Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the responses of the Kenton County Fiscal Court to a series of open records requests submitted by Terry Whittaker were consistent with the requirements of the Open Records Act. For the reasons that follow, we conclude that the responses of the Fiscal Court were consistent in part and inconsistent in part with the Act.
On October 15, 1999, Ms. Whittaker submitted an open records request to the Kenton County Fiscal Court for copies of various agency records. The Fiscal Court responded to this request on October 28, 1999.
KRS 61.880 sets forth the duties and responsibilities of a public agency relative to a request received under the Open Records Act. 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. The Fiscal Court's response 13 days subsequent to the request constituted a procedural violation of KRS 61.880(1).
Nothing in the statute permits an agency to postpone or delay this statutory deadline while the agency attempts to locate the requested records or to formulate its response. The burden on the public 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 provide the requester with timely access to the requested records. The Fiscal Court offered no justification for its failure to timely respond to Ms. Whittaker's October 15, 1999 request.
Ms. Whittaker also appeals from the Fiscal Court's December 13, 1999 response to her open records requests of December 10 and 13, 1999. In this appeal, she challenges the $ 15 copying fee the Fiscal Court charged her for a black and white copy of a map measuring approximately 36" x 42," as excessive. She argues that copies of the map could be produced for much less by a commercial copying company or by other public agencies.
In 92-ORD-1491, we concluded that the Mason County Fiscal Court's reproduction charge of $ 10.00 for copies of full size maps was excessive. In reaching that conclusion, we held that unless the Fiscal Court could demonstrate that its actual cost for reproducing the maps was $ 10.00 per map, it must recalculate the fee to conform to the statutory requirements set forth in KRS 61.874.
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.
Because it has the burden of proof to sustain its actions, it is incumbent on a public agency to substantiate that its copying fee reflects its actual costs. 96-ORD-273. In the instant appeal, the Kenton County Fiscal Court has provided no substantiation that its actual cost of reproducing the requested map was $ 15.00. To the extent that the fee was not based on the agency's actual cost of making the copy of the map, its fee was excessive. The Fiscal Court is therefore directed to recalculate its costs to reflect its actual cost, based on the factors set forth in KRS 61.874(3), and charge Ms. Whittaker accordingly.
Ms. Whittaker further argues that the Fiscal Court violated the Open Records Act by failing to post a copy of its rules and regulations pertaining to open records and open meetings in a public place at the administrative offices. In her letter of appeal, she asserts that the Fiscal Court was unable to produce a copy or a posting of the rules and regulations at her visits to the administrative offices on December 10 and December 13, 1999. She acknowledges that she was subsequently provided with a copy of the rules and regulations by the Kenton County Attorney on December 16, 1999.
In his December 13, 1999 response to Ms. Whittaker's December 10, 1999 request to be directed to the posting of and then to later review and/or copy the rules and regulations, Brandon N. Voelker, Assistant Kenton County Attorney, advised that the rule and regulations were posted in the lobby of the Kenton County Fiscal Court's offices in Covington.
In OAG 78-340, this office held that KRS 61.876 requires that each public agency shall adopt rules and regulations pertaining to public records and failure to do so constitutes a technical violation of the Open Records Act. KRS 61.876(2) requires each agency to display a copy of its rules and regulations pertaining to public records in a prominent location accessible to the public. These rules and regulations are also required to set forth the name and address of the official custodian of the agency's records.
This office has recognized, on more than one occasion, that the spirit of the Open Records Act mandates the broadest dissemination of an agency's rules and regulations. 99-ORD-69. The Kenton County Fiscal Court has advised this office that a copy of the current "Kenton County Public Records Access Policy December 1999" is now posted in an area accessible to the public in the hallway of the Fiscal Court Administrative Offices, Room 205-207, Second Floor of the Kenton County Building at 303 Court Street, Covington, Kentucky 41011.
Next, Ms. Whittaker challenges the Fiscal Court's policy that it will only fulfill open records requests by sending copies through the mail, rather than allowing a requester to inspect the records first and then decide on which records she wants copies.
In his December 13, 1999 response, Mr. Voelker, citing KRS 61.872(6), supported this policy by stating that "allowing each person, who submits an open records request, to have access to the Kenton Count Fiscal Court's offices would disrupt the essential functions of the Kenton County Fiscal Court."
In 98-ORD-69, this office held that the public generally has an absolute right to conduct onsite inspections of public records.
In 97-ORD-12, this office rejected a policy of the Cabinet for Public Protection and Regulation that refused to permit a requester to conduct an on-site inspection of agency records. Addressing this issue, we stated:
KRS 61.872(1) provides that "all public records shall be open for inspection by any person , except as otherwise provided by KRS 61.870 to 61.884, and suitable facilities shall be made available by each public agency for the exercise of this right." Subsection (2) of that provision states that " any person shall have the right to inspect public records ." KRS 61.872(3)(a) and (b) make it clear that the Open Records Act contemplates records access by two means: Onsite inspection during the regular office hours of the agency, or receipt of the records from the agency through the mail. Finally, KRS 61.874(1) provides that "upon inspection, the applicant shall have the right to make abstracts of the public records and memoranda thereof...."
(Emphasis in original)
In interpreting these provisions, the Attorney General has consistently recognized that an applicant may properly assert a right to inspect nonexempt public records. 98-ORD-69. In OAG 81-198, the applicant asserted the right "to inspect the ? documents during the regular office hours of the department...." OAG 81-198, p. 4. The Attorney General concluded that the applicant had "not made any demand on [the] agency which is beyond the scope of the Open Records Law." Id.
Thus, we conclude that the policy of the Kenton County Fiscal Court that it would not allow on-site inspection of public records and instead only provide copies of the requested records through the mail constitutes a violation of the Open Records Act. Such a policy denies a requester of her statutory right to an on-site inspection and may subject the requester to payment for unwanted records which she may not have selected had the opportunity for on-site inspection been provided. Ms. Whittaker should be allowed to inspect the requested records first and then make the decision as to which ones she wants copied.
In addition, Ms. Whittaker asked the Fiscal Court to contact her in order that they could arrange a mutually agreeable time for her to inspect the records to ensure that her inspection did not disrupt the essential functions of the agency. A refusal to allow on-site inspection of public records on the grounds it would disrupt the essential functions of the public agency must be sustained by clear and convincing evidence. KRS 61.872(6). The Fiscal Court has not met that burden in this appeal.
Ms. Whittaker also argues that the Fiscal Court has failed to substantiate that its actual costs for reproducing a standard 8 1/2" x 11" page is 10 cents per page. In 99-ORD-40, this office recognized that a ten cents per page fee for copies of public records was the threshold standard reasonable 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 [Fayette County Public Schools], which have a large number of copiers in many different buildings.
Absent further direction from the courts or the legislature, and in light of this long standing recognition by the courts, this office, state government, and other public agencies, that ten cents a page is a reasonable fee for copies of public records, we are reluctant to change this bright line threshold standard. If changes in the law are to be made, they should be made by the legislature and if subtle interpretations are to be made, they should be made by the courts. OAG 80-54. This appeal suggests the need for the General Assembly to address the issue of actual cost, and establish a standard fee, by legislative action.
Accordingly, it is the decision of this office that the Fiscal Court's fee of 10 cents per copy is not excessive and is consistent with the standard of reasonableness as construed by the courts, the Finance and Administration Cabinet, and prior opinions of this office.
In her December 13, 1999 request, Ms. Whittaker requested that she be provided the option, if she so decided, to duplicate the materials at her own expense using her own materials. In response to this request, Mr. Voelker stated:
The records you requested are not to leave the custody of the Kenton County Fiscal Court. Therefore, you will not be able to take them to Kinkos because you believe you can get a better deal. Kinkos is in the business of making copies. The Kenton County Fiscal Court is not.
KRS 61.872(1) provides that no person shall remove original copies of public records from the offices of any public agency without the written permission of the official custodian of the record. KRS 61.876(1) requires each public agency to adopt rules and regulations to protect public records from damage and disorganization. The responsibility for the "maintenance, care and keeping" of the agency's public records is assigned to the official custodian of records. KRS 61.870(5).
It was properly within the discretion of the Fiscal Court and Mr. Voelker, the agency's official custodian of records, to determine whether Ms. Whittaker could remove original records from the offices of the Fiscal Court to be copied or whether she could use her own equipment and materials to copy the records. Accordingly, the agency did not violate the Open Records Act in denying her request.
In 99-ORD-186, we recognized that, although the Open Records Act contained no provision authorizing a public agency to accept a requester's offer to supply his own copying paper to defray the cost of copies, we noted that the Open Records Act contemplated a spirit of cooperation between the parties. In that appeal, the public agency, consistent with this spirit of cooperation, expressed its willingness to accept the requester's offer and reduce the copying fee for reproducing the documents by the value of the materials he provided. However, as noted above, the decision as to whether to make such an accommodation is subject to the discretion of the agency.
Finally, Ms. Whittaker appeals the denial of her request for a copy of the audiotapes of the Kenton County Fiscal Court's meeting of December 7, 1999. In denying this request, Mr. Voelker stated:
The tape that the clerk uses will not be provided. This is a tape that the clerk provides, and she only uses this to help provide accurate minutes of the meetings. These tapes are for the clerk's convenience and she is not required by law to keep a tape of the minutes. The clerk could choose to simply take notes, but instead she chooses to record meetings and then prepare the minutes. I will provide copies of all meetings' minutes, but not the clerk's tape.
In OAG 92-111, this office held that if an agency elects to make a tape recording of its public meetings, and the tape is purchased with agency funds, it must be made available for public inspection. However, in that same opinion, we stated the following in regards to the tapes and whether they are public or private records:
Nor do we mean to suggest that a secretary or clerk who personally purchases a tape and records the meeting on his or her own initiative to assist in the preparation of the minutes, must release the tape for public inspection. Under these circumstances, the tape could not be treated as a public record, but would instead be considered the clerk's personal property. See e.g., OAG 83-194 (holding that a copy of a deposition prepared by a stenographer is not a public record). Our holding is limited to those instances when the agency directs that a tape be made of its public meeting, for whatever purpose, and that tape is purchased with agency funds.
In 93-ORD-105, we concluded that where the county judge/executive had
purchased the tape used to record the meeting with his own money he properly denied the request for public access to that tape. In 92-ORD-1058, we held that, where the tapes used by the city clerk to assist her in preparing the official minutes of the City Council meetings were purchased at her own expense, the tapes did not have to be made available for inspection.
In his response, Mr. Voelker stated that the tape was not prepared at the direction of the Fiscal Court nor was it intended to serve as an official Fiscal Court record. He advised that the clerk provided the tape to assist her in preparing the minutes of the Fiscal Court's meetings. Under these circumstances, we conclude that the Fiscal Court properly denied Ms. Whittaker's request for the audiotapes. Only if the public agency expends its own funds in the purchase of tapes, and directs its employees to record its meetings, are those tapes subject to public inspection. 92-ORD-1058.
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.