Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
These matters come to the Attorney General as separate appeals from Kentucky State Penitentiary's responses to various requests for public records submitted by Thomas D. Craig, an inmate at the Penitentiary. Because the transactions giving rise to Mr. Craig's appeals raise common questions of law, they are consolidated for purposes of administrative adjudication. We are asked to determine:
1) Whether Kentucky State Penitentiary violated the Open Records Act in failing to respond to Mr. Craig's requests within three business days of receipt of the request;
2) Whether Kentucky State Penitentiary violated the Open Records Act in denying Mr. Craig's request for the names and home addresses of all employees of the Penitentiary, as well as the Penitentiary's master menu, on the basis of KRS 61.878(1)(l) and KRS 197.025(2); and
3) Whether Kentucky State Penitentiary may properly charge sales tax, in addition to the reasonable fee authorized under KRS 61.874(3), for making copies of nonexempt records.
We believe that the answer to each of these questions is "no." We find that the Penitentiary properly relied on KRS 197.025(2) and (7), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), in responding to Mr. Craig's requests on the fifth day after receipt, and in denying him access to records that did not pertain to him. However, in light of our decision in 98-ORD-88, we find that the Penitentiary subverted the intent of the Open Records Act, short of denial of inspection, by requiring Mr. Craig to pay sales tax for copies of public records in addition to the reasonable fee contemplated by KRS 61.874(3).
In his letter of appeal, Mr. Craig objects to the five day deadline for agency response to which the Penitentiary adheres in its processing of open records requests. We find no error in this practice. KRS 197.025 was substantially amended in the 1998 legislative session. Among the changes made by the General Assembly was the inclusion of a provision extending the deadline for the Department of Corrections', and state penal institutions such as Kentucky State Penitentiary's, response to an open records request from the residual three day statute, codified at KRS 61.880(1), to a specific five day statute, codified at KRS 197.025(7). KRS 61.880(1) is a general statute that only applies where there is no other applicable statutory deadline for agency response. KRS 197.025(7) is a specific statute pertaining to the deadline for the Department of Corrections', and the Penitentiary's, response to open records requests. The specific statute governs over the general statute.
City of Bowling Green v. Board of Education, Ky., 443 S.W.2d 243 (1969). In the appeal before us, the Penitentiary's response time is governed by the specific statute found at KRS 197.025(7). Its response was issued in a timely fashion. See, 98-ORD-146.
Similarly, Mr. Craig objects to Kentucky State Penitentiary's denial of his requests for records containing the names and home addresses of all Penitentiary employees, and the Penitentiary's master menu. Again, we find no error in these denials. The 1998 amendments to KRS 197.025 include the following provision:
KRS 61.872 to the contrary notwithstanding, the department shall not be required to comply with a request for any record from any inmate confined in a jail or any facility or any individual on active supervision under the jurisdiction of the department [of Corrections], unless the request is for a record which pertains to that individual.
KRS 197.025(2). This provision which is incorporated into the Open Records Act by operation of KRS 61.878(1)(l), limits an inmate's access to records which do not pertain to him. Neither of the records which Mr. Craig requested pertain to him. "To hold otherwise," this office has noted, "would open the door to other tenuous claims thereby subverting the intent of the recent enactment." 98-ORD-150, p. 3. It is our opinion that Kentucky State Penitentiary properly denied these requests.
However, we find that Kentucky State Penitentiary subverted the intent of the Open Records Act, short of denial of inspection, by imposing a 6 percent sales tax on copies of records which it released to Mr. Craig. As previously noted in 98-ORD-88, this office addressed the issue of the propriety of a penal institution's imposition of a 6 percent sales tax on copies of records requested under the Open Records Act. At page 4 of that opinion, the Attorney General held that although KRS 61.874(3) authorizes the imposition of a reasonable fee, that fee can only be one which compensates the agency for the actual cost of furnishing the records. Continuing, we observed:
Providing copies of nonexempt public records is not a "sale" of the records. It is a compliance with the legislative mandate to make public records open and available for inspection and at a reasonable cost. KRS 61.872(3); KRS 61.874(3).
98-ORD-88, p. 4. That decision was not appealed, and therefore has the force and effect of law. KRS 61.880(5)(b).
We affirm that decision today. In enacting the Open Records Act, the Kentucky General Assembly imposed a duty on public agencies to furnish applicants with copies of nonexempt public records upon request and upon advance payment of the fee prescribed by KRS 61.874(3), including postage where appropriate. This office does not believe the General Assembly envisioned that the discharge of this statutory duty would be treated as a sale.
KRS 139.200 provides:
For the privilege of making "retail sales" or "sales at retail, " a tax is hereby imposed upon all retailers at the rate of six percent (6%) of the gross receipts of any retailer derived from "retail sales" or "sales at retail" made within this Commonwealth on and after July 1, 1990. (Emphasis added.)
This statute requires "retailers" to collect a 6 percent tax for the privilege of making retail sales. Conversely, KRS 61.874 places a "duty" on a "public agency" to provide copies of documents. The taxable event is exercising the privilege of making retail sales. Public agencies do not exercise such a privilege in providing copies of public records, but rather discharge a duty. We do not believe that in the context of a request for public records under the Kentucky Open Records Act, the legislature intended that public agencies should be equated with retailers, and applicants for public records should be equated with consumers.
The narrow question that is therefore before us is whether Kentucky State Penitentiary subverted the intent of the Open Records Act short of denial of inspection by imposing excessive fees, meaning fees that exceed its actual costs of reproduction as defined in KRS 61.874(3). This is a proper subject for adjudication by the Attorney General under KRS 61.880(4). To the extent that the copying fees imposed on Mr. Craig reflected an amount that was greater than the Penitentiary's actual costs, that fee was clearly excessive. Kentucky State Penitentiary must recalculate its copying fees to conform to the Attorney General's decision. Alternatively, Kentucky State Penitentiary may appeal the Attorney General's decision to the circuit court. Kentucky State Penitentiary cannot, however, elect to simply ignore 98-ORD-88 and this decision.
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.