Monday, February 2, 2009

More open government rulings from the Attorney General

The following Open Records/Meetings Decisions were issued by the Office of the Attorney General on January 26-30, 2009 (for complete texts go to the Links of Interest below):

1. 09-OMD-014 (Butler County)

Butler County Fiscal Court violated the Open Meetings Act by failing to adhere to notice requirements for special meetings codified at KRS 61.823 in the conduct of its budget committee's special meetings. Conflicting evidentiary record precludes conclusive determination whether Fiscal Court violated KRS 61.810(2) in conducting a series of less than quorum meetings, but if such conduct has occurred, or is occurring, it must cease.

2. 09-ORD-015 (Jefferson County)

Louisville-Jefferson County Metro Revenue Commission properly relied on KRS 67.790(8) and KRS 131.190(1), incorporated into Open Records Act by KRS 61.878(1)(l), in denying request for information appearing on IRS Form 1099 submitted by a named company to the Commission for purposes of collection of occupational license tax.

3. 09-ORD-016 (Franklin County)

Because the Transportation Cabinet has not received, and therefore does not possess any complaints that are responsive to initial request as framed, the Cabinet did not violate the Act in denying the request; a public agency cannot produce nonexistent records or those which it does not possess, nor is a public agency required to "prove a negative." In the absence of a prima facie showing that responsive complaints exist in the possession of the agency, its denial must be affirmed in accordance with Bowling v. Lexington-Fayette Urban County Government, Ky., 172 S.W.3d 333, 340-41 (2005). With regard to "internal complaint referrals" currently being investigated by the Cabinet's Office of Inspector General, which may be responsive, the Cabinet properly denied access on the basis of KRS 61.878(1)(h), having ultimately demonstrated the harm that would result from premature disclosure.

4. 09-ORD-017 (Jefferson County)

E-mails protected by attorney-client privilege were exempt from disclosure under KRS 61.878(1)(l) notwithstanding that they related to the requesting University of Louisville employee.

5. 09-ORD-018 (Harlan County)

City of Cumberland violated KRS 61.880(1) in failing to respond to open records request in writing and in postponing requester's access to operational and financial records owning to the city clerk's absence.

6. 09-ORD-019 (Montgomery County)
City of Jeffersonville cannot produce for inspection a nonexistent record nor does the City have to "prove a negative" in order to refute a claim that a certain record exists under the rule announced in Bowling v. Lexington-Fayette Urban County Government, Ky., 172 S.W.3d 333 (2005); however, the City's response was deficient insofar as the City failed to affirmatively indicate whether the requested ordinance exists.

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