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 offices of the Hardin County Judge/Executive, the Hardin County Fiscal Court, and the Hardin County Dog Warden in response to open records requests made by Pamela Rogers.
By letters dated October 6, 1999, Ms. Rogers made substantially identical requests to the Hardin County Judge/Executive, the Clerk of the Hardin County Fiscal Court, and the Hardin County Dog Warden for numerous records pertaining to financial information, expenditures, and other public records of the Hardin County Fiscal Court relative to the providing of animal control services by the county from 1992 to the present.
By letter dated October 8, 1999, Ken M. Howard, Hardin County Attorney, responded to Ms. Rogers' request on behalf of the three agencies. In his response, Mr. Howard requested Ms. Rogers to provide information as to whether the request was for commercial or noncommercial purposes. He also advised her that further action to her open records request would be held in abeyance until she responded to his letter.
On October 21, 1999, by letter, Ms. Rogers advised that her requests were for noncommercial purposes.
On October 29, 1999, Mr. Howard provided Ms. Rogers with copies of the Hardin County Treasurer's Reports for Fiscal Years 1991-92 through 1998-99, which itemized actual expenditures by the Hardin Fiscal Court for animal control services in those years; the Hardin County Treasurer's approved budget for Fiscal Year 1999-2000 for animal control services, and records documenting the appointment of various individuals as dog wardens, assistant dog wardens, and animal control officers. In his cover letter to Ms. Rogers, Mr. Howard explained:
The above financial information is responsive to your open records request number 1, 2, 9, 10 and 11. The Treasurer's reports certify actual expenditures for the year indicated and is broken down by category. Hopefully, the financial information presented in this format is responsive to your request without the necessity of providing photocopies of the back up documents such as invoices, bills, requisitions, purchase orders, etc.
Also enclosed please find the documentation from the Hardin County Fiscal Court appointing various individuals to act in their capacities as dog warden, assistant dog warden and animal control officer which is responsive to your open records request number 3 and 4. Documents responsive to your request contained in paragraphs 5, 6, 7 and 8 will be provided in approximately thirty (30) days from this date. The current Hardin County Dog Warden was seriously injured in an automobile accident while responding to a call to assist as animal on interstate 65 in Hardin County several weeks ago. The Dog Warden is not scheduled to be medically released to return to work until mid-November, 1999. Thus, the Animal Control Department is understaffed and would not be able to conduct the search for the requested documents without interfering with providing animal control services to Hardin County.
I have also enclosed a billing statement for the cost of photocopies which are enclosed. If you have any questions concerning the contents of this letter please do not hesitate to contact me.
In her letter of appeal, Ms. Rogers asks this office to review the actions of the agencies in holding her initial request in abeyance until she disclosed whether her request was for a commercial or noncommercial purpose, in not providing all the records she requested, and whether the charge of 25 cents per copy was excessive.
After receipt of the letter of appeal and as authorized by KRS 61.880(2), Mr. Howard provided this office with a response to the issues raised in the appeal. In his response, Mr. Howard indicated that Hardin County had not denied any aspect of Ms. Rogers' request. He noted that Ms. Rogers, in her initial request, had elected to have copies of the responsive documents forwarded to her as opposed to inspection of the public records. Addressing the complaint that not all records had been provided, Mr. Howard stated:
Ms. Rogers states in her appeal that not all of the records she requested were provided to her. Again, it is important to note that Hardin County has not denied or claimed as exempt any record responsive to her open records request. By cover letter of October 29, 1999, Hardin County provided photocopies of responsive non-exempt records of a financial nature and indicated that the requested activity records would be provided in approximately thirty (30) days due to the hospitalization of the Hardin County Dog Warden. Hardin County submits that providing photocopies of the requested financial information covering a time period from 1991 to the present within eight (8) days and indicating that the documents responsive to the activity of the Hardin County Dog Warden within thirty (30) days due to the Dog Warden's hospitalization provided "timely access" as previously defined by the Office of the Attorney General. 93-ORD-134.
For the reasons that follow, we conclude that the actions of the Hardin County agencies, with the exception of certain procedural deficiencies and the failure to substantiate that its actual costs for reproducing copies of its records was 25 cents per page, were in substantial compliance with the Open Records Act.
KRS 61.874(4)(b) provides:
The public agency from which copies of nonexempt public records are requested for a commercial purpose may require a certified statement from the requestor stating the commercial purpose for which they shall be used, and may require the requestor to enter into a contract with the agency. The contract shall permit use of the public records for the stated commercial purpose for a specified fee.
Although KRS 61.874(4)(b) does not, by its express terms, require a requester to disclose her purpose if it is a noncommercial one, such a requirement is implicit. It cannot be assumed that the omission of a statement of purpose necessarily imports a noncommercial purpose. In 93-ORD-14, we held that an agency may require a generalized statement of the intended use of the public record when such is necessary to aid in the determination of appropriate fees to be assessed should the request involve use of the non-exempt records for a commercial purpose. 1
Accordingly, we conclude that the inquiry as to whether Ms. Rogers' request was for a commercial or noncommercial purpose was proper. Moreover, we hold that the agencies' response, that it would hold in abeyance further response until the requested information was provided, was also proper. Since Ms. Rogers requested copies of the requested records, as opposed to inspection, the agencies needed to know whether the cost would be assessed under a commercial or noncommercial standard.
KRS 61.880 sets forth the procedural guidelines for an agency response to an open records request. Subsection (1) of that provision requires that a public agency, upon receipt of a request for records under the Act, respond in writing to the requesting party within three working days of the receipt of the request, and indicate whether the request will be granted.
In general, a public agency cannot postpone or delay this statutory deadline. The burden on the agency to respond in three working days is, not infrequently, an onerous one. Nevertheless, the only exceptions to this general rule are found at KRS 61.872(4) and (5). Unless the person to whom the request is directed does not have custody and control of the records, or the records are in active use, in storage, or are not available, the agency is required to notify the requester of its decision within three working days, and to afford the requester timely access to the requested records. 93-ORD-134. If, on the other hand, the records are in use, in storage, or are otherwise unavailable, the agency must "immediately so notify" the requester, and designate a place, time, and date for inspection "not to exceed" three days from receipt of the request, "unless a detailed explanation of the cause is given for further delay and the place, time and earliest date on which the public record will be available for inspection. " KRS 61.872(5).
On October 21, 1999, Ms. Rogers advised that her requests were for noncommercial purposes. On October 29, 1999, she was provided with a written response indicating that many of the records she requested were being provided to her. The response was procedurally deficient in that it was not provided to Ms. Rogers within three business days. Nevertheless, this violation was mitigated by the fact that she was provided a written response, with many of the records she requested, within five business days.
However, Hardin County's response was deficient to the extent that it failed to assert a legally recognized basis for postponing access to the remaining records identified in Ms. Rogers' request. The law presumes the appointment of a records custodian "who is responsible for the maintenance, care and keeping of public records . . . ." KRS 61.870(5), as well as the timely processing of open records requests, and in his absence, the appointment of an alternate to fulfill his duties. The temporary absence of the dog warden does not, in our view, make the agency's records unavailable within the meaning of KRS 61.872(5).
In his response, Mr. Howard explained that the remaining records would be made available, but such would be delayed for approximately thirty days. He explained that the reason for the delay was due to the dog warden being seriously injured in an automobile accident and was not scheduled to return to work until mid-November. This, coupled with the lack of sufficient staff to search for the records and, at the same time, carry on the essential animal control services to the county necessitated a delay in the production of the remaining records.
We conclude that Hardin County's explanation does not sufficiently justify a delay of thirty days in providing the remaining records. This office has previously held that the press of business or the absence of the official custodian does not justify an untimely delay in providing public records. 96-ORD-238. A public agency cannot ignore, delay, or postpone its statutory requirements under the Open Records Act. If the records custodian goes on vacation, or is unable to attend to his duties because of illness, or an accident, the agency is obligated to designate another person to review and handle open records requests in the absence of the regular custodian of the records. 96-ORD-54.
Accordingly, we conclude the postponed availability of the remaining records based on the dog warden's hospitalization and the press of business was inconsistent with the requirements of Open Records Act to provide timely access to public records. This procedural deficiency was mitigated to the extent that Hardin County's response did indicate that the records would be provided and set forth a specific timeframe as to when they would be made available.
Finally, we address the issue as to whether the 25 cents per page fee charged for copies of records was reasonable. Addressing this issue, Mr. Howard stated that the Hardin Circuit Court, in a case styled Kaye Metcalf v. Faye Valentine , Civil Action No. 92-CI-828 and Lisa Kaye Smith (now Kent) v. David Fackler, et al. , had established that 25 cents per page was a reasonable fee.
For the reasons that follow, we conclude that to the extent that the 25 cents per page copying fee which Hardin County imposed exceeds its actual costs the fee is excessive.
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.
In 99-ORD-40, this office recognized that a ten cents per page fee for copies of public records was the threshold standard fee. In that decision, we stated:
In our view, the courts, state government, and the many decisions of this office have recognized and established a bright line standard of a ten cents per page fee for copies of public records as a reasonable fee under the Open Records Act. This threshold standard fee establishes for public agencies a court approved reasonable fee for copies of public records and dispenses with the necessity of requiring the agencies to attempt to estimate costs involved in photocopying records. This would particularly be the case in agencies, such as FCPS, which have a large number of copiers in many different buildings.
The fee charge must be based upon the agency's actual cost for reproducing records per page, based on the cost of media and mechanical processing as defined in KRS 61.870(7) and (8), not including staff costs. In the Hardin Circuit Court case, cited by Mr. Howard as authority establishing 25 cents per copy to be a reasonable fee, the trial court had held a hearing to determine the reasonableness of the hospital's charges for copies of medical records. After hearing testimony and the submission of evidence, the trial court allowed a charge of $ .27669 to be assessed per page as a reasonable fee.
In the instant case, no evidence has been submitted to substantiate that Hardin County's actual costs for reproducing copies of its public records is 25 cents per page. Thus, the circuit court case cited is distinguishable on its facts and inapplicable to the issue in this case.
It is the conclusion of this office that Hardin County has failed to establish that its actual cost of reproducing records for copies of public records is 25 cents per copy. Thus, we conclude that 25 cents per page charge is an excessive copying fee. Unless Hardin County can demonstrate that its actual cost for reproducing records, excluding staff costs, is greater than ten cents per page, it must recalculate its copying fee to conform to the requirements of KRS 61.874.
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.
Footnotes
Footnotes
1 Although that decision involved the application of KRS 61.970(1) of the Public Access to Governmental Databases Act, language similar to that contained in that statute was incorporated into KRS 61.874, in amendments to the Open Records Act in 1994, and the reasoning applied in 93-ORD-14 is apropos here.