This constituted a violation of KRS 61.880(1), which provides that "[a]n 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. "
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.
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