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 City of Brownsboro Village violated the Open Records Act in the disposition of Lowry Watkins' September 5, 2003 request for copies of the 2000 and 2001 audit reports. Having received no response to his request, Mr. Watkins initiated this appeal on September 27, 2003, questioning the city's inaction. For the reasons that follow, we make no finding on the issue of the city's compliance with the procedural requirements of the Act, but find that although it may properly require Mr. Watkins to prepay reasonable copying and postage charges as a condition to mailing him copies of these audit reports, it cannot impose a flat charge of ten dollars unless it can substantiate that this charge reflects the actual cost of reproduction, including the costs of the media and any mechanical processing costs incurred, but not including the cost of staff required. KRS 61.874(3).
In a letter directed to this office following commencement of Mr. Watkins' appeal, Mayor Robert L. DeSensi, Jr. notified this office that he had "no knowledge of any written requests for audit reports from Mr. Watkins." Continuing, Mayor DeSensi observed:
The Brownsboro Village City Treasurer, Brian Shanks, informed me that Mr. Watkins had phoned him requesting reports. I instructed Mr. Shanks to contact Mr. Watkins and explain that as in the past there would be a nominal fee for copies and mailing of these documents. Mr. Watkins was informed that the copies of these financials would be mailed after receipt of a check for Ten (10) dollars made payable to the "City of Brownsboro Village Treasurer". To my knowledge no such check has been received by our City Treasurer.
In closing, Mayor DeSensi expressed his desire to fully comply with state law and his willingness to discuss these issues with Mr. Watkins personally. While we applaud the spirit of cooperation his response evidences, we do not believe that the response fully conforms to the requirements of the Open Records Act.
We begin our analysis by noting that although Mr. Watkins furnished this office with a copy of his September 5, 2003 request addressed to the City of Brownsboro Village at P.O. Box 6635, Louisville, KY 40206, the city denies receipt of that request, acknowledging only a telephoned request from Mr. Watkins to Treasurer Shanks. 1 Because of these factual inconsistencies in the record on appeal, we make no finding as to the city's compliance with the procedural requirements of the Open Records Act codified at KRS 61.880(1) 2. Simply put, we are not equipped to resolve a dispute concerning actual delivery and receipt of a request. Nevertheless, we remind the parties to this appeal that the procedural requirements of the Open Records Act "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.
Because the city did not respond to Mr. Watkins' request in writing, the record on appeal does not conclusively establish that the city agreed to furnish him with copies of the records he requested upon prepayment of a ten dollar fee. We will assume, for the sake of argument, that such an offer was extended or has now been extended. The requirement of prepayment for nonexempt public records identified in an open records request finds support in KRS 61.872(3)(b) and 61.874(1). The former provision states:
(3) A person may inspect the public records:
. . .
(b) By receiving copies of the public records from the public agency through the mail . . . . 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.
In a similar vein, KRS 61.874(1) provides:
When copies are requested, the custodian may require a written request and advance payment of the prescribed fee, including postage where appropriate.
The "prescribed fee" is addressed at KRS 61.874(3) which provides:
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 3 and any mechanical processing 4 cost incurred by the public agency, but not including the cost of staff required.
These provisions do not, however, authorize public agencies to establish "nominal fees" that are unrelated to the legitimate cost factors recognized in KRS 61.874(3). In general, the courts and this office have approved a reasonable copying fee of no more than ten cents per page. These principles apply with equal force to city officers who are not compensated for their services.
In 01-ORD-136, this office engaged in a lengthy analysis of the propriety of a twenty cents per page copying fee imposed by a city clerk. A copy of that decision is attached hereto and incorporated by reference. At page 7 of that decision, we concluded that the city subverted the intent of the Open Records Act, within the contemplation of KRS 61.880(4), when it charged the requester twenty cents per page for copies of public records. We found that the city was statutorily obligated to recalculate its copying charge to reflect either its actual costs or no more than ten cents per page. In approving the latter charge, we reaffirmed the principle that "the courts and this office have struck a reasonable balance between the agency's right to recover its actual costs, excluding staff costs, and the public's right of access to copies of records at a nonprohibitive charge." 01-ORD-136, p. 7. Unless the City of Brownsboro Village can substantiate actual costs of ten dollars to reproduce the audits Mr. Watkins requested, it must recalculate its copying fee to conform to the requirements found at KRS 61.874(3) as construed in 01-ORD-136 and the authorities cited therein. The city must immediately notify Mr. Watkins of the recalculated copying fee or adduce specific written proof that the ten dollar fee imposed represents its actual cost. Upon submission of a revised invoice to Mr. Watkins, he may be required to prepay as a condition of receipt of the records requested.
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.
Distributed to:
Lowry Watkins, Jr.4949 Brownsboro Rd., #231Louisville, KY 40222-6424
Robert DeSensi, Jr., MayorCity of Brownsboro VillageP.O. Box 6635Louisville, KY 40206-0635
Susan Judge, Clerk City of Brownsboro Village411 Lotis WayLouisville, KY 40207
Jason Vaughn, AttorneyCity of Brownsboro Village410 Lotis WayLouisville, KY 40207
Footnotes
Footnotes
1 Although the agency "may require written application" pursuant to KRS 61.872(2), an orally communicated request triggers the requirement of agency response found at KRS 61.880(1) unless the requirement of written application is enforced. Hence, the fact that Mr. Watkins' earlier requests were transmitted orally did not relieve the agency of its statutory obligations.
2 KRS 61.880(1) provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
3 "Media" is defined at KRS 61.870(7) as:
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.
4 "Mechanical processing" is defined at KRS 61.870(8) as:
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.