Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Marrowbone Volunteer Fire Department subverted the intent of the Open Records Act, short of denial of inspection, by failing to afford Pamela Diamond timely access to the records identified in her open records requests and by imposing excessive fees for copies of those records. For the reasons that follow, we find that although the department agreed to provide Ms. Diamond with copies of the records she requested, its failure to do so in a timely fashion and for a reasonable copying fee constitutes a subversion of the intent of the Act.
The events leading up to this appeal are summarized below:
12/22/02 Ms. Diamond requests minutes of the fire department's board meetings from September 1, 2002, to December 22, 2002.
12/30/02 Ms. Diamond requests the minutes of the board's December 29, 2002, meeting and her "training hours and . . . the reason for [her] dismissal from the [department]."
01/08/03 President Robert Adkins responds to Ms. Diamond's December 22 and December 30 requests by notifying her that the department had compiled a total of 32 records which would be released to her upon prepayment of an $ 11.00 copying fee (32 pages at 25 cents per page).
01/30/03 Ms. Diamond requests the cancelled checks that support expenditures reflected in the December financial report; in addition, she requests the financial report for September 2002 and financial reports for the department's bingo operations, if maintained separately, for September, October, and November, 2002, and an accounting for profits derived from the wrestling matches and haunted house held at the department.
( ) In an undated response, President Adkins notifies Ms. Diamond that the department has "changed [its] policies by the KRS on the open records law . . . [and] has set a date and time that [the requested] records can be reviewed [and copied] [of] February 12, 2003 between the hours of 1:00 pm and 2:00 pm."
02/06/03 Ms. Diamond resubmits her request, and urges the department to provide her with a reasonable amount of time within which to inspect the records or to provide her with copies.
( ) In an undated, unsigned response, the department mails Ms. Diamond the records identified in her request at a total cost of $ 13.07 (30 copies at 25 cents per page plus $ 5.57 postage fees for certified/return receipt mailing) .
Shortly after she received the department's final undated response, Ms. Diamond initiated this appeal challenging "the excessive amounts . . . charged for information, [and] the length of time" being taken.
In supplemental correspondence directed to this office following commencement of Ms. Diamond's appeal, President Adkins responded to the allegations leveled against the department. He advised:
Regarding the length of time, we are aware of the time limits of the Open Records laws and have tried our best to follow them. We have always tried to respond within three days by telling her that the information was either available or not available and in those incidents where we have told her that it was available have notified her of the costs of copying and mailing these to her. As I explained above, we are a small volunteer fire department and do not have any office personnel. All of us have other jobs and lives and we try to take care of the fire department business in our spare time. The two weeks that Ms. Diamond complains of does not accurately reflect what has happened. Once we receive her request, we do respond within three days as the law requires by telling her the documents exist and what the charges are. By the time that she mails us the money for the charges, and we then put the information in the mail within three days, it probably does take nearly two weeks for her to receive the information from her first request. 1 Because she had complained about the length of time from her initial request until the time she received the information, we tried an alternate means of providing her with the information. We notified her that I would wait for her at the fire station on February 12, 2003 between the hours of 1:00 p.m., and 2:00 p.m., and that she could review the records and make any copies needed at that time. When she notified me that she would be unable to be present at the designated time, I went ahead and made copies of the information she requested and mailed it to her.
It is obvious that Ms. Diamond and the fire department have differences. Because of the repeated requests and because of the complaints she has lodged, we feel it is important that we document that records have been sent and received and therefore we are mailing the records to her by certified mail and requesting a receipt. We realize this is an additional cost but we feel that it is necessary to protect the fire department from unfair claims. The extra expense of mailing was one reason that we offered to meet her at the station but understood when she told us that she could not come at that time. She knows that we do not keep regular hours at the station 2 and if she would rather receive the copies by mail we are happy to do that even though the Open Records law seems to allow us to require she view the records in person because she does not live or work out of the county.
Her next complaint is that she is being charged $ .25 per copy for records. Again we are a small department of volunteer firefighters. We do not have the funds to hire accountants to calculate the actual costs of responding to her requests. We do have a copier and we must pay to maintain it, put paper and other supplies in it, and furnish the electricity to run the copier. 3 Also the copier does lose value every time it makes a copy. We have no proof that the actual cost is $ .25 when you take into consideration all of these factors. We simply estimated the $ .25 after trying to roughly figure what those costs were. If there is a standard rate that has been approved for charges in Open Records requests, we would be more than happy to comply with those charges. We understand that we are not allowed to charge for labor in copying these documents and have not factored that in. We simply felt that $ .25 was not an unreasonable amount considering all of the factors and felt that would be an appropriate amount to charge for copies.
In closing, President Adkins asked that in evaluating the Marrowbone Volunteer Fire Department's disposition of Ms. Diamond's requests, this office bear in mind that the department is "trying to respond to a law that obviously was not written with our situation in mind."
Respectfully, we must apply the same standard of review to all agencies regardless of their unique circumstances. While it is apparent that the department is aware of its obligations under the Open Records Act, and has made more than a passing attempt to satisfy the law's requirements, we find that its failure to strictly comply with KRS 61.880(1) and to afford Ms. Diamond timely access to the records she requests, and its imposition of excessive copying charges, constitutes a subversion of the intent of the Act.
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 in writing of its decision relative to disclosure and if that decision is to honor the request, providing the requester with the records identified in his or her request on or before the three day period of limitation has expired. 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 other 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 pages 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. 4
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.
Whether there was sufficient cooperation among the parties to this appeal is an open question. Clearly, however, there was a failure on the part of the Marrowbone Volunteer Fire Department to conform its conduct to the strict legal requirements of the Open Records Act.
Ms. Diamond submitted requests on December 22 and December 30, 2002. While there may have been oral communication between the parties relative to these requests, the Department did not issue a written response until January 8, 2003. This same pattern of conduct appears to have been repeated 5 following submission of Ms. Diamond's third request. In each instance, the department belatedly complied with KRS 61.880(1) by notifying Ms. Diamond that the requested records would be released to her upon submission of copying and postage fees. 6 We urge the department to review KRS 61.880(1) to insure full compliance with the requirement of written agency response within three business days of receipt of a request and timely access to public records.
Turning to the issue of copying fees, we find that the 25 cent copying fee that the department has adopted is excessive. KRS 61.874(3) authorizes public agencies to "prescribe a reasonable fee for making copies of nonexempt public records . . . 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." The agency may require advance payment of the prescribed copying charge, including postage. KRS 61.874(1) ("[T]he custodian may require a written request and advance payment of the prescribed fee"); KRS 61.872(3)(b) ("If the person requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing" ); see also, 94-ORD-90 and 95-ORD-105.
It is not proper for the department, or any other public agency, to impose a copying charge which exceeds its actual costs. At page 3 of OAG 82-396, this office opined:
Since the cost of staff time required is excluded from the fee which may be charged for copies of public records, the fee charged for copies should be based on the actual expense to the agency, such as the 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 10 cents per page is a reasonable copying charge under the Open Records Act. For this reason, the Attorney General has consistently held that unless an agency can substantiate that its actual cost for making copies is greater than 10 cents per page, any copying charge which exceeds this amount is presumptively excessive. OAG 80-421; OAG 82-396; OAG 84-91; OAG 87-80; OAG 89-9; OAG 91-193; OAG 91-200; 92-ORD-1491; 94-ORD-77. In OAG 90-50, this office specifically stated that a 25 cent copying charge was excessive when that fee was not based upon the agency's actual costs, exclusive of personnel costs. Unless the department can rebut the presumption by demonstrating that its actual cost for reproducing records is greater than 10 cents per page, based on the cost of media and mechanical processing as defined in KRS 61.870(7) and (8), 7 it must recalculate its copying fee to conform to the requirements of KRS 61.874.
Although Ms. Diamond believes that some materials and paper are donated to the department, she is unable to provide any proof to support this belief. Moreover, we have no way of knowing if the department has been, or will be, provided with a steady supply of donated paper. Under these circumstances, and given the fact that the department incurs some quantifiable costs in reproducing public records, we find that it may properly charge 10 cents per page for copies of records provided under the Open Records Act. In support, we note that in 99-ORD-40 this office observed:
The Finance and Administration Cabinet, pursuant to KRS 61.876(3), has promulgated an administrative regulation, 200 KAR 1:020, which establishes the general rules to be followed by all state administrative agencies in affording public access to their public records. 200 KAR 1:020, Section 3(1), in relevant part, provides:
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.
99-ORD-40, pp. 4, 5. In closing, we recognized:
the practical difficulties that agencies face in trying to estimate the cost of photocopying and the corresponding difficulties this agency would have in determining whether the estimate reflects the agencies' actual cost. We have little doubt that the floodgates would be opened to open records appeals premised on the reasonableness of the ten cent copying charge. If a standard, other than ten cents per page, is to be adopted, it must be done by the courts or the legislature.
99-ORD-40, p. 6.
We do not, however, believe that it is appropriate for the department to compel the requester to pay the additional cost of mailing the records by certified/return-receipt mail. The Open Records Act does not require the agency to use this method of mailing, and the agency does so at its own election. KRS 61.872(3)(b) authorizes the agency to recover "the cost of mailing, " and KRS 61.874(1) authorizes the agency to recover "postage where appropriate." We find no support in the Act for the proposition that the cost of access to public records by mail can properly be driven up by the use of certified mail and the consequent imposition of additional postage costs, however valid the agency's reasons may be for electing to use certified mail. Here, Ms. Diamond substantiated through the postmaster that the additional cost to her of the department's use of certified mail was $ 4.08 for one mailing. We find that this additional cost must be absorbed by the Marrowbone Volunteer Fire Department.
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 In a subsequent correspondence, Ms. Diamond argues that the delay was not occasioned by the necessity of obtaining prepayment for copies, but by, in at least one instance, the department's decision to put the question of honoring her request to a vote. In support, she attaches a copy of the minutes of the department's December 29, 2002, meeting which state:
After Pam and Janet left, Robert read a certified letter that he had received from Pam Diamond requesting copies of minutes and financial reports for Oct., Nov. & Dec.
Robert made a motion to go ahead and send Pam the copies that she requested. Membership agreed.
2 In subsequent correspondence, Ms. Diamond questions the severe restrictions placed on her relative to the designated time for inspection and its limited duration given the frequent presence of department employees at the department for training and other purposes.
3 In subsequent correspondence, Ms. Diamond expresses the belief that the paper and some supplies used in copying are donated, and that the 25 cents copying charge is therefore inflated.
4 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. "
5 The department's response was undated and there is no way to ascertain whether it was issued in a timely fashion.
6 Given the department's retreat from its position that Ms. Diamond would be required to conduct on-site inspection of the records for a period of one hour on a designated date, we do not address the propriety of this position except to note that numerous decisions of this office clearly establish that "unreasonable restrictions upon inspection may not be imposed." OAG 89-81, p. 4. This includes unreasonable restrictions on the hours when records may be accessed.
7 (7) "Media" means the physical material in or on which records may be stored or represented, and which may include, but is not limited to paper, microform, disks, diskettes, optical disks, magnetic tapes, and cards; and
(8) "Mechanical processing" means any operation or other procedure which is transacted on a machine, and which may include, but is not limited to a copier, computer, recorder or tape processor, or other automated device.
8 KRS 61.876(1) requires each public agency to adopt rules and regulations that conform to the Open Records Act, including "the fees, to the extent authorized by KRS 61.874 or other statute, charged to copies," and to display those rules and regulations in a prominent location accessible to the public. As noted, KRS 61.876(3) authorizes the Finance and Administrative Cabinet to promulgate uniform rules for all state administrative agencies. The Cabinet has done so at 200 KAR 1:020, which includes the maximum ten cents per page copying charge. These provisions have been construed by the Attorney General to mean that if a public agency has not adopted and posted its own rules and regulations, the Cabinet's rules and regulations are deemed to apply to that agency, and the agency is restricted to charging ten cents per page for copies. OAG 81-269; OAG 84-268; OAG 84-300; OAG 92-30.