Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Cabinet for Health and Family Services violated the Kentucky Open Records Act in failing to respond upon receipt of a renewed request by Steven J. Farmer for "all originals of my personal mail" directed to N. F. "currently being held without probable legal authority by DCBS [Department for Community Based Services]." To the extent that Mr. Farmer's request dated May 11, 2005, mirrors his prior request, the Cabinet is not required to satisfy his request a second time. By previously declining to provide Mr. Farmer with the original copies of those records which are responsive to his request on the basis of KRS 61.872 and KRS 61.874, the Cabinet acted in compliance with the Open Records Act. In addition, the Cabinet indicated that it had received sufficient documentation from Mr. Farmer to provide him with copies of the entire DCBS case file concerning N.F. Upon receipt of copying charges and postage, the Cabinet will honor Mr. Farmer's request as previously agreed; such action is not properly characterized as a denial. Because the Cabinet is fully authorized to condition release of the requested records upon advance payment of the prescribed fee, including postage, by virtue of KRS 61.874(1), and to prescribe a reasonable fee for making copies that does not exceed the actual cost of duplication excluding staff costs by virtue of KRS 61.874(3), this office finds no error in the Cabinet's disposition of Mr. Farmer's request.
By letter directed to Carrie Hall, Records Custodian, on May 11, 2005, Mr. Farmer requested "all originals of my personal mail seized in 2003, 2004 and 2005 currently being held without probable legal authority by DCBS at 753 Brooksville-Powersville Road Brooksville Kentucky by Patty Johnson DPPF SOS, Joan Cummins DPP R & C and April Dada DPP BS-SSWI." (Sic) "Failing to receive any response" to his request, Mr. Farmer initiated this appeal in a letter received by this office on May 31, 2005.
Upon receiving notification of Mr. Farmer's appeal from this office, Jon R. Klein, Assistant Counsel, responded on behalf of the Cabinet. As correctly observed by Mr. Klein, the instant appeal is directly related to the prior appeal filed by Mr. Farmer, Log Number 200500512. 1 That being the case, Mr. Klein incorporates by reference the Cabinet's response to that appeal. 2 Having summarized the content of the Cabinet's prior response, Mr. Klein advises this office that Mr. Farmer "has never paid the copying charges to receive the records he requested." As further explained by Mr. Klein:
If Mr. Farmer will pay the copying charges for the records he has already requested, he may receive copies of any letters he wrote to N. F. that are in the DCBS case file. Once Mr. Farmer has paid for his previous request, the Cabinet will notify him regarding any additional copying charges and/or postage for any letters or other mail that may have accumulated in N. F.'s file since December 2004. 3
Based upon the evidence of record, this office concludes that the Cabinet has acted in a manner consistent with the Open Records Act.
On the facts presented, KRS 61.874(3) is implicated. In relevant part, KRS 61.874(3) 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 and any mechanical processing cost incurred by the public agency, but not including the cost of staff required.
(Emphasis added). In a related vein, the custodian "may require a written request and advance payment of the prescribed fee, including postage where appropriate." KRS 61.874(1). As to the applicability of these provisions, 00-ORD-238, a copy of which is attached hereto and incorporated by reference, is controlling.
In closing, this office reiterates that a public agency is not "required to satisfy the identical request a second time in the absence of some justification for resubmitting the request." 95-ORD-47, p. 6; 00-ORD-226. As consistently recognized by the Attorney General:
We do not believe, however, that [an agency] is required to satisfy the identical request a second time in the absence of some justification for resubmitting that request. KRS 61.872(2) provides that "[a]ny person shall have the right to inspect public records" during regular office hours or by receiving copies through the mail. Common sense dictates, however, that repeated requests for the same records may become unreasonably burdensome or disrupt the agency's essential functions. Thus, at page 6 of OAG 92-92 this office observed:
95-ORD-47, p. 6; 00-ORD-226. Unless a requester such as Mr. Farmer can explain the necessity of reproducing the same records, once those records have been provided to him, such as loss or destruction of the records, this office does not believe that an agency such as the Cabinet must satisfy the same request multiple times. In this case, Mr. Farmer has neglected to provide payment as required by the Open Records Act; Mr. Farmer cannot now be heard to complain regarding the resultant delay.
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.
Steven Farmer204 PatelP.O. Box 603Dyersburg, TN 38025-0603
Carrie HallRecords Management SectionDivision of Protection and PermanencyCabinet for Health and Family Services275 E. Main Street, 5W-AFrankfort, Ky. 40621
Jon KleinAssistant CounselOffice of Legal ServicesCabinet for Health and Family Services275 E. Main Street, 5W-BFrankfort, KY 40621
Footnotes
Footnotes
1 Because Mr. Klein notified this office that the Cabinet would provide Mr. Farmer with copies of "N. F.'s entire DCBS case record, including any copies of letters he sent to her that may be in her case file, " and Mr. Farmer subsequently advised this office that Mr. Klein was "getting him all records he require[s]," this office declined to render a decision pursuant to 40 KAR 1:030 Section 6 and OAG 91-140. Because the issue which prompted Mr. Farmer's appeal had been resolved, the propriety of the Cabinet's action became moot, as this office advised Mr. Farmer in a letter dated January 5, 2004.
2 By letter dated December 10, 2004, Mr. Klein responded as follows:
The Cabinet recently received sufficient documentation from Mr. Farmer to provide him with copies of N.F.'s entire DCBS case record, including any copies of letters he sent to her that may be in her file. However, pursuant to KRS 61.872 and 61.874, the Cabinet declines to provide Mr. Farmer with original documents as he requests.
Due to the large volume of requests processed by the Cabinet and the estimated 400+ pages involved in this request, it is anticipated that the requested documents will be available on or before December 20, 2004.
The Cabinet will contact Mr. Farmer at a later date to inform him of the copying and postage fee associated with his request. The requested documents will then be mailed to him upon receipt of proper payment.
KRS 61.872(1) provides:
All public records shall be open for inspection by any person, except as otherwise provided by KRS 61.870 to 61.884, and suitable facilities shall be made available by each public agency for the exercise of this right. No person shall remove original copies of public records from the offices of any public agency without the written permission of the official custodian of the record. (Emphasis added).
As evidenced by the express and mandatory terms of this provision, public agencies such as the Cabinet are not required to provide original copies of public records as requested by Mr. Farmer. In relevant part, KRS 61.874 likewise provides:
(1) Upon inspection, the applicant shall have the right to make abstracts of the public records and memoranda thereof, and to obtain copies of all public records not exempted by the terms of KRS 61.878. When copies are requested, the custodian may require a written request and advance payment of the prescribed fee, including postage where appropriate. If the applicant desires copies of public records other than written records, the custodian of the records shall duplicate the records or permit the applicant to duplicate the records; however, the custodian shall ensure that such duplication will not damage or alter the original records.
Although Mr. Farmer is entitled to inspect the original copies of the requested records in the custody of the Cabinet, should he choose to exercise that option, Mr. Farmer is not entitled to receive the original copies without written permission which the Cabinet has declined to provide. Accordingly, the Cabinet complied with the Act in denying Mr. Farmer's request for original copies pursuant to KRS 61.872 and KRS 61.874.
3 Given the timing of Mr. Farmer's original request, any correspondence from 2005 necessarily did not exist yet. However, the Cabinet has expressly agreed to provide Mr. Farmer with copies of any correspondence generated subsequently on the same terms; nothing more is required.