Did a Kentucky county have to provide committee minutes and bid records for an emergency radio contract?

Plain-English summary

A bidder’s consultant asked Madison County for telecommunications committee minutes, bid materials and contract documents concerning an emergency radio system. The county gave only an oral response suggesting that some minutes might exist. In 1992 the Attorney General said that response violated the Open Records Act’s written-response requirements. The committee, created by the fiscal court, was a public agency that had to record minutes and make responsive minutes available. The AG also said contracts and bidding records in the county’s possession had to be released after vendor selection, while committee recommendations to the state emergency-preparedness office could remain withheld until incorporated into final agency action.

If no committee minutes existed, the AG said the county had violated the minutes requirement as well as the Open Records Act. The opinion did not decide which minutes actually existed.

Currency note

This opinion was issued in 1992. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

Contractors and other records requesters

The AG said responsive committee minutes should be available, and contracts, pricing revisions and other bidding documents held by the fiscal court or committee had to be released after bids were opened and a vendor selected. Its conclusion was limited to records in the agency’s possession and recognized that unadopted recommendations could be preliminary.

Fiscal courts and their committees

A committee created by the fiscal court was itself a public agency under the AG’s reading of the Open Meetings Act. KRS 61.835 required prompt recording and public inspection of minutes showing actions and votes. The county’s oral reply also failed to identify any legal basis for withholding the other requested records and failed to issue the written decision required by KRS 61.880(1).

Common questions

Did the telecommunications committee have to keep minutes?

The AG said yes. As a committee created by the fiscal court, it was a public agency subject to the minutes rule.

What if the requested minutes were never recorded?

The opinion said that if no responsive minutes existed, the committee had violated KRS 61.835 and the Open Records Act.

Were the emergency-radio bid and contract documents public?

The AG said responsive documents held by the county or committee had to be released after the bids had been opened and a vendor chosen, subject to its separate treatment of preliminary recommendations.

Could the county keep its recommendations to the state office confidential?

The AG said those recommendations could be withheld while preliminary, unless and until they were incorporated into final agency action.

Background and statutory framework

The appeal followed an oral, incomplete response to a written request about the Madison County radio-system procurement. The opinion applied KRS 61.880(1) to the response, KRS 61.835 to committee minutes, and the public-agency definition in KRS 61.805(2). It distinguished open contracts and bidding records from committee recommendations still preliminary to final action.

Citations and references

• KRS 61.880(1): written response and denial explanation requirements.
• KRS 61.835: committee minutes requirement.
• KRS 61.805(2): public-agency definition applied to fiscal-court committees.
• Lexington Herald-Leader Co. v. University of Kentucky Presidential Search Committee, Ky., 732 S.W.2d 884 (1987): cited for coverage of committees created by public agencies.

Source

• Landing page: https://kdla.access.preservica.com/uncategorized/IO_58b381be-908f-4428-b233-a90fca98410b/
• Original PDF: https://kdla.access.preservica.com/download/file/IO_58b381be-908f-4428-b233-a90fca98410b

Original opinion text

OAG 92-32
February 25, 1992

____
Open Records Appeal
File Identification No. 96
Kevin S. Bunger___
William Robbins
County Judge/Executive
Madison County Courthouse
Richmond, KY 40475
Dear Judge Robbins:
Mr. Kevin S. Bunger, a communications consultant for Lexington Call Mobile, has appealed to the Attorney General, pursuant to KRS 61.880, your response to his request to inspect certain documents pertaining to a contract for the installation of a telecommunications system. Those documents are identified as:
[T]he findings and minutes of all the Telecommunications Committee meetings including the meetings in reference to the review of Ericsson GE Mobile Communications protest, the specific reasons for recommending Motorola, any contracts, revisions in bid pricing, minutes of meetings with the proposed contractor (Motorola), and recommendations to the state CSEPP [Chemical Stockpile Emergency Preparedness Program] office including pricing, in reference to Madison County’s purchase of a new county wide communications system. Mr. Bunger explains that Madison County plans to establish an emergency operations center to coordinate emergency response in the event of a man-made or natural disaster, with specific focus on the dangers associated with the destruction of chemical weapons at the Lexington-Blue Grass Army Depot. On behalf of Ericsson GE Mobile Communications, Mr. Bunger submitted a bid to install the center’s radio system. The only other bid was submitted by Motorola, which was subsequently awarded the contract,

William Robbins
Page 2 OAG 92-32
despite the fact that Ericsson GE’s proposal was, in Mr. Bunger’s view, far more attractive. Mr. Bunger indicates that on January 6, 1992, he hand-delivered a written request to inspect the cited documents to you. On January 10, he called your office in an attempt to ascertain the status of his request, and was advised that it had been forwarded to Mr. Merwyn Jackson, Madison County’s CSEPP planner and chairman of the telecommunications, or radio, committee, which reviewed the bids. Returning Mr. Bunger’s telephone call on the tenth, Mr. Jackson stated that he had not had an opportunity to read his letter. Mr. Bunger then read the letter to him over the telephone. In response to Mr. Bunger’s letter of request, Mr. Jackson stated that no pricing was available from Motorola, but that there “might be minutes from 1 or 2 of the telecommunications committee meetings” to which he would afford Mr. Bunger access. No written response was issued. Mr. Bunger requests that this Office review Mr. Jackson’s response to determine if these actions were consistent with the Open Records Act. For the reasons set forth below, we conclude that his actions, on your behalf, were procedurally and substantively improper under the Act. OPINION OF THE ATTORNEY GENERAL Before proceeding to the ultimate issue in this open records appeal, we direct your attention to KRS 61.880(1), which contains specific guidelines for an agency’s response to a request under the Act. The statute provides: Each public agency, upon any request for records made under KRS 61.860 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 records 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. In addition, KRS 61.880(2) requires that a copy of the written response denying inspection be forwarded immediately to the Office of the Attorney General. Mr. Jackson’s response to Mr. Bunger’s request was legally insufficient insofar as he failed to issue a written response, notifying Mr. Bunger of the committee’s decision. Although he verbally indicated that there “might be minutes from 1 or 2 of the

William Robbins
Page 3 OAG 92-32
telecommunications committee meetings,” he did not cite an exception authorizing nondisclosure of the other documents requested, including the committee’s contracts, revisions in bid pricing, and recommendations to the state CSEPP office, or briefly explain how the exception applies. Having failed to issue a written response, he obviously did not send a copy to the Attorney General. It is essential that the Madison County Fiscal Court review the cited provisions to insure that future responses conform to the Open Records Act. Turning to the substantive issues raised in this appeal, we find that the Madison County Fiscal Court, through its subcommittee, violated both the Open Meetings and Open Records Act by failing to record its minutes and make them available to the public. KRS 61.835 provides: 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. In Lexington Herald-Leader Co. v. University of Kentucky Presidential Search Committee, Ky., 732 S.W.2d 884 (1987), the Kentucky Supreme Court held that a public agency is any agency which is created by statute, executive order, local ordinance or resolution or other legislative act, or any committee, ad hoc committee, subagency or advisory body of said public agency. Since the telecommunications committee was created by the Madison Fiscal Court, it is a public agency and is therefore subject to the Open Meetings Act. See also, OAG 92-4; OAG 91-54 (“A fiscal court is clearly a public agency, as defined by KRS 61.805(2), OAG 75-280, and the committee or advisory body created by it or by order of the County Judge/Executive, is a public agency subject to the provisions of KRS 61.805, et. seq. OAG 89-25.”) The Madison County Fiscal Court does not argue that the subject of the meetings conducted by its telecommunications committee falls within any of the exceptions to the Act, codified at KRS 61.810. We therefore need not address this issue. All minutes of all meetings conducted by the committee which might reasonably be described as satisfying Mr. Bunger’s request should be made available to him. If no such minutes exist, the fiscal court, through its committee, must be deemed to have violated both KRS 61.835 and the Open Records Act. OAG 86-20. With respect to the other documents requested by Mr. Bunger, specifically contracts, revisions in bid pricing, and recommendations to the state CSEPP office, we conclude that Mr. Jackson’s silence, which must be treated as a denial, was improper. This Office has repeatedly recognized that the public is entitled to review the contracts, vouchers, and other business records of a public agency as a means of insuring agency accountability. OAG 82-169; OAG 92-14. With specific reference to bidding documents, we have held that such records must be made available after the bids have been opened

William Robbins
Page 4 OAG 92-32
and a vendor selected. OAG 84-224; OAG 89-31. Any documents in the possession of the fiscal court or telecommunications subcommittee which fall within the parameters of Mr. Bunger’s request must therefore be released. However, any documents containing the committee’s recommendations to the state CSEPP may be withheld, pursuant to KRS 61.878(10(h), unless and until they are incorporated into final agency action. As required by statute, a copy of this opinion will be sent to the requesting party, Mr. Kevin S. Bunger. Mr. Bunger and the Madison County Fiscal Court may challenge it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5). Sincerely, CHRIS GORMAN ATTORNEY GENERAL

Amye B. Majors
Assistant Attorney General
ABM/jlh
c:
Kevin S. Bunger