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 is before the Attorney General on appeal from the actions of the Bracken County Attorney in response to Richard C. Frommeyer's open records requests of September 21, 1998 and November 25, 1998 for copies of the following documents:
I would like to request 911 transcripts for the date of Thursday June 25<th> 1998. I would like a copy of all reports from that day. I would like to also request all reports the Sheriff's office made particularly in the morning from 7:00am to 10:00am. I would also like any reports that the dispatcher made from that particular morning from a cell phone caller by the name of Richard C. Frommeyer and any reports that the dispatcher made that morning.
I also would like a copy of the Sheriff's office phone records and any reports or phone calls the Sheriff's office would have made to Henry and Gayle Franke at [telephone number and home address] from the morning of June 25<th>, 1998.
I would also like any police reports or 911 transcripts in the past 8 years for the Franke residence. . . .
In his letter of appeal, dated November 25, 1998, Mr. Frommeyer stated that he was going to court on December 18, 1998 and had yet to receive a response to his requests.
By letter of November 30, 1998, Edward J. Rudd, Bracken County Attorney, provided this office with a copy of his November 30, 1998 response, on behalf of the Bracken County Sheriff's office and Bracken County Communications, to Mr. Frommeyer's requests. In his response, Mr. Rudd, stated:
1.) I am not the custodian of either the Sheriff's records or the 911 dispatch records.
2.) I talked with the Sheriff, who advised me that he has no records or reports regarding the Frankes other than those of dispatch. He does not keep an individual log of all local phone calls made or received. He has no record or memory of talking with the Frankes on 6/25/98 or otherwise.
3.) Marie England, Supervisor, Bracken County Communications advised as follows:
4.) I made a brief check of criminal records and find no record on the Franke's in Bracken County, Kentucky. Juvenile records are not available without an order of the Court.
5.) The dispatch notes indicate you were given a KSP number to call. If you called KSP, at any time, I would be have absolutely no way of knowing that and I have zero control over these records. You'll have to make a direct request of KSP for anything involving their records.
(Emphasis in original.)
At issue in this appeal is whether the response of the Office of the Bracken County Attorney was consistent with the Open Records Act. For the reasons that follow, with the exception of a procedural deficiency and the amount charged per copy, the response was consistence with the Act and prior decisions on this office.
KRS 61.880(1) requires that a public agency respond to an open records request in writing within three business days after its receipt. The failure to respond to Mr. Frommeyer's September 21, 1998 request in writing within three business days was a procedural violation of the Open Records Act.
Addressing the request for 911 transcripts, Mr. Rudd's response indicated that records of 911 calls kept on daily logs and tape's of the calls would be made available for Mr. Frommeyer's inspection. After receipt of Mr. Rudd's response, the undersigned contacted the Bracken County Communications relative to this issue and was advised that there were no 911 transcripts, just the logs and the tapes.
In 94-ORD-150, we held that the City of Winchester was not obligated to prepare and provide the requester with a written transcript of the 911 tape, unless it elected to do so. It was only obligated to release the record in the format in which it was currently maintained. If the public agency elects not to provide a transcript, we have held that what the requester gets is what the agency has and in the format in which the agency has it. OAG 91-12. A public agency is not required to create a document that does not already exist to satisfy a request. 98-ORD-151.
In the instant appeal, the County offered to provide Mr. Frommeyer access to either the 911 logs or the 911 tapes, which were the formats in which the 911 records were kept. We conclude this response was proper and consistent with the Open Records Act. As noted above, Mr. Frommeyer was provided with a copy of the dispatch log he requested for 6/25/98.
Mr. Rudd further indicated that the Bracken County Communications has a Basic 911 system, which has no computer capability or anyway of determining whether calls are received or made to a particular number by virtue of a printout. He explained that the only way to determine whether the Frankes called or were called by dispatch in the past 8 years would be to manually review every daily dispatch log. Mr. Rudd argues that the Open Records Act does not require a public agency to do research for a requester and it would place an undue burden for the agency review eight years of daily records to locate a given name or number.
We agree. Although Mr. Frommeyer identified the name of the party he was concerned with, he failed to provide sufficient information, such as the date of the calls, if any, over the eight year period, to enable the agency to identify and find those records. This was a blanket request for information, rather that a request for particularly identified records. It is incumbent on a requester, in framing his request, to describe the records he seeks to inspect with reasonable particularity. 95-ORD-108. If he does not, the agency is not obligated to conduct a search for the records. Under these circumstances, the County would not be required to do a manual search through eight years worth of 911 logs for any reports or calls for the Franke residence, which may or may not exist.
Moreover in his response, Mr. Rudd further advised Mr. Frommeyer that if he would provide dates, the agency would provide him copies of logs for those dates. In the alternative, Mr. Frommeyer was advised that he was welcome to come in and review the daily logs himself during regular office hours. We conclude that this response was consistent with the requirements of the Open Records Act and prior decisions of this office.
Addressing next the records requested from the Sheriff's office, Mr. Rudd advised that, with the exception of the dispatch log which was provided, the sheriff had no records regarding the Frankes. This office has consistently recognized that a public agency's response that it cannot provide copies of records which it does not have or which do not exist is consistent with the Open Records Act. 97-ORD-66.
Finally, 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 agency 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 and any copying cost charged Mr. Frommeyer should be adjusted 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.