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 Lexington-Fayette Urban County Human Rights Commission's response to Peggy Ford's September 11, 1998 open records request for a copy of the file pertaining to a charge she filed with the Commission.
By letter dated September 16, 1998, Mr. William D. Wharton, Executive Director of the Commission, partially denied Ms. Ford's request, advising her:
Your request is granted except for the following document and/or memoranda which have been removed pursuant to KRS 61.878(1)(a)(i)(j)(k); and KRS 344.250(6).
1. Investigative Log - 3 handwritten pages - by G. Phillips, W. Wharton
2. Investigative Plan - 6 handwritten pages - by G. Phillips, W. Wharton
3. Case Submittal - 2 typed pages - by G. Phillips
4. Memo to file (2/18/98) - 1 typed page - by G. Phillips
5. Log Control Sheets - 13 typed pages - by G. Phillips
6. Case Analysis - 19 typed pages - by G. Phillips, W. Wharton
7. Anonymous witness statements/questions - 50 handwritten pages - by G. Phillips
8. Memo to file re: anonymous witness statement - 1 typed page - by G. Phillips
9. Interoffice memo to G. Phillips 4/6/98 - 2 typed pages - by W. Wharton
10. Interoffice E-mail to W. Wharton 4/6/98 - 1 typed page - by J. McCoy
11. Memo to file 8/17/98 - 1 typed page - by G. Phillips
12. Memo to file 8/18/98 - 1 typed page - by G. Phillips
13. Interoffice memo to GSP 8/20/98 - 2 typed pages - by W. Wharton
14. Interoffice memo to WDW 8/25/98 - 3 typed pages - by G. Phillips
15. Interoffice memo to WDW 9/2/98 - 1 typed page - by G. Phillips
16. Letter from HUD 8/27/98 (original and fax) - 5 typed pages
You may inspect and/or copy said file(s) on or after September 16, 1998 during regular business hours (8:00 a.m. - 5:00 p.m., Monday through Friday) and the price is fifty (50) cents per page.
In her letter of appeal, Ms. Ford appeals the Commission's partial denial of her request and argues that the its rate of fifty cents per page is excessive.
After receipt of the letter of appeal, this office sent a "Notification to Agency of Receipt of Open Records Appeal" and a copy of Ms. Ford's letter to the Commission. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Edward E. Dove, on behalf of the Commission, provided this office with a response to the issues raised in the letter of appeal. He also enclosed a copy of the Executive Director's final determination letter to Ms. Ford relative to her complaint. In his response, Mr. Dove states, in part:
The Commission on two occasions attempted to contact Ms. Ford by mailing her letters to her last known address. In the letters, the Commission advises Ms. Ford that she can review her file at the Commission and copy any documents not considered exempt at a nominal cost. Ms. Ford called upset that the Commission would charge her a fee to copy her non-exempt file. As you well know, the costs of copying documents is allowed under Kentucky law.
The letters mailed to Ms. Ford were returned to the Commission because they were refused by Ms. Ford (attached as exhibits to this letter). As you can see, the Commission has not violated any provision of the Open Records Act as is alleged by Ms. Ford. The Commission will gladly give Ms. Ford an opportunity to view her file if she would cooperate with the staff.
We are asked to determine whether the Commission's response was consistent with the Open Records Act. For reasons that follow, we conclude that, with the exception of the amount the Commission charges per copy for its records, its actions were consistent with the Act.
KRS 61.878(1)(i) and (j) permit a public agency to withhold:
(i) Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency;
(j) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
These exemptions are intended to protect the integrity of the agency's internal decision-making by encouraging the free exchange of opinions and recommendations. They have been interpreted to authorize nondisclosure of preliminary reports and memoranda containing opinions, observations, and recommendations of personnel within an agency. 94-ORD-92. If, however, the predecisional documents are incorporated into final agency action, they are not exempt.
In our view, the question raised in this appeal can be likened to the question presented to the
Kentucky Court of Appeals in City of Louisville v. Courier-Journal and Louisville Times Co., Ky.App., 637 S.W.2d 658 (1982). In City of Louisville , the court was asked to determine whether the internal files of the Louisville Police Department were exempt from public inspection under the exemptions for preliminary documents. The court answered in the affirmative, noting:
Internal Affairs, as was stipulated, has no independent authority to issue a binding decision and serves merely as a fact- finder for the convenience of the Chief and the Deputy Chief of Police.
Its information is submitted for review to the Chief who alone determines what final action is to be taken. Perforce although at that point the work of Internal Affairs is final as to its own role, it remains preliminary to the Chief's final decision. Of course, if the Chief adopts its notes or recommendations as part of the final action, clearly the preliminary characterization is lost to that extent.
City of Louisville, supra at 659. See also,
Kentucky State Board of Medical Licensure v. Courier-Journal, Ky.App., 663 S.W.2d 953 (1983);
Courier-Journal & Louisville Times v. The University of Kentucky, Ky., 830 S.W.2d 373 (1992); 94-ORD-135; 94-ORD-92. We believe that the cited authorities are dispositive of this appeal.
When a charge is filed with the Commission, it is assigned to an investigator who is responsible for collecting evidence and making recommendations relative to the charge in a final investigative report. That report, and documents therein, may or may not be adopted by the Executive Director in his letter of determination. 95-ORD-109.
After receipt of Ms. Ford's letter of appeal, Mr. Dove's response, and pursuant to KRS 61.880(2) and 40 KAR 1:030, the undersigned contacted Mr. Dove to obtain additional documentation regarding the nature of the records which were withheld. Mr. Dove explained that the documents which the Commission withheld from inspection consisted of investigative logs, log control sheets, notes, memos to file, investigative plan, interoffice communications, witness statements, case analysis, and an internal interagency letter from HUD regarding the investigation. Like the Internal Affairs Division of the Louisville Police Department, the investigator for the Commission does not have authority to issue a binding decision, but acts as a fact-finder. Similarly, the documents he generates in the course of his investigation remain preliminary unless they are adopted by the Executive Director as part of his final action.
In the instant case, the Executive Director did not adopt the investigator's notes, recommendations, or the other internal records withheld from inspection as part of his final action. Although he referred to the evidence presented in the documents, he did not expressly incorporate those documents into his final determination. Thus, we conclude that the documents withheld by the Commission did not lose their internal, preliminary character, and were properly withheld.
Because KRS 61.878(1)(i) and (j) authorize the nondisclosure of the requested documents, we decline to comment on the other exceptions cited by the Commission. It is the opinion of this office that the Commission has agreed to afford Ms. Ford access to all nonexempt public records contained in her case file, and its actions were consistent with the Open Record Act.
We note, in this regard, that the Commission has twice attempted to notify Ms. Ford by mail that she may view the nonexempt records, but that she has refused to accept the mailed letters. The Commission, in its response to this office, has again expressed its willingness to allow Ms. Ford to review the nonexempt records in her file and provide her with copies she might want. We urge the parties to work together in a spirit of cooperation toward an amicable resolution of this open records dispute.
However, we conclude that the Commission's charge of fifty cents per page is not a reasonable copying charge within the meaning of KRS 61.874(3). If a public agency charges more than ten cents per page, it has the burden of establishing that this is not an excessive fee. 94-ORD-43.
An agency can only assess a reasonable copying charge for public records not to exceed its actual costs, excluding staff time required. A number of public agencies continue to impose clearly excessive fees. Unless these agencies can document that their actual costs are greater than ten cents per page, both the courts and this office have demonstrated an unwillingness to countenance higher copying charges. See, e.g.,
Friend v. Rees, Ky.App., 696 S.W.2d 325 (1985); 94-ORD-77.
KRS 61.874(3) provides in relevant part:
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.
This provision has been interpreted to mean that the fee charged for copies should be based on the agency's actual expense, not including staff costs. The fee is thus limited to the proportionate cost of maintaining copying equipment by purchase or rental, and the supplies involved. In
Friend v. Rees, supra, the Kentucky Court of Appeals held that ten cents per page was a reasonable copying charge under the Open Records Act.
This office has previously held that a twenty-five cent copying charge is excessive when that fee is not based upon the agency's actual cost, exclusive of personnel, for making copies. 94-ORD-43; OAG 90-50. We continue to ascribe to this view. In the instant case, the Commission failed to establish that its actual cost for reproducing records is greater than ten cents per page, based on the cost of media and mechanical processing as defined in KRS 61.870(7) and (8). Thus, we conclude that fifty cents per page is an excessive copying fee. The Commission must recalculate its copying fee to conform to the requirements of KRS 61.874(3) and charge Ms. Ford accordingly.
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.