A reporter for The State Journal, Austin Horn, recently asked the Kentucky Open Government Coalition about the legality of an open records policy adopted by the Kentucky Capital Development Corporation.
The open records law requires all public agencies to adopt and "display in a prominent location accessible to the public" rules and regulations "in conformity with the provisions of [the open records law] to provide full access to public records. . . ." This is a frequently overlooked statutory requirement that has existed in the law since its enactment in 1976.
https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=23063
KCDC should therefore be applauded for complying with a law that is intended to benefit both the agency and the public it serves but that is often ignored.
Our review of KCDC's policy raised concern. Although it conformed to the open records law in part, it did not conform in full.
Our concerns centered on vaguely worded provisions relating to onsite inspection of KCDC records, the format in which its records are reproduced, and reproduction fees.
The policy states:
"Considering the agency has only one full-time staff person and one part-time staff person, all requesters will be permitted to conduct onsite inspection of records. Any copies requested of those records must be made by the requester upon approval by the custodian and prepayment by the requester. KCDC will not produce any record in a format other than the format it already maintains the record in."
Problem 1: Public agencies have a duty to mail copies of public records under statutorily defined circumstances.
Since 1992, the open records law has required public agencies to "mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency" and upon prepayment of copying and postage fees.
https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=48750
(Although Kentucky's law lags behind technology, this statute has been interpreted to extend to requests for electronically stored records to be transmitted electronically.)
KCDC cannot override this legal requirement by "permitting" all requesters to conduct onsite inspection of its records before obtaining copies.
To "permit" all requesters to conduct onsite inspection — if "permit" equates to "require" — violates the open records law.
Problem 2: Once a requester has inspected a record, the agency cannot refuse him or her copies. The requester is entitled to copies of all records he inspected — and wishes to obtain copies of — and his or her entitlement is not conditioned "upon approval by the custodian."
This is what prompted the Coalition to point out that KCDC will save no time and no effort by its proposed pre-1992 onsite inspection policy. KCDC will still be required to locate, retrieve, review, and — if appropriate— redact all responsive records. Other than staff time spent at the copying machine making copies — a task which KCDC apparently shifts to the requester — the time and effort required to fulfill the request remains the same.
To refuse a requester copies of records he has been permitted to inspect violates the open records law.
Problem 3: Although KCDC is not required to "convert hard copy format records to electronic formats," it is required to to produce nonexempt public records "in either standard electronic or standard hard copy format, as designated by the party requesting the records, where the agency currently maintains the records in electronic format."
https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=23061
This is the law and has been the law since 1994.
If KCDC maintains a requested record in electronic format, but the requester prefers to obtain a copy in hard copy format, KCDC must print out a hard copy of the electronic record "as designated by the requester."
To refuse to "produce any record in a format other than the format it already maintains the record in" violates the open records law.
KCDC's policy governing copying fees is also problematic. The agency policy states:
"A fee of 13 cents will be charged for each page requested, whether printed and sent or sent digitally. This fee may be waived if only a few pages are requested and can be sent digitally without the need to be printed and scanned."
Problem 4: The open records law does not establish a reasonable copying fee for nonexempt records. The fee is based on the "actual cost of reproduction, including the costs of the media and any mechanical processing cost incurred by the public agency, but not including the cost of staff required."
https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=23061
Caselaw and state regulation has fixed that reasonable fee at ten cents per page. Any public agency that imposes a copying fee that exceeds ten cents per page must substantiate that the fee reflects its actual cost excluding staff costs.
https://www.leagle.com/decision/19851021696sw2d32511021
https://apps.legislature.ky.gov/law/kar/200/001/020.pdf
If KCDC cannot verify that it's per page actual cost of reproduction, excluding staff time, is 13 cents, it's policy subverts the intent of the open records law short of denial of inspection.
https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=23065
Problem 5: KCDC cannot charge a fee of 13 cents per page "for each page requested . . . and sent digitally."
The reasonable fee provisions of the open records law are cost recovery provisions. If no costs are incurred in reproduction and transmission — other than the device on which the records are downloaded for transmission — no costs can be imposed other than the actual cost of the device (e.g. the thumb drive).
If the records are transmitted electronically — e.g., by email — the agency cannot legally impose a 13 cent per page copying fee or any other fee since it has incurred no actual costs.
To impose a per page fee for records downloaded on a device and then transmitted, or transmitted electronically, subverts the intent of the open records law short of denial of inspection.
https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=23065
KCDC would also do well to designate a specific number of copies for which fees will be waived - 10, 50, 100, as it sees fit — lest it be accused of arbitrariness.
As the Coalition indicated in discussions with The State Journal, agencies across the Commonwealth face similar challenges. But policies adopted to facilitate public access should never have the intended or unintended consequence of impeding public access. KCDC's policy disserves the public as well KCDC itself.
KCDC must reprioritize its open records duties, acknowledging that "discharge of these duties is required by law, and is as much a legal obligation of a public agency as the provision of its other services to the public."
https://ag.ky.gov/Priorities/Government-Transparency/orom/2001/01ORD021…
https://ag.ky.gov/Priorities/Government-Transparency/orom/2019/19ORD045…
The Coalition intended no offense to KCDC or the attorneys with whom it consulted for approval of its policy. Our goal was to identify what we still consider glaring errors in the policy, as described above, to encourage revision consistent with the open records law and, ultimately to promote the public's right to know.
