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 Office of the Attorney General, Consumer Protection Division's (Consumer Protection) partial denial of Matthew Lee's request, on behalf of Inner City Press/Community on the Move (ICP), for certain records relating to the Attorney General's recent settlement with Household International, etc. and the agency's denial of ICP's request for waiver of copying fees violated the Open Records Act. For the reasons that follow, we conclude that Consumer Protection's denial of ICP's request to waive copying fees did not violate the Open Records Act. Because of this conclusion, and because he wishes to access by receipt of copies through the mail the records broadly identified in his request, Mr. Lee must resubmit his request and identify with precision those records he would like copies of in order to trigger the agency's duty to mail copies of the records and to ensure he does not receive and incur expenses for copies of records he does not want.
On January 10, 2003, Mr. Lee faxed a five-page narrative request to the Consumer Protection Division. In his letter, Mr. Lee requested, in relevant part, copies of the following records:
On behalf of the Inner City Press/Community on the Move and its members, and of the Fair Finance Watch (collectively, "ICP"), this is a formal request, including under your state's freedom of information statute, (1) for records related to your Office's recent Settlement with Household International, Inc. (along with its affiliates, "Household"), and regarding two of Household's peers, CitiFinancial and AIG's American General, and (2) for action(s) by your Office on continuing predatory lending and insurance in connection therewith. ICP is requesting a fee waiver, and that the responsive records be provided as they are identified, and as quickly as possible.
By letter dated February 10, 2003, Harold J. Turner, Assistant Attorney General, Consumer Protection Division, responded to Mr. Lee's request, advising, in part:
. . . After listening to the voice mail messages you left for me and reviewing our files, we are now providing the attached documents relating to Commonwealth v. Household International, Civil Action No. 02-CI-09526 including a copy of the Complaint, a copy of the Agreed Judgment, a copy of the press release issued by the Kentucky Attorney General and a copy of the term sheet agreed to by our Attorney General and Household International.
Many of the documents contained in your request are not in the possession of this office. If such records are in the possession of another agency, your request must be directed to the custodian of those records at that agency pursuant to KRS 61.872. Some of the records requested are exempt from disclosure pursuant to KRS 61.878, including records that were developed in our capacity as a law enforcement agency that were compiled in the process of detecting and investigating statutory or regulatory violations, KRS 61.878(1)(h); preliminary drafts, notes, correspondence, other than to give notice of final agency action, KRS 61.878(1)(i); preliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated or recommended, KRS 61.878(1)(j) .
Kentucky's Open Records Act does entitle you to inspect consumer complaints filed with this office. Since your request seeks all complaints related to Household, CitiGroup, Associates First Capitol, American General Finance, and American International Group it will take our staff some time to compile copies of such a voluminous request. To locate, review and copy all these complaint files would require our limited support and legal staff to spend considerable time responding to your request. This must be done incrementally to avoid the burden of meeting our primary objectives with the limited resources available to us. I understand from the message you left for me that this process is agreeable to you. The consumer complaint documents requested will require examination prior to release for the purpose of redacting personal private and/or financial information pursuant to KRS 61.878(1)(a).
?
This office does not impose a copy and/or handling fee for the first 50 pages of information requested. Your request will well exceed the 50 page limit. The cost for the pages submitted to you in access of 50 pages is $ .10 per page for a total of 17 pages. Please tender your check payable to the Treasurer Commonwealth of Kentucky in the amount of $ 1.70.
After the receipt of the agency's response, Mr. Lee initiated the instant appeal, appealing the Attorney General's partial denial of access to records responsive to his request and the denial of his request for a fee waiver.
Addressing the denial of the request for a fee waiver, Mr. Lee argued, in part, that similar such waivers had been granted to ICP by both Federal Trade Commission and numerous state agencies, including various State Attorney General's Offices. Mr. Lee further noted that other states' Attorney General's Offices have provided "certain inter- and intra-agency communications, and with certain of their communications with Household (which they've deemed not covered by the identical confidentiality provisions of their Consent Judgments see infra), and with memos from the investigation of Household".
After receipt of Notification of the appeal and a copy of the letter of appeal, Mr. Turner, on behalf of the Consumer Protection Division, provided this office with a response to the issues raised in the appeal. In his response, he explained:
Appellant's Open Records Request does not contain a specific list of documents requested under the Act, rather the requests appear throughout the narrative and commentary critical of the Attorney General's settlement with Household International. Exhibit 1. In order to facilitate discussion and review of the request and appeal, appellee has attempted to list the documents requested as gleaned from the body of appellant's "request" and the action taken and status of the agency's response to each "request" at the end of this response on page 4.
In his response, Mr. Turner indicated that Mr. Lee had been provided with a copy of the Agreed Judgment, which defined "covered transactions" and set forth those transactions that would be subject to potential restitution under the terms of the settlement and the scope of Household products considered and acted upon. Mr. Turner further advised that Mr. Lee was also provided with a copy of the "Term Sheet" containing settlement terms agreed upon prior to final settlement, the complaint, and press release announcing the settlement.
Responding to Mr. Lee's request for all consumer complaints regarding Household Finance, Citigroups' CitiFinancial and Associates First Capitol Corporation and its affiliates AIG (American International Group), Mr. Turner advised:
. . . The total number of consumer complaint files requested is about 194 complaint files. Each complaint file must be reviewed individually to redact personal and/or private information contained in the complaint file. The complaint files requested are located in two separate offices requiring coordination to respond to the document request. The total number of pages subject to this request has not yet been determined, however it is expected to be a minimum of between 1000 and 5000 pages. The documents would include all complaints, correspondence and exhibits contained in each file. The burden of producing such a large volume of documents was readily apparent. Consequently, the agency telephoned appellant to advise that it would take some time to produce all the documents and to ascertain whether appellant indeed sought all these documents. Appellant indicated he did want all the documents and attachments but agreed that the documents could be provided incrementally. Upon receipt of fees and costs already expended, these documents will be released to appellant. Pursuant to KRS 61.872(3) the custodian of records shall mail requested copies upon receipt of all fees and charges. The fees and charges for records tendered tendered to appellant has not been tendered to this agency.
As noted above, we are asked to determine whether the actions of Consumer Protection in partially denying his requests and in denying his request for a waiver of copying fees violated the Open Records Act. For the reasons that follow, we conclude that Consumer Protection's denial of ICP's request to waive copying fees did not violate the Open Records Act. Because of this conclusion, Mr. Lee must resubmit his request and identify with precision those records he would like copies of to ensure he does not receive and incur expenses for copies of records he does not want.
As can be seen by Consumer Protection's responses, Mr. Lee has been provided with some of the records he requested and will be provided with other requested records upon payment of copying fees and charges. Access to other records was denied under authority of certain exemptions and privileges set forth in KRS 61.878(1)(h), (i), and (j) and the attorney-client and attorney work product privileges.
The pivotal issue in this appeal is whether Consumer Protection's denial of Mr. Lee's request for a waiver of the copying fee violated the Open Records Act. In 00-ORD-238, we concluded that the Cabinet for Health Services did not violate the Open Records Act in imposing a reasonable copying fee and denying the Better Business Bureau, Inc.'s request for a waiver of the copying fee. At page 2 of that decision, we stated:
KRS 61.874(3) authorizes public agencies to "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." See also, KRS 61.874(1) ("When copies are requested, the custodian may require a written request and advance payment of the prescribed fee, including postage where appropriate"); 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" ). These statutes contain no provision for the waiver of such fees for any party. See 94-ORD-90 (no waiver of reproduction charges for media representative); 99-ORD-30 (no waiver of reproduction charges for inmates). "Simply stated, all persons have the same standing to inspect and receive copies of public records, and are subject to the same obligation for receipt thereof." 94-ORD-90, p. 3; OAG 79-546; OAG 79-582; OAG 80-641; OAG 82-394; OAG 89-86; OAG 91-129; 92-ORD-1136. Accordingly, we find that it is entirely proper for the Cabinet for Health Services to require prepayment of a reasonable copying charge that does not exceed the actual cost of duplication, not including staff costs, and to enforce a standard policy relative to assessment of those charges. 1 See also, 98-ORD-95; 99-ORD-179. The Better Business Bureau is not entitled to a waiver of the standard copying charge.
We find that this office's decision in 00-ORD-238 is dispositive of this issue and conclude that Consumer Protection did not violate the Open Records Act in denying the request for a waiver of copying fees and charges.
Moreover, since Mr. Lee has directed that copies of the requested records be sent to him by mail, he is required to precisely describe the records he seeks. KRS 61.872(3) establishes guidelines for records access under the Open Records Act. That statute provides:
(3) A person may inspect the public records:
The Open Records Act contemplates records access by one of two means: On site inspection during the regular office hours of the agency, in suitable facilities provided by the agency, or receipt of the records from the agency through the mail. Thus, a requester who both lives and works in the same county where the public records are located may be required to inspect the records prior to receiving copies. A requester whose residence or principal place of business is outside the county where the public records are located may demand that the agency provide him with copies of records, without inspecting those records, if he precisely describes the records and they are readily available within the agency. See, e.g., 95-ORD-52; 96-ORD-186.
Mr. Lee's mailing address indicates his principal place of business is in Bronx, New York, thus he satisfies the "outside the county" requirement of KRS 61.872(3)(b). A second requirement of the statute places a burden on the requester who wishes to access public records through the mail to "precisely describe" the records he seeks.
An "outside the county" requester that elects to access public records through the mail rather than to make an on-site inspection bears a greater burden in describing the records he is asking the agency to locate, copy, and mail to him. Accordingly, Mr. Lee, in resubmitting his request to Consumer Protection, should precisely describe the records that he is seeking in order that the agency can identify and locate those records and advise what the copying fees will be.
Bearing in mind that the agency has the burden of proof in sustaining its action 2, should the Consumer Protection Division deny access to all or a part of any of the precisely described records requested by Mr. Lee on the basis of an exemption or privilege under KRS 61.878(1) , it should explain how the cited exemption or privilege invoked applies to the record withheld and articulate the basis for denial in terms of the requirements of that exception or privilege. KRS 61.880(1). See discussion at pages four through seven of 03-ORD-042, copy enclosed.
In response to Mr. Lee's argument that other states' Attorney General's Offices waived copying fees and provided certain copies of otherwise exempt records, the actions of other jurisdictions pursuant to their laws and practices are not controlling on Kentucky public agencies and responses under the Kentucky Open Records Act.
As noted in Consumer Protection's response to the letter of appeal, the parties have been able to work together regarding copies of certain records, such as the request for copies of consumer complaints. The parties should continue to cooperate to resolve any differences or misunderstandings related to records sought by Mr. Lee.
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 footnote to 94-ORD-90, the Attorney General recognized that "a public agency may, of course, elect to waive the copying charge." 94-ORD-90, note 1. Citing OAG 81-300, we noted that "as long as full access is provided and the records are protected from damage and disorganization, there is no statutory prohibition against the agency waiving a fee . . . ." OAG 81-300, p. 2.
2 KRS 61.880(2)(c).