Opinion
Opinion By: Gregory D. Stumbo,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Education Professional Standards Board subverted the intent of the Open Records Act, short of denial of inspection, by imposing excessive copying fees for the production of "final orders of the . . . Board in teacher/administrator disciplinary cases for calendar years 2001 and 2002." For the reasons that follow, we find that the Board did not subvert the act in the imposition of a $ 97.00 copying charge for production of the final orders that were requested for a commercial purpose.
In her December 2003 request, Florence Huffman, president of Clark Publishing Communications, advised Board Director of Legal Services, Brenda Allen, that her company contemplated "us[ing] these records directly or indirectly for a 'commercial purpose' as defined in KRS 61.870(4)(a)." Ms. Huffman explained:
Primarily, the disciplinary opinions of the EPSB, and the factual cases upon which they were decided, will form the basis for a series of professional development seminars directed at the teaching profession.
Shortly thereafter, and in response to Ms. Huffman's request for a breakdown of the $ 97.00 charge for production of responsive records, Ms. Allen provided the following itemized statement "[i]n accordance with KRS 61.874(4)(c)1 and 2":Program Coordinator:Research for final orders for 2000, 2001, 2002,retrieval, copying originals, redacting copies,copying redacted records:Total: 4 hours @ $ 15.00 per hour:$ 60.00General Counsel:Review and assignment of Open Records Request10 minutesLetter/Fax of December 815 minutesReview of Open Records compiled5 minutesLetter/Fax of December 1015 minutes45 minutesTotal: 45 minutes @ $ 44.00 per hour$ 33.00Copies: 27 records @ .10 per page$ 2.70Postage:$ 1.30
This appeal followed:
In her letter of appeal, Ms. Huffman challenges "the validity of the charges for any time other than 'production' of the copies, plus a reasonable fee for the actual copy." Specifically, she objects to that portion of the fee assessed for time expended by the 'Program Coordinator' and the 'General Counsel' for such activities as research, retrieval, review and assignment . . .," as well as the fee for postage. Additionally, Ms. Huffman notes that her company was "charged for 'redacting copies and copying redacted records,' but a review of the copies . . . received does not indicate any redacted material." Finally, Ms. Huffman asks whether the intended use of the requested records, namely, the discussion of "the factual issues of the disciplinary cases . . . during the seminars for which a registration fee will be paid by the participants . . . [, and] posting the final orders on [the] company website," for which there will be no fee, constitutes a commercial purpose within the meaning of the Open Records Act.
In supplemental correspondence directed to this office following commencement of Ms. Huffman's appeal, Ms. Allen elaborated on the Board's position. To begin, Ms. Allen asserted that to the extent Clark Publishing Communications anticipates a profit from the use of the requested records, its intended use of the records falls squarely within the parameters of KRS 61.870(4)(a). With reference to Ms. Huffman's challenge to the reasonableness of the fees imposed, Ms. Allen delineated in considerable detail how the Board calculated the rates for agency staff, staff time, and copying and postage charges. A copy of Ms. Allen's January 29, 2004 response is attached hereto and incorporated by reference. With reference to the necessity of redactions, Ms. Allen explained that the Board utilizes a educator's social security number as his or her certificate number and that pursuant to both state and federal privacy laws, these numbers must be redacted from the heading, and occasionally the body, of all final orders entered by the Board. 1 In support, she furnished this office with an example of a redacted copy of a final order. Citing KRS 61.874(4)(c) and 03-ORD-025, in which this office affirmed the copying charge imposed by the Knox County Property Valuation Administrator based on an hourly rate required for staff time, Ms. Allen concluded:
[I]t is permissible for an agency to charge a reasonable fee not only for "acquisition" of the public records, but for "mechanical processing" and staff required to "produce" not "reproduce" a copy of the public records. If the Office of the Attorney General were to adopt Ms. Huffman's reasoning, the EPSB should only charge her for the 10 minutes of staff time spent standing before the copy machine, while the cost of the remaining staff time, which comprised nearly an entire day, would be at "taxpayer's expense." We doubt that the General Assembly intended for the taxpayers to bear the cost of the production of records, or the cost of postage, when an individual intends to use those records for financial gain.
We agree.
It is the decision of this office that the purpose for which Clark Publishing Communications obtained the requested records, namely to incorporate them into a professional development seminar for which participants will be assessed a registration fee, and from which Clark expects "a profit either through commission, salary, or fee," clearly constitutes a "commercial purpose within the meaning of KRS 61.870(4)(a). Compare 02-ORD-89 (acquisition of public records for use in a political campaign does not constitute a commercial purpose) . That statute defines the term "commercial purpose" as:
[T]he direct or indirect use of any part of a public record or records, in any form, for sale, resale, solicitation, rent, or lease of a service, or any use by which the user expects a profit either through commission, salary, or fee.
The statute expressly excludes from the definition of "commercial purpose" :
1. Publication or related use of a public record by a newspaper or periodical;
2. Use of a public record by a radio or television station in its news or other informational programs; or
3. Use of a public record in the preparation for prosecution or defense of litigation, or claims settlement by the parties to such action, or the attorneys representing the parties;
KRS 61.870(4)(b). It does not exclude use of a public record in preparation for a seminar, training session, or other educational endeavor, and we are not at liberty to read such an exclusion into the definition of "commercial purpose" no matter how laudatory the purpose or goal. Nor may we disregard the stated commercial purpose simply because the records will also be used for an ostensibly noncommercial purpose, namely posting them on Clark Publishing's website for public access at no charge. We agree with the Education Professional Standards Board that the certified statement of the intended use of these public records falls squarely within the parameters of KRS 61.870(4)(a).
Under these circumstances, the Board is authorized to prescribe a reasonable production 2 fee based on one or both of the following criteria:
1. Cost to the public agency of media, mechanical processing, and staff required to produce a copy of the public record or records;
2. Cost to the public agency of the creation, purchase, or other acquisition of the public records.
With the notable exception of the 2003 decision cited by the Board, there is little to guide us in construing those criteria other than the language of the criteria itself. KRS 61.874(4)(a) expressly authorizes public agencies to recover the cost of staff required to produce a copy of a public record, and, in this respect, markedly differs from KRS 61.874(3), expressly excluding "the cost of staff required." 3 The statute fully supports imposition of an hourly rate for staff time expended in the assignment and research of an open records request, as well as the retrieval, redaction, and reproduction of responsive records, and ultimate review and disposition of that request. We concur with the Board in its view that the terms "creation" and "acquisition" are sufficiently broad to extend to these activities. 4 The Board has amply documented the allocation of its staff resources to each of these functions, and nothing appears in the record on appeal to raise the issue of the Board's veracity or good faith in this matter. Accordingly, we affirm the Education Professional Standards Board's actions and conclude that the Board did not subvert the intent of the Open Records Act through the imposition of excessive fees.
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.
Florence S. HuffmanClark Publishing CommunicationsP.O. Box 24766Lexington, KY 40524
Brenda Dinkins AllenGeneral CounselKentucky Education Professional Standards Board100 Airport Road, 3rd FloorFrankfort, KY 40601
Footnotes
Footnotes
1 We note that the Board failed in both its original and supplemental denial to "include a statement of the specific exception authorizing the withholding of the record [or portion thereof]." KRS 61.880(1). To this extent, the Board's responses were deficient.
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2 As Ms. Allen correctly observes, if copies of nonexempt public records are requested for commercial purposes, public agencies may establish a reasonable fee based on, inter alia, media, mechanical processing, and "staff required to produce a copy of the public record (s)." KRS 61.874(4)(a) and (c) (emphasis added). In contrast, KRS 61.874(3) provides that public agencies "may prescribe a reasonable fee for making copies of nonexempt public records requested for use for noncommercial purposes" based on media and mechanical processing costs but not exceeding the actual cost of reproduction, excluding the cost of staff required. (Emphasis added.) We attach significance to the General Assembly's particular choice of words. Had the General Assembly intended to limit public agencies' cost recovery for commercial requests to the cost to "reproduce" the records, rather than to "produce" the records, it could have employed the former term rather than the latter. It did so in limiting cost recovery for noncommercial requests to "the actual cost of reproduction. "
3 KRS 61.874(3) provides in full:
The public agency may prescribe a reasonable fee for making copies of nonexempt 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. (Emphasis added.)
4 Compare,Amelkin v. McClure, 168 F.3d 893 (6th Cir. 1999), vacated and remanded on other grounds, McClure v. Amelkin, 528 U.S. 1059 (1999), questioning the propriety of the Kentucky State Police's imposition of a $ 17,650 production charge for accident reports that previously cost the user only $ 68, and its possible use of the "recreation" language in the statute:
to charge commercial users not only for the compilation, storage, and upkeep of such records by the agency itself, but also for the state's investigative and personnel costs that went into "creating" the record. In other words, the agency might be utilizing the "creation" language as a basis to charge more than the agency's marginal or even average cost in producing the records. Instead, the agency might be using this language to recoup the state's costs for law enforcement's investigation that backs up the creation of accident reports. McClure at 902. The court opined that such an interpretation of the statute "might well be arbitrary and capricious . . . ." Id. There is no evidence in the record on appeal that the Board utilized the language of the statute to recover anything more than its marginal costs or to recoup any costs other than those associated with the disposition of Ms. Huffman's request.
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