Opinion
Opinion By: Andy Beshear,Attorney General;Matt James,Assistant Attorney General
Open Records Decision
The questions presented in this appeal are whether the Corbin Public Library Board violated the Open Records Act in failing to maintain meeting minutes, in not keeping "official" copies of records, and in timely responding to requests. We find that the Library Board did not violate the Open Records Act in not keeping "official" copies of documents, but violated the Open Records Act in failing to properly and consistently maintain meeting minutes, and in failing to explain the delay in producing records and indicate the earliest date on which records would be available.
Brenda Huff submitted an open records request to the Library Board on January 14, 2017, requesting "all official minutes of meetings of the Corbin Public Library from November 2014 through December 2016." Heather Croley, Acting Director of the Corbin Public Library, responded to the request on January 17, 2017, stating "the records you have requested are not held in the building. I will forward your request to the Board of Trustees, who have control of these records." On January 17, 2017. Huff sent a request to Brenda Jones, President of the Corbin Public Library Board of Trustees, again requesting "all official minutes of meetings of the Corbin Public Library from November 2014 through December 2016." Huff additionally stated that she wanted "to know who is the official custodian of the records, and where they are held." Jones responded on January 18, 2017, stating that "the Library Policies and Procedures Manual of the Corbin Public Library Open Records Policy states 'The Corbin Public Library Director (or designee) acts as Custodian for all of the Library's public records. ' Therefore, I gave your letter to Heather Croley, Interim Library Director. . . . Please check with Heather for the time required to fulfill your request." Huff responded on January 18, 2017 that she had directed her initial request to Croley, who indicated that the records were not held in the Corbin Public Library, and that she "would like to view or have copies of the official minutes. It is my comprehension that official minutes and vouchers voted on by the board are signed and dated . . . as a way to indicate that they are the official documents." On January 20, 2017, Croley responded to Huff, inquiring whether Huff wanted to view or receive copies of the requested records, and Ms. Huff responded that same day that she would like to view as well as obtain copies. On January 27, 2017, Croley sent an email to Huff informing her that "the minutes are now available for you to collect at your earliest convenience."
On January 31, 2017, Huff sent a letter addressed to "custodian of records" of the Corbin Public Library stating that she had "received copies of official minutes dating from November 2014 through December 2016. However, I have not been informed of the location in which these official records are kept. . . . I respectfully request to view all official minutes of meetings of the Corbin Public Library from November 2014 through December 2016." Jones responded to the letter by email to Croley on February 3, 2017, instructing her to advise Huff that "the Library Director is the Custodian of Library records. The Board of Trustees has provided copies of minutes that were missing or misplaced at the Corbin Public Library. Board Treasurer, Anne Hoskins will meet Brenda Huff at 11 am, Tuesday, February 7, 2017 at the Corbin Public Library to review the requested minutes . . . ." The Corbin Public Library forwarded that email to Huff. 1
Huff initiated this appeal, received March 31, 2017, alleging that the Library Board "subverted the intent of KRS 61.870 to 61.884, short of denial of inspection, in several ways." First, Ms. Huff alleged that "despite the board's contention that the director is the 'custodian, ' the director has never been in custody of official records of the agency, . . . but has received copies." Second, she alleged failure to create and maintain records, on the grounds that many documents "are contestable due to the Board's failure to create the document or take official action to approve the document . . ., or are impossible to substantiate as the official documents because multiple copies with material differences exist or handwritten corrections with no corresponding action in creating the minutes exist. . . . Furthermore, documents were missing . . . ." Third, she alleged that "the length of time and number of steps required to fill my open records request was hardly reasonable considering the nature of the request." Huff also alleged a variety of open meetings violations by the Library Board, which have been addressed in depth in 17-OMD-069.
The Library Board responded to the appeal on April 10, 2017, stating:
. It was the belief of the Board members that the Library Director was and is the custodian of the records for the library . . . . The "copies" referred to here are what members of the board supplied for Ms. Huff because Heather Croley Fore, the acting director at this time, could not find the minutes requested by Ms. Huff in her office. Ms. Fore did locate some of these minutes in the library at a later time. Though the Board of Trustees felt the minutes were being kept correctly, they admit the maintaining of the minutes needed to be improved. Since January of 2017 . . . great care is being taken to insure that records are being collected and maintained by the Library Director, and the Board is also keeping a signed copy of the minutes in their care as well.
. . . .
. The Board feels that Ms. Huff's concern regarding the length of time required to fulfill her records request is misplaced. The Board has made every effort to accommodate her request by providing the director with Board copies of any minutes the director could not find in the possession of the library.
Huff generally frames her appeal as a subversion of the intent of the Open Records Act. KRS 61.880(4) provides that "if a person feels the intent of KRS 61.870 to 61.884 is being subverted by an agency short of denial of inspection, including but not limited to the imposition of excessive fees or the misdirection of the applicant, the person may complain in writing to the Attorney General." In decisions of this office, subversion of intent of the Open Records Act is typically applied in instances in which the public agency generally complied with the Open Records Act, but nonetheless utilized other procedures or tactics which subverted the stated policy of public access in KRS 61.871. See generally 10-ORD-022 ("Each agency complied with his request . . . . The sole question presented here is whether the City and the Board subverted the intent of the Act . . . ."); 17-ORD-007 (listing circumstances in which agencies subverted the intent of the Open Records Act) . Although there was an initial misdirection of Huff as to who the proper custodian of the records was, the specific allegations made by Huff are more properly characterized as direct violations of the Open Records Act rather than subversion of its intent, and are analyzed as such.
Regarding Huff's allegations of failure to maintain records, KRS 61.876(1) provides that "each public agency shall adopt rules and regulations in conformity with the provisions of KRS 61.870 to 61.884 to provide full access to public records, to protect public records from damage and disorganization, " including "(b) the title and address of the official custodian of the public agency's records." The Library Board had adopted a policy to comply with the Open Records Act, and had identified the library director as the official custodian of records. However, it did not consistently apply that policy, as the person designated as the official custodian of records either was not aware of her duties, or was not able to maintain the meeting minutes and protect them from disorganization. An "Official Custodian . . . cannot direct the creation of records, but must insure their maintenance, care and keeping." 94-ORD-12. Should the official custodian "fail in these duties, this Office will declare the agency to be in violation of the Open Records Act. " Id. In failing to have the official custodian properly maintain meeting minutes, the Library Board violated the Open Records Act.
Huff also alleges a violation of the Open Records Act in failing to designate or verify official copies of minutes. KRS 61.870(2) defines "public record" as "all . . . documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency. " The Open Records Act does not distinguish between "official" and "unofficial" copies of public records, and it does not impose any requirement to make "official" copies of records. See 03-ORD-226 ("It is not, however, incumbent on the [public agency] to 'certif[y] . . . the appropriate records . . . .' Such a requirement does not exist in the Open Records Act. "). All records prepared, owned, used, in the possession of, or retained by a public agency are public records, regardless of whether they are designated as "official." Further, the existence of discrepancies between different versions of the minutes is not itself a violation of the Open Records Act, and is not reviewable in this limited forum. See 09-ORD-101 ("Because 'questions relating to the verifiability, authenticity, or validity of records disclosed under the Open Records Act are not generally capable of resolution under the Act,' we do not address Mr. Fletcher's objections to omissions and discrepancies in the records released to him."). To the extent the Library Board did not promptly approve official meeting minutes, that issue has already been addressed in 17-OMD-069: it pertains to violations of the Open Meetings Act under KRS 61.835, and not to violations of the Open Records Act. Accordingly, in failing to designate "official" copies of minutes, the Library Board did not violate the Open Records Act.
Regarding Huff's allegation that the time and effort required to fill her open records request was unreasonable, KRS 61.880(1) provides that "each public agency, upon any request for records . . . shall notify in writing the person making the request, within the three (3) day period, of its decision." KRS 61.872(5) provides that:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
KRS 61.880(1) requires agencies to respond within three business days to requests for records. If the records are not available, KRS 61.872(5) requires the agency to provide a place for inspection within three days, or a detailed explanation for the delay and earliest date on which the public record will be available for inspection. In this case, the Library Board responded to each request within three days and appeared to attempt to comply, but did not state why the records were not immediately available or the earliest date on which they would be available. In failing to explain why the records were not available and provide a date on which they would be available, the Library Board violated the Open Records Act.
In summary, the Library Board did not violate the Open Records Act in not designating certain copies of meeting minutes as "official." The Library Board violated the Open Records Act in failing to properly maintain meeting minutes, and in failing to provide an explanation for delay and specify the earliest date on which the records would be available.
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. Under to KRS 61.880(3), the Attorney General must be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.
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