A Kentucky State University student received a $32.40 invoice from the University of Louisville for reproducing a contract which the student requested under Kentucky's open records law.
As part of his coursework, the student submitted the request for a copy, in electronic format if feasible, of the university's March, 2018, contract — and supporting documentation — with Swope Design Group for graphic design services.
He was unpleasantly surprised to receive an invoice from the university for reproduction of responsive records in the amount of $32.40. The charge was broken down into two parts: "Copy" (24 pages @ $0.10 a page for a total of $2.40) and "Other" for staff time ($30.00).
The open records law permits public agencies, like UofL, to recover their "actual costs," meaning the cost of the medium (paper, CD, thumb drive) and mechanical processing (photocopying) costs but expressly excludes "the cost of staff required."
As it currently stands, the University of Louisville is in violation of KRS 61.874(3).
The student and his instructor are seeking some explanation from the university for its attempt to recover staff costs in the face of an explicit prohibition on the practice. Thus far, their efforts have been unsuccessful.
Their only remaining alternative is an appeal to the attorney general or the courts alleging subversion of the intent of the open records law — short of denial of inspection — based on the imposition of excessive fees. Such appeals are
authorized under the law at KRS 61.880(4) when a public agency agrees to honor a records request but places roadblocks in the requester's path.
Other examples of agency subversion of the intent of the open records law include "misdirection of the applicant" and, more commonly, unreasonable delays in producing the requested records.
The law assumes production/availability of nonexempt responsive records on the third business day after receipt of the request. Under KRS 61.872(5), any delay beyond three business days must be supported by a detailed explanation of the cause for the delay — in a written response addressed to the requester and issued on the third business day — that also identifies the earliest date the records will be available.
How sad that 40-plus year's after its enactment, the open records law is so plainly misunderstood by public agencies, including those with ample legal resources at their disposal. And how unfortunate that an aspiring reporter's first experience with the open records law is fraught with unnecessary and — absent any stated justification — illegal impediments to access.
