Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: ALBERT B. CHANDLER III, ATTORNEY GENERAL; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This is an appeal from the Madison County Detention Center's handling of Brenda Sharp's July 17, 1997, request to inspect and copy all records relating to her son's detention at the Center from January 1, 1997, to the present. On August 8, 1997, Madison County Jailer Ron C. Devere responded to Ms. Sharp's request, advising her as follows:
After a review by the Madison County Attorney, there is no problem providing your requested material[sic]. Please sign the request form and return.
Per policy of the Madison County Detention Center, copies are 50 cents a page.
Mr. Devere's response was apparently in transit when Ms. Sharp initiated this appeal on August 11, 1997.
The question presented in this appeal is whether the Madison County Detention Center violated the Open Records Act in its response to Ms. Sharp's request. For the reasons which follow, we find that although the Center properly refused to release the records to Ms. Sharp until she signed her request and paid for copies, it erred in failing to respond to her request within three business days, in failing to afford her timely access to the records, and in imposing a copying charge in excess of the ten cents per page which has been approved by the courts and this office.
In a follow-up letter to this office, Mr. Devere noted that he had not denied Ms. Sharp's request, but had merely insisted that she sign it and pay the 50 cents per page copying charge prior to receiving copies. As of August 22, when he sent this letter to the Attorney General, Ms. Sharp had neither signed the request nor paid for copies. These arguments notwithstanding, we believe that this appeal is properly subject to review by the Attorney General pursuant to KRS 61.880(4) which provides:
If a person feels the intent of KRS 61.870 to 61.884 is being subverted by an agency short of denial of inspection, including but not limited to the imposition of excessive fees or the misdirection of the applicant, the person may complain in writing to the Attorney General, and the complaint shall be subject to the same adjudicatory process as if the record had been denied.
To the extent that several issues remain in dispute, this appeal is ripe for adjudication by this office.
We begin by noting that KRS 61.880 sets forth the duties and responsibilities of a public agency in responding to a request made under the Open Records Act. Subsection (1) of that provision requires that a public agency, upon receipt of a request under the Act, respond in writing to the requester within three business days of receipt, and indicate whether the request is granted or denied.
Nothing in the statute permits a public agency to postpone or delay this statutory deadline while the agency confirms the propriety of release of the requested records with agency counsel. As we have so often observed:
The burden on the public agency to respond in three working days is, not infrequently, an onerous one. Nevertheless, the only exceptions to this general rule are found at KRS 61.872(4) and (5). Unless the person to whom the request is directed does not have custody and control of the records, or the records are in active use, in storage, or are not available, the agency is required to notify the requester of its decision within three working days, and to provide the requester with timely access to the requested records.
93-ORD-134, p. 10. In failing to respond to Ms. Sharp's request within three business days and afford her timely access to the records she sought, the Madison County Detention Center violated KRS 61.880(1) and KRS 61.872(5).
Ms. Sharp's request was submitted on July 17, 1997. The Detention Center's response was issued on August 8, 1997. At least sixteen business days elapsed between the date of her request and the date on which the only written communication by the Detention Center was issued. We believe that a delay of this duration, coupled with the Center's failure to afford Ms. Sharp timely access to the records she sought, is clearly unreasonable and therefore contrary to both the letter and the spirit of the Open Records Act. With respect to the issue of timely access, the Attorney General has observed:
The Open Records Act does not prescribe a reasonable time within which access must be afforded to public records. As we have noted, KRS 61.872(5) normally requires an agency to notify the requester and designate an inspection date not to exceed three days from agency receipt of the request. OAG 84-300. However, when a request is made for voluminous records for a period of several years, such time limitations are virtually impossible to meet. . . . It is apparent that the task of gathering the documents might necessitate a reasonable extension of the three day period of limitation.
We believe that a determination of what is a "reasonable time" for inspection turns on the particular facts presented, i.e., the breadth of the request and the number of documents it encompasses, as well as the difficulty of accessing and retrieving those records. Public agencies must work, in a spirit of cooperation, with individuals who request to inspect their records to insure that those individuals are afforded timely access to the records they wish to inspect.
94-ORD-134, p. 11, 12. Ms. Sharp did not request voluminous records for a period of several years. She requested only records pertaining to her son's confinement at the Detention Center since January 1, 1997. Having failed to afford her access to these records within three business days, the Madison County Detention Center violated KRS 61.872(5).
In 94-ORD-134, the Attorney General approved a policy of processing open records requests through agency counsel, noting that such a policy "insures uniformity and adherence to the law." 94-ORD-134, p. 12. We also noted, however, that the policy may "be problematic if it occasions delays in agency response." Id. In that decision, as in the present appeal, we encourage the public agency, here the Madison County Detention Center, to streamline its policy by educating its employees on the importance of providing a timely response as well as timely access to public records.
Turning to the issue of the 50 cents per page copying charge imposed by the Detention Center, we find that unless the Center can produce evidence substantiating that this figure represents its actual costs, excluding staff time, it is excessive and violates KRS 61.874(3). That statute provides:
The public agency may prescribe a reasonable fee for making copies of nonexempt public records requested for use for noncommercial purposes which shall not exceed 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. If a public agency is asked to produce a record in a nonstandardized format, or to tailor the format to meet the request of an individual or a group, thepublic agency may at its discretion provide the requested format and recover staff costs as well as any actual costs incurred.
Pursuant to KRS 61.874(3), a public agency may only assess a reasonable copying charge for public records not to exceed its actual costs, excluding staff time required. This office has long recognized that unless an agency can document that its actual costs are greater than ten cents per page, both the courts and this office are unwilling to countenance higher copying charges. See, e.g., Friend v. Rees, Ky.App., 696 S.W.2d 325 (1985); OAG 80-421; OAG 82-396; OAG 84-91; OAG 87-80; OAG 89-9; OAG 91-193; OAG 91-200; 92-ORD-1491; 94-ORD-77.
In OAG 90-50, this office held that a 25 cents per page copying charge was excessive when the fee was not based on the agency's actual cost, exclusive of personnel costs. In Friend v. Rees , above, the Kentucky Court of Appeals held that ten cents per page was a reasonable copying charge under the Open Records Act. Unless the Madison County Detention Center can demonstrate that its actual cost for reproducing records is greater than ten cents per page, based on the cost of media and mechanical processing (meaning, for example, the paper and copying machine costs), it must recalculate its copying fee to conform to the requirements of KRS 61.874.
Having said this, we nevertheless find that the Madison County Detention Center acted consistently with the Open Records Act in requiring Ms. Sharp to sign her request and pay for copies before releasing the records to her. KRS 61.872(2) provides that the official custodian "may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected. " (Emphasis added.) At page 3 of 94-ORD-101, this office observed:
A public agency cannot demand or require more in regard to a request to inspect public records than is required by KRS 61.872(2). The public agency may require, if it desires to do so, that a request or application be in writing. If a written request or application is required, the statute is satisfied if the written application whether or not submitted on the public agency's form contains the following:
We therefore affirm the Detention Center's refusal to release the records to Ms. Sharp until she signs her request.
We also affirm the Center's refusal to release the records to Ms. Sharp until she pays for copies. KRS 61.872(3)(b) provides that public agencies must:
Mail copes 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. If the person requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing.
Additionally, KRS 61.874(1) provides:
When copies are requested, the custodian may require a written request and advance payment of the prescribed fee, including postage where appropriate.
The Madison County Detention Center may properly require advance payment of a reasonable copying charge, including postage, and Ms. Sharp cannot obtain copies of the records she seeks until she pays the charge.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but he should not be named as a party in that action or in any subsequent proceeding.