Request By:
Honorable Ava Crow
Division of Protection and Advocacy
Department of Public Advocacy
State Office Building Annex
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Cicely D. Jaracz, Assistant Attorney General
This office is in receipt of your request for an opinion in regard to the Open Records law, KRS 61.870 et seq.
Specifically you indicate that the Department of Public Advocacy is statutorily required to "protect and advocate the rights of persons with developmental disabilities." KRS 31.010, 31.030(8). In carrying out this mandate, you request records from comprehensive care centers by utilizing a release of information form signed by the client or his guardian. It is your feeling that North Central Comprehensive Care Center, Inc. (NCCCC) is violating KRS 61.874(2) by charging an unreasonable fee for the costs of copying these records. The policy of NCCCC is to charge $5.00 for the initial one to five pages and $ .50 for each additional page.
You have asked five specific questions which we will address individually.
1. Are the charges as computed by NCCCC excessive and in violation of KRS 61.874(2)?
Pursuant to KRS 61.874(2), a public agency may prescribe a "reasonable fee" for making copies of public records. The fee shall not exceed the actual cost, excluding the cost of staff. We have determined that NCCCC is not a public agency as defined by the Open Records law. NCCCC is established as a private, nonprofit corporation. We have consistently held that private, non-profit corporations are not subject to the Open Meetings and Open Records laws as they do not constitute public agencies. NCCCC is not created by state or local authority, and is not funded by state or local authority. It is thus not subject to the Open Records law and is not required to meet the "reasonable fee" mandate of KRS 61.874(2). Although we have determined that NCCCC is not a public agency, we will answer your remaining questions as they regard public agencies in general.
2. May a public agency have in effect policies which provide for free copies to some requestors and assess charges to others when providing the same information under the Open Records Act?
It is within the agency's discretion whether or not they impose a fee for copies. KRS 61.874(2). It appears that as long as full access is provided and the records are protected from damage and disorganization, there is no statutory prohibition against the agency waiving a fee for certain requestors.
3. If the costs as computed by North Central Comprehensive Care Center are excessive and this agency has paid these amounts in the past, may we off-set future charges by the amount overpaid in the past?
As we have already stated, NCCCC is not a public agency subject to the reasonable fee mandate of KRS 61.874(2). However, a public agency subject to the Open Records law is not penalized for imposition of an unreasonable fee for cost of copies of public records. Due to the difficulty in ascertaining the actual costs for past years, which would necessarily require assessment of depreciation as well as past paper, ink, and drum costs, and measuring these costs against the fee charged and number of copies made, it appears that the most equitable solution is to have the agency impose the statutorily required "reasonable fee" and have requestors from that time forward pay that amount.
4. If a public agency's rules and regulations do not conform to K.R.S. 61.870 to 61.884 as required by K.R.S. 61.876, do the rules and regulations promulgated by the Finance and Administration Cabinet then apply to that public agency until the agency brings its existing rules and regulations into conformance with the Open Records Act?
There is no penalty for failure of the agency to adopt rules and regulations in accordance with KRS 61.876. OAG 78-340. However, the rules and regulations promulgated by the Finance and Administration Cabinet substitute for the agency's own rules and regulations presumably until the agency adopts its own. OAG 81-269.
5. Should an agency's policies address the issue of (and are we entitled to) timely access to records?
Agency policies do not have to address the issue of timely access to records. KRS 61.880 provides that the agency must respond to a request for inspection within three days (except weekends and holidays) of receipt of the request. Even if the record is not immediately available, KRS 61.872(4) requires the agency to immediately notify the requestor and designate an inspection date not to exceed three days from agency receipt of the request. By implication, timely access would thus be any time less than three days from agency receipt of the request.
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It is our position that NCCCC is not a public agency under the Open Records Law. As such, they are not subject to the "reasonable fee" mandate of KRS 61.874(2).
This opinion is issued pursuant to KRS 61.880(4). A copy is being sent to NCCCC.