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 Lexington-Fayette Urban County Human Rights Commission's partial denial of Doris J. Warfield's open records request, dated August 19, 1999, for a copy of the "investigative files regarding Warfield vs. St. Joseph Hospital."
By letter dated August 25, 1999, Mr. William D. Wharton, Executive Director of the Commission, partially denied Ms. Warfield's request, advising her:
This is to acknowledge receipt of your request of August 19, 1999, which was filed in our office on August 24, 1999, requesting to inspect and/or copy the above styled case(s).
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):
You may inspect and/or copy said file(s) on or after August 25, 1999 during regular business hours (8:00 a.m. - 5:00 p.m., Monday through Friday) and the price per copy is fifty (50) cents per page.
Ms. Warfield appeals the Commission's partial denial of her open records request.
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. Wharton's letter to the Commission. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Edward E. Dove, by letter dated September 15, 1999, on behalf of the Commission, provided this office with a response to the issues raised in the letter of appeal. In his response, Mr. Dove, in relevant part, stated:
On or about August 4, 1997, Ms. Warfield filed a charge with the Human Rights Commission alleging disparate treatment based on race. The Commission accepted the charge and began an investigation. As of the date of this letter, there has not been a final determination of the charge.
. . .
When a charge is filed with the Commission, an investigation is commenced. The investigator collects information, interviews witnesses and makes a final recommendation to the Executive Director. The Executive Director has the final say in the determination of the charge. In Ms. Warfield's case, there has been no determination of the charge. All records withheld by the Commission are exempt because there has been no final action by the Executive Director, the final decision maker.
Moreover, preliminary records such as internal memorandum, witness statements and investigative plan are exempt under the provisions of KRS 61.878(1)(i) and (j) unless they are incorporated into the final action of the agency. The withheld documents certainly fall within the scope of the exemption for disclosure.
We are asked to determine whether the Commission's partial denial was consistent with the Open Records Act. For the 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.
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.
As Mr. Dove noted in his response, 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. 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.
Mr. Dove has advised that no final determination has yet been made by the Executive Director in Ms. Warfield's case. Until final action is taken by the Executive Director, the documents withheld by the Commission maintain their internal, preliminary character. Accordingly, we conclude the Commission properly withheld these records under authority of KRS 61.878(1)(i) and (j).
Because KRS 61.878(1)(i) and (j) authorize the nondisclosure of the requested documents, we will not consider other exceptions cited by the Commission for nondisclosure.
We note, however, that the Commission states that its charge per copy is fifty cents per page. This office has held that 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. Unless the Commission can 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), fifty cents per page is an excessive copying fee and should be recalculated 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.