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 Westport Fire Protection District and the Westport Fire Department, Inc., violated the Open Records Act in the disposition of the Friends of Westport, Inc.'s, April 10, 2006, requests for various financial and operational records maintained by the District and the Department. For the reasons that follow, we find that the District and Department's disposition of FOW's request was procedurally deficient but substantively correct.
In their April 10 request to the Department, 1 FOW asked "that a copy of the following documents be provided . . . by mail:
1. All training logs for the last five years;
2. Financial reports, i.e., budget, expenditures, income, balance statement for the last five years, including maintenance and upkeep of firehouse and schoolhouse . . . [and] utility bills;
3. Ladies or Auxiliary minutes to meetings for last five years;
4. Ladies or Auxiliary budget, expenditures, and members for last five years;
5. List of active firefighters and certification for last 2 years;
6. Inventory of large equipment, i.e., make, model, and description;
7. Articles of Incorporation;
8. By-laws, changes in said by-laws, and standing rules;
9. Minutes of last five meetings[.]
In closing, FOW requested "a waiver of all fees . . ." associated with the production of responsive records.
In a request directed to the Westport Fire Protection District on the same day, FOW again asked "that a copy of the following documents be provided . . . by mail:
1. Minutes of last two years meetings;
2. Treasurer or financial report [for] last five years;
3. District Board of Trustees member list and terms;
4. Articles of Incorporation;
5. By-laws and standing rules (if applicable)[.]
Again, FOW requested a waiver of all fees associated with the request. Having received no response to these requests, FOW initiated this appeal questioning the agencies' failure to produce any responsive records to date.
In correspondence directed to this office following commencement of FOW's appeal, Maurice A. Byrne, Jr., an attorney representing both the District and the Department, furnished the Attorney General with copies of the agencies belated KRS 61.880(1) responses. Mr. Byrne advised FOW that both agencies are "anxious to provide FOW with full and complete access to inspect and copy any and all public records, " indicating that "all records are now available." 2 With reference to FOW's request for records in the custody of the District, Mr. Byrne stated that the minutes, financial records, and members list had been located, but that the District could not furnish Articles of Incorporation or by-laws because none exist. With reference to FOW's request for records in the custody of the Department, Mr. Byrne stated that copies of training logs, financial reports, lists of active firefighters and their certifications, large equipment inventory, articles of incorporation, by-laws, and minutes of meetings had been located, but that the Department could not furnish the Ladies or Auxiliary budget, or minutes of its meetings, because none exist.
Both agencies declined FOW's request to waive any fees associated with production of copies, relying on KRS 61.874(1) 3 and explaining that each is supported by taxes and staffed by volunteers. It was their position that they could not "waive the costs of making copies . . . at the expense of taxpayers." On behalf of the agencies, Mr. Byrne further explained that neither the District nor the Department maintains copying equipment, but that the UPS Store estimated the cost of reproduction for some 725 page of District records at $ 125.00 and the cost of reproduction for some 892 pages of Department records at $ 152.00, or approximately seventeen cents per page. Upon receipt of these copying charges, plus the estimated cost of postage, Mr. Byrne concluded, copies of these records would be mailed to FOW.
Having reviewed these responses, we find that the Westport Fire Protection District and the Westport Fire Department violated KRS 61.880(1) in failing to respond in writing, and within three business days, to FOW's request. Its belated responses were, however, consistent with the substantive requirements of the Open Records Act in all material respects.
KRS 61.880(1) sets forth procedural guidelines for agency response to an open records request. That statute 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.
In construing this provision, the Kentucky Court of Appeals has observed, "The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents."
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996). A "limited and perfunctory response" to an open records request does not "even remotely compl[y] with the requirements of the Act - much less . . . amount[] to substantial compliance." Id. The District and Department's failure to respond in any fashion is especially egregious, given the fact that these agencies, and public agencies generally, are assigned "[t]he burden of proof in sustaining [their] action . . . ." KRS 61.880(2)(c). We urge the District and Department to review the cited provision to insure compliance with KRS 61.880(1) in responding to future open records requests. 4
Turning to the substantive issues in this appeal, we find that the District and Department properly disposed of FOW's requests by releasing, albeit belatedly, all nonexempt records responsive to those requests. Neither agency elected to withhold records, but both were compelled to deny certain requests on the basis of the nonexistence of responsive records. We refer the parties to a long line of decisions in which the Attorney General has recognized that a public agency cannot afford a requester access to a document which does not exist or which it does not have in its possession or custody. See, for example, OAG 86-38; OAG 91-101; 93-ORD-51; 96-ORD-164; 02-ORD-144. In general, it is not our duty to investigate in order to locate documents which the public agency states does not exist.
The Kentucky Open Records Act was substantially amended in 1994. The General Assembly recognized "an essential relationship between the intent of [the Act] and that of KRS 171.410 to 171.740, dealing with the management of public records. . . ." KRS 61.8715. There are occasions when, under the mandate of this statute, the Attorney General requests that the public agency substantiate its denial by demonstrating what efforts were made to locate a record or explaining why no record was generated. The District's and Department's only remaining duty, therefore, is to advise FOW why no responsive records exist, e.g., that the District is not statutorily required to adopt articles of incorporation or bylaws (if this is, in fact, the case), or that no minutes or budget exist for the Ladies Auxiliary because there is no Auxiliary (if this is, in fact, the case).
We find no error in the imposition of copying charges so long as those charges are consistent with the requirements set forth at KRS 61.874(3). On this topic, the Attorney General has opined:
KRS 61.874(3) authorizes public agencies to "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." See also, KRS 61.874(1) ("When copies are requested, the custodian may require a written request and advance payment of the prescribed fee, including postage where appropriate"); KRS 61.872(3)(b) ("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"). These statutes contain no provision for the waiver of such fees for any party. See 94-ORD-90 (no waiver of reproduction charges for media representative); 99-ORD-30 (no waiver of reproduction charges for inmates). "Simply stated, all persons have the same standing to inspect and receive copies of public records, and are subject to the same obligation for receipt thereof." 94-ORD-90, p. 3; OAG 79-546; OAG 79-582; OAG 80-641; OAG 82-394; OAG 89-86; OAG 91-129; 92-ORD-1136.
00-ORD-238, p. 2. While FOW may exercise its right of onsite inspection per KRS 61.872(3)(a) without incurring any copying or postage charges, the District and the Department are entitled to impose such charges if copies are ultimately made and mailed per KRS 61.872(3)(b).
Whether the proposed copying charges are reasonable within the meaning of KRS 61.874(3) is a closer question. Neither the District nor the Department currently maintain copying equipment. Their only recourse, then, is to utilize the services of a commercial copying company, in this case, the UPS Store, at a cost of approximately 17 cents per page. 5 While this figure clearly exceeds the 10 cents per page copying charge deemed reasonable in
Friend v. Rees, Ky. App., 696 S.W.2d 325, 326 (1985), it does, in fact, represent the "actual cost of reproduction" to the agencies. The only known alternatives to the agencies' proposed copying and postage charges would involve releasing the documents to FOW under terms and conditions that would insure the original documents were not damaged or altered, per KRS 61.874(1), or allowing FOW to bring copying equipment and paper to the District's and Department's offices, and permitting FOW to make its own copies on-site. Unless FOW wishes to implement one of these alternatives, it may properly be required to pay the approximately 17 cents per page copying charge proposed by the Westport Fire Protection District and the Westport Fire Department, Inc.
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.
H. Glen WatsonKathy HockensmithTammy BantaFriends of WestportExecutive BoardP.O. Box 71Westport, KY 40077
Chief Jeffrey StockWestport Volunteer Fire Department6407 4th StreetWestport, KY 40077
Hon. Mary Ellen KinserOldham County Judge/ExecutiveOldham County Fiscal Court Building100 W. Jefferson StreetLaGrange, KY 40031
Maurice A. Byrne, Jr.Benson, Byrne, Risch, Siemens & Lange, LLPOne Riverfront Plaza401 West Main Street, Suite 2150Louisville, KY 40202-4241
Footnotes
Footnotes
1 This request supplemented a May 2, 2005, request submitted by FOW to which FOW received a written response, but no responsive records.
2 Mr. Byrne explained that the agencies' failure to promptly honor FOW's requests was occasioned by disruptions in appointments to the Board of Trustees and the challenges encountered by the new appointees, including "an almost complete lack of organization of [agency] records."
3 KRS 61.874(1) provides as follows:
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 record, 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.
4 Mr. Byrne advises that neither the District nor the Department employ paid staff. Nevertheless, KRS 61.870(5), 61.876(1)(b), and 61.880(1) contemplate the appointment of an official custodian of the public agency's records who is "responsible for the maintenance, care, and keeping of public records" and for properly processing open records requests. It is therefore imperative that both the District and Department designate an individual to fulfill these duties and apprise the public of this designation by adopting rules and regulations governing access to their records, in which they identify the custodians by name, and displaying the rules and regulations in a prominent location accessible to the public per KRS 61.876(2).
5 This assumes that the agencies made a good faith effort to locate a commercial copying company whose rates were competitive so as to minimize associated costs.