Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
This matter comes to the Attorney General on appeal from the Breathitt County Health Department's response to the open records request of Mr. Griffith for copies of all checks issued by the agency since 1992.
Sheila Sharpe, Ed. D., Director, Breathitt County Health Department, responding to Mr. Griffith's request, stated:
This letter is in response to your letter of request to me dated 8-21-97 and received 8-22-97. It is an unreasonable burden for me to search and copy all checks that have been issued since March 30, 1992 as outlined in KRS 61.872, paragraph 6.
I will provide access to all checks for you to view and copy at a time of convenience for the Breathitt County Health Department. Please contact me and give me times that you would come to the Agency for the above in order that I can comply with your request.
After receipt of the notification of appeal letter from the Attorney General, Dr. Sharpe sent a letter to Mr. Griffith responding to the issues raised in the appeal. A copy of that letter was sent to this office. In her letter, Dr. Sharpe stated, in relevant part:
As noted in my August 22, 1997 letter to you, you were asked to contact me for a time to view and copy said checks. You did not respond. I regret any confusion this may have caused and will have the checks for you by Friday November 14, 1997.
We are asked to determine whether the response of the Health Department was consistent with the Open Records Act. For the reasons which follow, we conclude that it was.
KRS 61.872(3)(a) and (b) establish guidelines for records access under the Open Records Act. That statute provides:
(3) A person may inspect the public records:
(a) During the regular office hours of the public agency; or
a. By receiving copies of the public records from the public agency through the mail. The public agency shall 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. 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.
The statute thus contemplates records access by one of two means: On-site inspection during the regular office hours of the agency, in suitable facilities provided by the agency, or receipt of the records from the agency through the mail. A requester who both lives and works in the same county where the records are located may be required to inspect the records prior to receiving copies. 97-ORD-3. A requester who lives or works in a county other than the county where the public records are located may demand that the agency provide him copies of records, without inspecting those records, if he precisely describes the records and they are readily available within the agency. 96-ORD-186.
In addition, KRS 61.874(3) provides for the imposition of a reasonable fee for making copies "which shall not exceed the actual cost of reproduction, including the cost of the media and any mechanical processing cost incurred . . ., but not including the cost of staff required." In Friend v. Rees, Ky. App., 696 S.W.2d 325 (1985), the Court of Appeals found ten cents a copy was a reasonable fee for reproducing standard hard copy records. The Attorney General has adopted this position in a long line of opinions. 96-ORD-186.
Consistent with KRS 61.872(3)(a) and (b), the Health Department promptly notified Mr. Griffith that the requested records would be made available for his inspection and copying and asked him to contact the agency to make the necessary arrangements.
According to documentation supplied this office, Mr. Griffith did not respond to the Health Department's request for him to make arrangements to inspect the records he requested. (If Mr. Griffith lives in Breathitt County, he could have been required to view the requested records at the office of the Breathitt County Health Department before obtaining copies. 97-ORD-3.) Notwithstanding this failure to respond, the Health Department nevertheless agreed to provide him with copies of the checks. The Open Records Act does not require more. 97-ORD-16. Accordingly, it is the decision of this office that the actions of the Breathitt County Health Department were proper and consistent with provisions of the Open Records Act.
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 should not be named as a party in that action or in any subsequent proceeding.