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 responses of the Housing Authority of Falmouth to the open records request of E. J. Hurst II for certain of the Authority's records.
By letter dated September 14, 1998, Mr. Hurst requested copies of the following records:
1. Admission, administration, and occupancy plans for any tenant-or project-based government housing subsidy program available through Housing Authority of Falmouth;
2. Representation and other agreements regarding legal counsel or other legal services between any non-government employee or private attorney and Housing Authority of Falmouth;
3. Annual accounting of evictions in forcible detainer prosecuted by Housing Authority of Falmouth between January 1, 1988 and September 30, 1998, to include: (a) total number of forcible detainer petitions filed by HAF; and (b) total number of evictions executed by HAF.
By letter dated September 19, 1998, Lisa Greene, Executive Director, Housing Authority of Falmouth, acknowledged receipt of the request on September 16, 1998 and advised Mr. Hurst that the Authority would provide the requested documents to the extent they could locate them and the records actually exist. In her response, she further stated:
Because of the extensive nature of your open records request, and the small size of this Housing Authority and its staff, it will take several weeks to determine where and if these records exist. In the meantime, this letter is a response to your open records request letter, within the allowed three day time frame pursuant to the Kentucky Open Records Act.
You should be aware that not all of the information may be available for dissemination to the general public if it violates the privacy restrictions set forth in said act.
In addition some of the records you requested, such as forcible detainers and evictions are more readily available in a computerized format in the Pendleton District County Court Clerk's office.
By letter dated September 18, 1998, Ms. Greene again responded to Mr. Hurst's September 14, 1998 open records request. In this response, Ms. Greene also acknowledged receipt of the request on September 16, 1998 and responded as follows:
1. Enclosed, please find our admission and occupancy policies as requested.
2. Our eviction standards are based on the occupancy plan and the lease agreement, both of which are HUD-approved. There is no separate eviction policy.
3. There are no written agreements for legal services.
4. There is no index or summary of evictions and forcible detainers maintained by the Authority. As this information is of public record at the Pendleton County Court Clerk's office, you may want to inquire there.
In his letter of appeal, dated September 18, 1998, Mr. Hurst appeals the Authority's charge of 25 cents per copy as being unreasonable; its failure to provide a copy of any written agreements or other records relating to representation by outside counsel; and argues that the Authority's misdated and incongruent responses represents evidence of subversion of the intent of the Open Records Act in violation of KRS 61.880(4).
After receipt of the letter of appeal, we sent a "Notification to Agency of Receipt of Open Records Appeal" to the Authority. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, R. Gregory Lathram, counsel for the Authority, provided this office with a response to the issues raised in Mr. Hurst's appeal.
In his response, Mr. Lathram advised that the Authority did not ask for payment for the records it provided and would return Mr. Hurst's check to him. However, he argued that a "copy cost of $ 0.25 per page for a small, non-business copier which essentially does not produce mass copies is not unreasonable."
Addressing the issue regarding the request for a copy of any written agreements or other records relating to representation by outside counsel, Mr. Lathram explained that, although the Authority had, in good-faith, responded that there was no written agreements for legal services, he had been under contract with the Authority since February 28, 1992. Mr. Lathram indicated that, along with his response to the letter of appeal, he provided Mr. Hurst with a signed copy of the contract from his files, since it appeared the Authority could not locate its copy.
We are asked to determine whether the actions and responses of the Authority were in violation of the Open Records Act. For the reasons that follow, we conclude that, with the exception of the amount the Authority charges per copy for its records, the actions of the Authority were in substantial compliance with the Act.
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, Ky.App., 696 S.W.2d 325 (1985), 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 Authority 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 twenty-five cents per page is an excessive copying fee. The Authority must recalculate its copying fee to conform to the requirements of KRS 61.874(3) and charge Mr. Hurst accordingly.
Turning next to the request for a copy of any written agreements or other records relating to representation by outside counsel, the Authority in its September 18, 1998 response stated there were no written agreements for legal services. However, as noted above, Mr. Lathram, responding on behalf of the Authority, has provided Mr. Hurst with a signed copy of the contract agreement which provides that Mr. Lathram is to serve as legal counsel for the Authority.
40 KAR 1:030, Section 6. Moot Complaints, provides:" If the requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue an opinion in the matter." Since Mr. Hurst has been provided with the representation agreement regarding Mr. Lathram as private legal counsel, the issue as to this record is moot.
Finally, the Authority does not explain the incongruity of the dates and substance between its responses of September 18 and 19, 1998 to Mr. Hurst's September 14, 1998 request, which the Authority stated it received on September 16, 1998. However, both responses to Mr. Hurst's request were provided within three business days after its receipt. Thus, the responses were in compliance with the time requirements of KRS 61.880(1).
With exception to the legal representation contract record dealt with above, the September 18, 1998 response was consistent with the Open Records Act in that it notified Mr. Hurst that records relating to admission and occupancy policies he requested were being made available to him; explained that there was no separate eviction policy, as the eviction standards used were based on the occupancy plan and the lease agreement, both of which are HUD-approved; and stated that there was no index or summary of evictions and forcible detainers maintained by the Authority. An agency cannot make available records which it does not have or which do not exist. 97-ORD-66. Moreover, to assist Mr. Hurst in finding the information he was seeking, the Authority advised that an index or summary of evictions and forcible detainers, which it did not have, might be obtained at the Pendleton County Clerk's office. See KRS 61.872(4).
The September 19, 1998 response timely notified Mr. Hurst that because of the extensive nature of his records request, and the small size of the Authority and its staff, it would take several weeks to determine where and if these records exist. Although the response explained the cause for further delay, the response was procedurally deficient to the extent it failed to provide the place, time, and earliest date on which the public records would be available for inspection as required by KRS 61.872(5).
Based on the foregoing, it is the conclusion of this office that the responses of the Authority were in substantial compliance with the Open Records Act and do not represent evidence of the agency's subversion of the intent of the Act in violation of KRS 61.880(4).
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.