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 actions of the Division of Pesticides, Department of Agriculture, in response to Robert Lee Kemper's September 25, 1998 open records request for agency records relating to complaints or inspections at 8010 Jonquil Lane and 8009 Columbine Drive in Louisville, Kentucky.
In his letter of appeal, dated October 13, 1998, Mr. Kemper stated that he had yet to receive a written response from the Department.
By letter dated, October 14, 1998, Jack Custer, Assistant Director, Division of Pesticides, Department of Agriculture, responded to a subsequent fax request sent by Mr. Kemper on October 13, 1998. In his response, Mr. Custer stated:
This is in response to our two telephone conversations on October 13, 1998 regarding the "open records request" that you sent to the Division of Pesticides. Your FAX request for open records was received on September 25, 1998, in addition to a telephone call from you to our Structural Pest Control Branch Manager, and two telephone calls to me concerning this matter. I received the second phone call on Tuesday, October 13, 1998. At that time I was unable to locate the report in the office. I contacted Steve Alvey, State Inspector, and he advised me that he had completed and mailed the report on Friday, October 9, 1998 and that we should receive it either Tuesday or Wednesday. The report was received on Wednesday, October 14, 1998.
Mr. Custer further advised Mr. Kemper that the Department did not mail copies of reports to the public until an investigation was completed and reviewed by his office to determine if additional action was necessary. He stated that it was the Division's policy to respond to open records requests within three (3) working days. He indicated that a copy of complaint file # 980918001 would be forwarded to him upon receipt of a check for $ 7.60, which included $ 5.00 for a Base Processing and Handling Fee and $ 2.60 for copies of twenty-six (26) printed pages at $ .10 per page.
We are asked to determine whether the actions of the Department were consistent with the Open Records Act. For the reasons that follow, we conclude the agency's actions were consistent in part and inconsistent in part with the Act.
KRS 61.880(1) requires that an agency must respond to an open records request in writing within three written days after its receipt. If an agency denies, in whole or part, inspection of any record, its written response must include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld.
The failure of the Department to respond to Mr. Kemper's September 25, 1998 request in writing within three working days after its receipt was a procedural violation of the Act. Although preliminary investigative records may be properly withheld from inspection, under appropriate circumstances, by citing exceptions such as KRS 61.878(1)(i) and (j), relating to preliminary documents, and explaining their application to the withheld records, the agency is still required to respond in writing and meet the requirements of KRS 61.880(1) set out above.
However, the substantive issue in this appeal is moot as the Department has provided Mr. Kemper with the file he requested. 40 KAR 1:030, Section 6, provides:
Moot Complaints. If the requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter.
After receipt of the "Notification to Agency of Receipt of Open Records Appeal," Mr. Custer provided this office with a response to the issues raised in the appeal. In his response, Mr. Custer stated that on October 20, 1998, after receipt of a check in the amount of $ 7.60 for copies, the Department mailed Mr. Kemper a copy of complaint, ID # 98091800, received from 8010 Jonquil Drive and a complete copy of the complaint investigation. Mr. Custer further advised that the Department never received a complaint from the 8009 Columbine address listed in Mr. Kemper's request. Accordingly, since the Department has provided the requested records it does have to Mr. Kemper, this issue is moot and no decision as to it will be rendered.
However, we conclude that the Department's action in charging a $ 5.00 fee for processing and handling the open records request is inconsistent with the Open Records 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.
However, there is no provision in the Open Records Act for the charging of a $ 5.00 fee for handling and processing an open records request. Accordingly, the Department must recalculate its copying charge to conform to the requirements of KRS 61.874(3) and charge Mr. Kemper 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.