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 actions of the Estill County Jail in response to the open records requests of H. B. Elkins, Executive Editor, Citizen Voice & Times, for certain of the Jail's records violated the Open Records Act. For the reasons that follow, we conclude that the actions of the agency violated the Act.
By letter dated October 4, 2002, Mr. Elkins requested copies of the following records:
Any incident reports the Estill County [Jail] may have on file for the jail for the period Jan. 1, 1998-present, including but not limited to assaults, fights, escapes, sexual contact, drugs, weapons or other contraband, or misconduct by jail employee or inmates.
Page 3 of the Department of Corrections Inspection Report dated May 24, 2001, states that a written report shall be made of all extraordinary or unusual occurrences at the jail within 48 hours of the occurrence, and these reports shall be placed in the jail records. These are the written reports we wish to inspect for the time frame Jan. 1, 1998 to present.
By letter dated October 9, 2002, Wayne Abney, Estill County Jailer, advised Mr. Elkins:
In regards to your letter requesting records from the jail. I will more than happy to provide all written reports for your inspection. However, this will be a very time-consuming task since you are requesting records that date back to 1998. Your request will be honored and will be sent to you within 30 days of this letter. Also, at the cost to your newspaper there will be a minimal charge of 15 cents per copy and payment of manpower hours utilized. Billing will be sent along with your requested records.
In his letter of appeal, dated October 17, 2002, Mr. Elkins indicates that after receipt of Mr. Elkins' response, he sent a revised request narrowing the dates of records sought and as of that date, he had received neither a response to his revised request nor the records in question.
We are asked to determine whether the actions of the Estill County Jail violated the Open Records Act. For the reasons that follow, we find that the actions of the Jail violated the Act.
We address first the issue as to whether the 15 cents per page fee charged for copies of records was 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, 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.
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 [Fayette County Public Schools], 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 instant case, no evidence has been submitted to substantiate that the Jail's actual costs for reproducing copies of its public records, not including staff costs, is 15 cents per page. Thus, we conclude that 15 cents per page charge is an excessive copying fee. Unless the Jail 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 .
Mr. Elkins also asserts that the Jail violated the Open Records Act by failing to afford him timely access to the records identified in his request. We agree.
KRS 61.880 sets forth the legal obligations of a public agency upon receipt of an open records request. Subsection (1) of that provision requires a public agency to respond to the requesting party within three working days of receipt of the request, notifying the party whether it will comply with his request. These requirements, the Attorney General has often noted, "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5. Discharge of these duties is required by law, and is as much a legal obligation of a public agency as the provision of services to the public.
In a seminal decision addressing these duties, the Attorney General observed:
Nothing in the statute permits an agency to postpone or delay this statutory deadline . . . 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.
93-ORD-134, p. 3. In 93-ORD-134, the Attorney General concluded that the agency failed to provide timely access to the records identified in the request. We reach the same conclusion in the appeal before us.
At page 11 and 12 of 93-ORD-134, the Attorney General reasoned:
"Timely access" to public records has been defined as "any time less than three days from agency receipt of the request." OAG 84-300, at p. 3. In OAG 83-23, at page 4, we expressly held that an agency had not acted in accordance with KRS 61.870 to 61.884 "in its failure to allow inspection or make a proper response to [a] request to inspect records after three months from the date of [the] initial request."
The Open Records Act does not prescribe a reasonable time within which access must be afforded to public records. . . . KRS 61.872(5) normally requires an agency to notify the requester and designate an inspection date not to exceed three days from agency receipt of the request. 1
In an early opinion, this Office recognized:
OAG 77-151, at p. 3. . . . We believe that a determination of what is a "reasonable time" for inspection turns on the particular facts presented, i.e., the breadth of the request and the number of documents it encompasses, as well as the difficulty of accessing and retrieving those records. Public agencies must work, in a spirit of cooperation, with individuals who request to inspect their records to insure that those individuals are afforded timely access to the records they wish to inspect.
Mr. Elkins indicates he submitted his revised request on October 10, 2000 and that of the date of his letter of appeal, October 17, 2002, the Jail had failed to respond to his revised request. This was a procedural violation of KRS 61.880.
In addition, we conclude that the Jail's initial response did not conform to the specific requirements set forth at KRS 61.872(5). Although the Jail indicated that the records would be available for inspection some thirty days later, its response did not contain a detailed explanation of the cause of the delay. An agency response that it cannot immediately comply with a request because it "will be a very time-consuming task since you are requesting records that date back to 1998" is not sufficiently detailed under the Open Records Act. 96-ORD-238, p. 3. The response sets forth neither the volume of records involved nor explains, in detail, the problems associated with retrieving the records implicated by the request that would support a 30 day delay in providing the requested records. The duty to respond to an open records request, and to afford the requester timely access to the records identified in this request, is as much a public servant's legal duty as any other essential function. Accordingly, if it has not already made the requested records available, the Jail should do so or provide Mr. Elkins with a detailed explanation as to why they are not readily available and then indicate a precise date and time they will be made available.
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.
H. B. ElkinsP.O. Box 660108 Court StreetIrvine, KY 40336
Wayne Abney, JailerEstill County Jail 103 Court StreetIrvine, KY 40336
Heather CombsEstill County AttorneyEstill County Courthouse130 Main StreetIrvine, KY 40336
Footnotes
Footnotes
1 If the public agency cannot permit inspection on or before the third business day because the requested records are "in active use, in storage or not otherwise available," KRS 61.872(5) requires the agency to provide "a detailed explanation of the cause . . . [of the] delay," and to state the "place, time, and earliest date on which the public record will be available for inspection. "
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