Request By:
Ms. Pauline Smith
Executive Director
Martin County Housing Agency
Route 40
Warfield, Kentucky 41267
Opinion
Opinion By: Steven L. Beshear, Attorney General; Carl Miller, Assistant Attorney General
Mr. David Lyttle, Staff Attorney, Appalachian Research and Defense Fund of Kentucky, Inc., has filed an Open Records Appeal with the Attorney General pursuant to KRS 61.880 on behalf of Jenny Endicott, President, Concerned Citizens of Martin County, concerning your response to Ms. Endicott's request for a copy of certain public records in your custody. It is alleged that by letter dated March 21, 1980 Ms. Endicott requested a copy of the following named documents:
"1. Minutes of Citizen Advisory Committee meetings
2. Minutes of Martin County Housing Agency Board meetings
3. Minutes of all public hearing materials and registers and legal notices of hearings
4. Copy of the Dempsey Site CDBG application
5. Copy of Farmer's Home plan for Dempsy Project
6. Copy of A.R.C. Plan for Dempsey Site (B-78-SD-21-0002)
7. Copy of application of CDBG Trailer Site Development Project
8. Environmental assessment for Trailer Site Development Project
9. Martin County Housing Agency public records procedure
10. All correspondence from Army Corps of Engineers with regards to the Beauty area
11. Original CDBG pre-application for relocation of Beauty/Warfield, Lovely areas
12. Revised Citizen Participation plan
13. Copy of August, 1979 Martin County Housing Agency Performance Report."
By letter dated April 28, 1980 (copy of which was sent to us by Mr. Lyttle) you responded that to provide the requested information at this time would create an undue burden on your staff; that the minutes of most meetings are taped and it would require time to transpose them; that you were not refusing public information to anyone.
It is also alleged that your agency charges $1.00 per page as the cost of making copies of public records. Mr. Lyttle has requested an opinion of the Attorney General on the allegations stated above as provided by KRS 61.880(2).
OPINION OF THE ATTORNEY GENERAL
First, we would point out that an agency is required to make a written response to a written request to inspect public records within three days from the receipt of the request "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" is given. KRS 61.872(4). However, in this case the request was not for opportunity to inspect records but that copies of records be provided. In OAG 76-375 we said:
"The right to have copies of records is ancillary to the right of inspection and does not stand by itself. If a person has not inspected the records he desires to copy and cannot describe them with specificity, there is no requirement that copies of any records must be delivered to him. A citizen may make a fishing expedition through public records on his own time and under the restrictions and safeguards of the public agency, but a willingness to pay for copies of records is not sufficient to put the state agency under obligation to furnish broad categories of records."
Ms. Endicott certainly requested a copy of broad categories of records in her letter of March 21, 1980. It is our opinion that the records listed above should be made available for inspection by the public and that any person who inspects the records and selects records to be copied should be sold a copy of the requested records upon advance payment of the prescribed fee. KRS 61.874.
It is our opinion that $1.00 a page for a copy of a public record is an unreasonable fee. KRS 61.874(2) provides:
"The public agency may prescribe a reasonable fee for making copies of public records which shall not exceed the actual cost thereof not including the cost of staff required."
Since the cost of staff time required is excluded from the fee which may be charged for copies of public records, the fee charged for copies should be based on the actual expenses to the agency, such as the cost of maintaining copying equipment by purchase or rental and the supplies involved.
Finally, it is our opinion that a public agency which has a board and board meetings speaks through its minutes as to actions taken and that the minutes of the public agency should be made available to the public as soon as they are finally approved by the board and that such approval should be no later than the next meeting of the board. (KRS 61.835, Kentucky Open Meetings Law).
A copy of this opinion is being sent to Mr. Lyttle, representing Ms. Endicott. We hope that it will facilitate a workable agreement between your agency and the public concerning access to public records.