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 Mercer County Clerk violated the Kentucky Open Records Act in failing to honor the request of Bart McQueary for copies of the rules and regulations adopted by his office in compliance with KRS 61.876. Although this office is unable to resolve the factual issue of whether the Clerk had a copy of the rules and regulations displayed in a prominent location accessible to the public, as mandated by KRS 61.876(2), the record provided to this office by the Clerk in response to Mr. McQueary's appeal does not comply with KRS 61.876(1). In addition, the proposed fee policy is not supported by governing precedent.
By letter directed to this office on November 23, 2005, Mr. McQueary initiated this appeal from Clerk Ronnie Compton's alleged refusal to respond upon receipt of his request dated November 16, 2005. Upon receiving notification of Mr. McQueary's appeal from this office, Mr. Compton advised this office that his staff "is attentive to all public and to the Open Records." (Sic) Enclosed with Mr. Compton's response are copies of the records "mailed to Mr. McQueary in November[,]" including OAG 94-38, KRS 61.872, and KRS 61.874, and a record presumably submitted as responsive to the request for rules and regulations mandated by KRS 61.876, which reads as follows:
COPIES
.10 EA
IF YOU NEED
CLERKS
ASSISTANCE,
COPIES WILL BE
.50 EA
THANK YOU
RONNIE COMPTON, CLERK
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 evidence concerning either the actual delivery/receipt of Mr. McQueary's request, or the posting of the quoted copying policy, for this office to conclusively resolve the related factual disputes. To the extent the Clerk failed to respond in writing to Mr. McQueary's request within three business days, by either providing him with copies of any responsive records or citing the specific exception authorizing the withholding of the record and briefly explaining how the exception applies, the Clerk did not comply with KRS 61.880(1). Even assuming the record was posted in compliance with KRS 61.876(2), the Clerk violated KRS 61.876(1) in failing to include the requisite elements. 1
As long recognized by the Attorney General, KRS 61.876(1) and (2) are:
aimed at insuring that each agency will educate the public on its particular policies and practices relative to open records. Simply stated, the rules and regulations contemplated by KRS 61.876 are a "how-to" for persons who wish to submit an open records request. [Footnote omitted]. . . . [Public agencies] must adopt rules and regulations pertaining to [their] open records polic[ies], or [they] may adapt the uniform rules and regulations promulgated by the Finance and Administration Cabinet to [their] particular needs. [They] must post these rules and regulations in a prominent location accessible to the public with the goal of broadly disseminating them. . . .
94-ORD-12, pp. 6-8; 98-ORD-200. Early on, this office held that KRS 61.876 requires each public agency to adopt rules pertaining to public records; failure to do so constitutes a violation of the Open Records Act. OAG 78-340. See also 04-ORD-053; 95-ORD-49; 94-ORD-12; 93-ORD-83; 92-ORD-1567. As demonstrated by the cited decisions, this is an issue which may properly be presented to the Attorney General for resolution pursuant to KRS 61.880(2). Because the broadest possible dissemination of an agency's rules and regulations concerning public records is mandated by both the letter and the spirit of the Open Records Act, this office urges the Clerk to review the policy of his office relative to KRS 61.876 in order to ensure conformity with the Act.
With respect to the propriety of additional charges imposed by the Clerk when his assistance is required, 02-ORD-218 and 00-ORD-110, copies of which are attached hereto and incorporated by reference, are controlling. Contrary to the Clerk's implicit assertion, the plain language of KRS 61.874(3), authorizing a "reasonable fee" for making copies of nonexempt public records requested which "shall NOT exceed the actual cost of reproduction," including the costs of "media and any mechanical processing cost incurred" by the public agency, "but NOT including the cost of staff required[,]" directly refutes the validity of his position. (Emphasis supplied) . As in the authorities cited, this office continues "to ascribe to the view that in approving a $ .10 per page copying charge 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-36, p. 6 (emphasis supplied) . In sum, the Clerk violated both KRS 61.876(1) and KRS 61.874(3).
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.
Bart McQueary790 E. Lexington StreetHarrodsburg, KY 40330
Ronnie ComptonMercer County ClerkP.O. Box 426Harrodsburg, KY 40330-0426
Footnotes
Footnotes
1 KRS 61.876 provides:
(1) Each public agency shall adopt rules and regulations in conformity with the provisions of KRS 61.870 to 61.884 to provide full access to public records, to protect public records from damage and disorganization, to prevent excessive disruption of its essential functions, to provide assistance and information upon request and to insure efficient and timely action in response to application for inspection, and such rules and regulations shall include, but not be limited to:
(a) The principal office of the public agency and its regular office hours;
(b) The title and address of the official custodian of the public agency's records;
(c) The fees, to the extent authorized by KRS 61.874 or other statute, charged for copies;
(d) The procedures to be followed in requesting public records.
(2) Each public agency shall display a copy of its rules and regulations pertaining to public records in a prominent location accessible to the public.
(3) The Finance and Administration Cabinet may promulgate uniform rules and regulations for all state administrative agencies.