Request By:
James A. Shuffett
400 Security Trust Building
271 West Short Street
Lexington, KY 40507-1292Chief Keith Middleton
Stanford Police Department
305 Main Street
Stanford, KY 40484Virginia Carol Hill
City Attorney
P. O. Box 353
Stanford, KY 40484-0353
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 Stanford Police Department violated the Kentucky Open Records Act in failing to respond upon receipt of a request by James A. Shuffett for copies of the "final police report for the accident that occurred on December 12, 2004, at the intersection of Highways 150 and 27 in Stanford, wherein Tamara May was killed," and the "[p]hotos made by investigating police officers at the scene of said accident on December 12, 2004." Upon receiving notification of Mr. Shuffett's appeal from this office, in which Mr. Shuffett alleges that Chief Keith Middleton "has not denied same in writing, but refuses to answer" his letters, Virginia Carol Hill, Attorney for the City of Stanford, responded on behalf of the SPD. According to Ms. Hill:
Unfortunately there has been a communication error between Mr. Shuffett and the [SPD]. We are not aware of any letters to the [SPD] from Mr. Shuffett. Chief Middleton did not get the request dated May 17, 2005, attached to Mr. Shuffett's appeal. In Mr. Shuffett's letter of June 15, 2005 to your office, he states, "but just refuses to answer my letters," indicating there have been other letters. Chief Middleton has not received any letters from Mr. Shuffett.
To receive a final police report for an accident a $ 4.00 fee is charged. Mr. Shuffett should be familiar with this procedure through his client. His client received a copy of the final police report some time ago. We do not send out reports and then bill as Mr. Shuffett requested in his letter of May 17, 2005.
There were photos made at the scene of the accident in question. These were part of an ongoing criminal investigation. The case was presented to the Lincoln County Grand Jury and a no true bill returned. However, in anticipation of a possible civil suit and for the convenience of the victim's family, Chief Middleton had already developed doubles of the photos. With the criminal matter resolved, we have evaluated the content of the photos and do not feel that they meet an exception as provided for in KRS 61.878 that would require a Court Order.
Consequently, if Mr. Shuffett will forward the $ 4.00 fee to the City of Stanford, we will be happy to send him the report and pictures. If he wants these sent overnight or certified mail he will need to make arrangements to pay for this expense in advance, otherwise we will mail the report and photos by first class mail.
With respect to factual disputes of the nature presented, the Attorney General has consistently observed:
This office cannot, with the information currently available, adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided. Indeed, such is not the role of this office under open records provisions. It seems clear that you have permitted inspection of some records [the requester] asked to inspect, and that copies of some records have been provided. Hopefully, any dispute regarding the records here involved can be worked out through patient consultation and cooperation between the parties.
03-ORD-061, p. 2, citing OAG 89-81, p. 3; See 04-ORD-036; 03-ORD-204. As in the cited decisions, the record on appeal does not contain sufficient information concerning the actual delivery and receipt of Mr. Shuffett's request for this office to conclusively resolve the related factual discrepancy. Absent objective evidence, this office finds no violation by the SPD in this regard. In short, the role of the Attorney General in adjudicating an Open Records dispute is narrowly defined by KRS 61.880(2), and this office is without authority to deviate from that statute.
In light of this determination, the remaining question is whether the SPD subverted the intent of the Open Records Act, short of denial of inspection, by imposing excessive fees, per KRS 61.880(4), since the SPD has agreed to honor Mr. Shuffett's request in its entirety upon receipt of the standard $ 4.00 fee. Noticeably absent from the response of the SPD on appeal is any explanation of how that amount is justified. Because the SPD has failed to substantiate that the quoted figure reflects the actual costs incurred in reproducing the requested public records, this office must conclude that the fee is excessive. As a corollary proposition, this office hereby advises the SPD to adjust the fee imposed to reflect the actual costs of reproduction or no more than ten cents per page as mandated by KRS 61.874(3). On this issue, the reasoning contained in 03-ORD-224 and 01-ORD-136, copies of which are attached hereto and incorporated by reference, is equally applicable. In approving the latter charge, both 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 SPD can substantiate that the actual cost of reproducing the records requested is $ 4.00, the SPD must recalculate its copying fee to conform to the requirements of KRS 61.874(3) as construed in 01-ORD-136 and the authorities upon which that decision is premised.
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.