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 actions of the Transit Authority of Lexington (LexTran) relative to the requests submitted by Bobbie Martin, Financial Secretary, on behalf of ATU Local # 639, violated the Kentucky Open Records Act. With respect to those records that LexTran has made available to Ms. Martin/Local 639, any related issues are moot; this office must therefore decline to issue a decision as to those records per 40 KAR 1:030, Section 6. To the extent Ms. Martin requested information as opposed to specifically described public records, LexTran is not statutorily obligated to honor her requests; a public agency is not required to compile a list or create a record in order to satisfy a request. Although LexTran is entitled to require advance payment of the prescribed fee, including postage where appropriate, when copies are requested, pursuant to KRS 61.874(1), the fee imposed shall not exceed the actual cost of reproduction, excluding staff costs, pursuant to KRS 61.874(3).
By undated letter transmitted to this office via facsimile on May 17, 2006, Ms. Martin appealed the responses of LexTran to the series of requests that she made on behalf of Local # 639 between September 24, 2004, and May 3, 2006, copies of which Ms. Martin included for review in accordance with KRS 61.880(2)(a). More specifically, Local # 639 requested the following records and information:
9/24/04 - All audits (financial) and supporting paperwork/information for 1995 - 2004.
10/3/05 - Complete copies of "all tri-annual reviews from the offices of the F.T.A. beginning with the 1995 audit up to and including the ongoing audit in 2005" (original request submitted by Tim Burnett, President, ATU Local # 639; on January 30, 2006, Ms. Martin requested "Complete copies of all triannual reviews from the FTA for the period 1/1/95 through 1/30/2006, to include all grant requests & show [whether] each grant request was granted or denied; all requests to change what the grant was originally to be used for and if those requests were granted or denied"). 1
12/29/05 - Copies of PAYCOR, ADP, etc. records of monies paid for work performed on any holiday from January 1, 1985, through December 31, 2005.
1/23/06 - Records documenting LexTran's share of total costs of arbitration/ mediation/ awards for 2002-2005 (one of six requests submitted that day, the rest of which LexTran subsequently honored as reflected by the record).
4/27/06 - LexTran (Terry Garcia Crews, General Manager) advises Local # 689 (Mr. Burnett) that "due to the number of open records requests we have been receiving," the cost of copies will increase from $ .05 to $ .10 for each page, and due to "the staff time required to fill these requests, we will need to bill the Union for the temporary service time commitment or staff time," the cost of which "will need to be paid prior to starting the request and if hours differ from the projected charges, we will provide either a charge for additional time or a reimbursement."
5/8/06 - Total number of employees in each class recognized by LexTran and total number in each pay grade of that class to include bargaining unit employees only, total car income reported as taxable for tax year 2005 on all cars taken home, total dollar amount paid on leased buses from California from inception of lease to present day, and total cost for training of one person to be a classroom trainer (four separate requests).
On appeal, Ms. Martin alleges that LexTran has "ignored" some of the requests, "pretending they never received" same; Ms. Martin further claims that she has never received "any kind of acknowledgement" in response to the "last four," which LexTran admittedly received on May 9, 2006. On May 11, 2006, Ms. Ms. Martin allegedly spoke with Ms. Davidson, "who handles the requests," but was told none of the "back requests" were ready yet nor was there a date when the records might be available. In addressing the prospective staffing costs, Ms. Martin clarifies that she does not want the records "on any kind of special media, only paper copies." Although the "price per copy has always been ten cents," Ms. Martin was later told "that it is supposed to be fifteen cents each now." 2 In her view, LexTran "raised the price of each copy to discourage" Local # 639 from requesting copies.
Upon receiving notification of Ms. Martin's appeal from this office, Barbara A. Kriz (retained as counsel by LexTran), responded on behalf of LexTran. As summarized by Ms. Kriz, the following sequence of events culminated in this appeal:
1. Open Records Request dated September 24, 2004:
This information was first requested by Tim Burnett, President of the Local ATU Union No. 639. [] Mr. Burnett is President of the same union in which Bobbie Martin is an officer. On April 29, 2004, Geri Davidson, Director of Finance and Personnel for LexTran, wrote to Mr. Burnett, advising that the audits were available for inspection on Friday, May 7, 2005. [] On that date, Mr. Burnett came to Ms. Davidson's office to review those audits and he specifically requested no copies of those audits. [] When Ms. Martin made the same request for those documents in September of 2004, a letter was sent to her by LexTran's then attorney, Theresa Holmes, advising her that the audits were open for her review at any time and that they had previously been made available to Mr. Burnett in May of 2004. [] LexTran has repeatedly provided this information to Ms. Martin's union and has made these records available for Ms. Martin to review, but she has never taken the time to come by and review the documentation or to pick up the copies of documents she requested. LexTran has responded to this Open Records request in a timely manner, and there is no merit to Ms. Martin's appeal with regard to the September[] 2004 Open Records request.
2. Open Records Request dated October 3, 2005:
This same information had previously been requested by the [U]nion on July 11, 2005, and in response to that request, Tim Burnett, Union President, was advised to make an appointment with Terry Garcia Crews, General Manager for LexTran, to review the documents. [] He never took this opportunity to review the documentation. Instead, a subsequent request for this same information was made by the Union on January 30, 2006[,] through Bobbie Martin, the Financial Secretary for the Union. [] In response to that Open Records request, a letter was sent to Bobbie Martin on February 1, 2006. [] She was informed that Mr. Burnett had made the same request and he was instructed to make an appointment with Terry Crews to review this documentation, and to date, he has not. These records have been readily available for a Union representative to review, but the Union representative has failed to come to the office of Geri Davidson to review this information. There has been complete compliance with this request, and there is no merit to the appeal.
3. Open Records Request dated December 29, 2005:
This request involved a review of documents generated over a period of 20 years. Much of the documentation was in storage, and because of the vast breadth of the request, significant time was needed to respond. Attached hereto as Exhibit 7 is LexTran's response to the request stating that there are no documents responsive to this request. The document provided by Ms. Martin demonstrates that LexTran responded in a timely manner and provided as much detail as was available to explain why the documents were not readily available and why additional time was needed. LexTran complied with this Open Records [r]equest and the appeal has no merit.
4. Open Records Request dated January 23, 2006:
A response to this Open Records request was sent to Ms. Martin by Geri Davidson on January 25, 2006. [] In that letter, Ms. Martin was advised that the same information had been requested by Tim Burnett for the period of January 1, 1999[,] through March 25, 2004, and that those documents were provided to Mr. Burnett on April 14, 2004. Ms. Martin was informed that the additional documentation from March 26, 2004[,] through 2005 was available and that Ms. Martin could set up an appointment with Ms. Davidson on February 3, 2006[,] to review all of that documentation. Attached hereto as Exhibit 9 is a document signed by Bobbie Martin dated March 21, 2006, indicating that she reviewed the documentation regarding LexTran's share of total costs of arbitrations/ mediations/ awards for the period of March 26, 2004[,] through 2005 and that she requested copies of those. Those copies were provided to Ms. Martin. LexTran responded to the Open Records request dated January 2[3], 2006[,] in a timely manner and there is no merit to Ms. Martin's appeal with regard to that request.
5. Letter of April 27, 2006, outlining policy changes
Ms. Martin [takes] issue with LexTran's policy regarding the costs for copies and additional expenses which may be incurred if temporary services have to be employed to respond to Open Records [r]equests. There is no actual Open Records request in dispute with regard to this policy. Since March 12, 2004, Bobbie Martin or Tim Burnett, officers of the local ATU Union, have filed in excess of 87 Open Records [r]equests to LexTran. [] Because [of] the excessive and often repetitive requests that the Union makes, Geri Davidson, who is the Official Custodian of LexTran records as well as Director of Human Resources, has been prevented from performing her regular work functions and LexTran may be forced to retain temporary personnel to accumulate [records] and respond to Open Records [r]equests. The Union has been given advance notice of the policy so there is no surprise when those temporary service costs are passed onto the Union in responding to Open Records [r]equests.
6. Four Open Records Requests dated May 8, 2006:
Total number of employees, etc. - On May 12, 2006, LexTran responded to this Open Records request in a letter by Geri Davidson identified herein as Exhibit 11. At that time, Ms. Martin was advised that the information requested would be available on Friday, May 26th. This Open Records [r]equest received a timely response by LexTran and that documentation will be available to Ms. Martin on May 26, 2006[,] if she chooses to come and review the documentation. There is no merit to the appeal of this Open Records request.
Total car income reported as taxable in 2005 - LexTran responded to this Open Records request through Geri Davidson on May 12, 2006. [] At that time, Ms. Martin was informed that any documentation responsive to this request would be made available to her on Friday, May 26, 2006[,] should she choose to review the documentation. LexTran responded to this Open Records request in a timely manner and the records will be made available to the requesting party in a timely manner. There is no merit to the appeal with regard to this request.
Total dollar amount paid to lease buses from CA - The actual lease agreements on the California busses were requested by Bobbie Martin on February 7, 2006[,] to include the total cost of the leases, upfront money and [per month] costs. [] In response to that Open Records request, a letter was sent to Ms. Martin on February 14, 2006, advising her that the lease agreements were available for her to pick up. [] On February 17, 2006, Ms. Martin reviewed the documentation and requested copies which were supplied to her. [] Therefore, the information regarding the total amount paid on these leased busses was provided to Ms. Martin in February of 2006. Notwithstanding that, when she requested this documentation once again in May of 2006, a letter was sent to her by Geri Davidson on May 12, 2006, advising her that the information would be made available to her once again on Friday, May 26, 2006. [] LexTran has responded twice to this Open Records [r]equest for the same information in a timely manner. There is no merit to Ms. Martin's Open Records appeal with regard to this information.
Total costs for training one person to be a classroom trainer - On May 12, 2006, a letter was sent to Ms. Martin acknowledging receipt of the request for the information and advising her that this information would be made available to her on Friday, May 26, 2006. [] LexTran responded to this Open Records request in a timely manner, and the records will be made available to the requesting party in a timely manner, and, therefore, there is no merit to this Open Records appeal.
Attached to LexTran's supplemental response are copies of the referenced correspondence, all of which substantiates this factual summary, if not the characterization or legal effect of some responses. 3
With respect to records that LexTran has permitted Ms. Martin to inspect, has provided copies of to her, and/or has made available for review, specifically, the requested audits and supporting documentation, the specified triannual reviews, the combined total cost of arbitrations/ mediations/ awards for 2002-2005, and the four categories of information requested on May 8, 2006, any substantive issues are moot; LexTran ultimately honored the requests as opposed to denying access in each case. Pursuant to 40 KAR 1:030, Section 6: "If requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." See 04-ORD-046; 03-ORD-087. In applying this mandate, the Attorney General has consistently recognized that when access to public records is initially denied but subsequently granted, the "propriety of the initial denial becomes moot. " 04-ORD-046, p. 5, citing OAG 91-140. Based upon the evidence of record, this office must therefore decline to issue a decision relative to the aforementioned records.
As a public agency, LexTran is required to comply with the procedural and substantive provisions of the Open Records Act regardless of the requester's identity or purpose in requesting access generally speaking. More specifically, KRS 61.880(1) contains the procedural guidelines to which public agencies must adhere in responding to requests submitted pursuant to the Act. In relevant part, KRS 61.880(1) 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.
In applying this provision, the Attorney General has consistently observed:
"The value of information is partly a function of time." Fiduccia v. U.S. Department of Justice, 185 F.3d 1035, 1041 (9th Cir. 1999). This is a fundamental premise of the Open Records Act, underscored by the three day agency response time codified at KRS 61.880(1). Contrary to [LexTran's] apparent belief, the Act contemplates records production on the third business day after receipt of the request, and not simply notification that the agency will comply. In support, we note that KRS 61.872(5), the only provision in the Act that authorizes postponement of access to public records beyond three business days, expressly states:
(Emphasis added). Additionally, we note that in OAG 92-117 this office made abundantly clear that the Act "normally requires the agency to notify the requester and designate an inspection date not to exceed three days from agency receipt of the request." OAG 92-117, p. 3. Only if the parameters of a request are broad, and the records implicated contain a mixture of exempt and nonexempt information, and are difficult to locate and retrieve, will a determination of what is a "reasonable time for inspection turn on the particular facts presented." OAG 92-117, p. 4. In all other instances, "timely access" to public records is defined as "any time less than three days from agency receipt of the request." OAG 82-300, p. 3; see also 93-ORD-134 and authorities cited therein. Pursuant to KRS 61.872(5), "any extension of the three day deadline for disclosure must be accompanied by a detailed explanation of the cause for the delay, and a written commitment to release the records on the earliest date certain." 01-ORD-38, p. 5.
01-ORD-140, pp. 3-4 (emphasis added). Although LexTran generally provided a "date certain" on which the records would be available, noticeably absent from the original responses provided by LexTran is the requisite "detailed explanation" for the expected delay. In responding to Ms. Martin's request of December 29, 2005, for copies of "PAYCOR, ADP, etc., records" generated from 1985-2005, LexTran omitted both of these mandatory elements. To this extent, LexTran violated KRS 61.872(5), although a reasonable delay was justified in the latter case given the specified timeframe and volume of records implicated.
In general, a public agency cannot postpone or delay this statutory deadline. "The burden on the agency to respond within three working days is, not infrequently, an onerous one. Nevertheless, the only exceptions to this general rule are found at KRS 61.872(4) and (5)." 02-ORD-165, p. 3. 4 With the exception of repeating this procedural violation, 5 LexTran complied with the Act in responding to properly framed requests for existing public records.
Early on, this office clarified that the "purpose of the Open Records Law is not to provide information, but to provide access to public records which are not exempt by law." OAG 79-547, p. 2. On this basis, the Attorney General has consistently held that "requests for information as opposed to requests for specifically described public records, need not be honored." 00-ORD-76, p. 3, citing OAG 76-375. Elaborating upon this position, the Attorney General has recognized:
Obviously information will be obtained from an inspection of the records and documents but the duty imposed upon public agencies under the Act is to make public documents available for inspection and copying. Public agencies are not required by the Open Records Act to gather and supply information independent of that which is set forth in public records. The public has a right to inspect public documents and to obtain whatever [nonexempt] information is contained in them but the primary impact of the Open Records Act is to make records available for inspection and copying and not to require the gathering and supplying of information.
04-ORD-080, p. 13, citing OAG 87-84. See also OAG 90-19; OAG 89-81; OAG 89-77. Of particular relevance here:
This office has long recognized that a public agency is not obligated to compile a list or create a record to satisfy an open records request. See, e.g., OAG 76-375; OAG 79-547; OAG 81-333; OAG 86-51; OAG 90-101; 93-ORD-50. At page 2 of 93-ORD-50, we observed:
02-ORD-165, p. 4. Simply put, "what the public gets is what . . . [the public agency has] and in the format in which . . . [the agency has] it." Id., p. 5, citing OAG 91-12, p. 5. A review of the statutory language upon which these decisions are premised, including KRS 61.871 (providing that "free and open examination of public records is in the public interest"), KRS 61.872(1) (providing that "[a]ll public records shall be open for inspection by any person"), and KRS 61.872(2) (providing that "[a]ny person shall have the right to inspect public records ") (emphasis added), validates this position.
Because the request submitted on January 23, 2006 (total costs of mediations/ arbitrations/ awards), as well as the four requests of May 8, 2006, are properly characterized as requests for information, LexTran was not statutorily obligated to honor same. However, the analysis does not end there. "While it is certainly true that public agencies are not required to compile information to satisfy a request, we believe that agencies are required to make available for inspection, during normal office hours, records that might yield the information sought." 97-ORD-6, p. 5 (Original emphasis). In keeping with this position, the Attorney General has noted that if a requester wishes to extract information that has not already been compiled, he "may make a fishing expedition through public records on his own time and under the restrictions and safeguards of the public agency. " 98-ORD-17, p. 10, citing OAG 76-375, p. 3. Echoing this view, our office has held that "one desiring that lists be made, or that broad categories of information be provided, must expend their own time digging the information out unless it has already been compiled." Id., citing OAG 89-61, p. 5. As evidenced by the record, LexTran has provided Ms. Martin with an opportunity to inspect any records that are potentially responsive to her requests and provided copies of same upon request; nothing more is required.
In light of this determination, the remaining issue is whether LexTran erred in prospectively advising Local # 639 of the specified policy changes; the short answer is "yes." Of particular relevance here, KRS 61.874(3) provides that a 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 agency, but not including the cost of staff required." (Emphasis added). In applying this provision, the Attorney General has consistently held "that the fee charged for copies should be based on the agency's actual expense, not including staff costs"; the fee is "thus limited to the proportionate cost of maintaining copying equipment by purchase or rental, and the supplies involved." 99-ORD-159, p. 2. Accordingly, LexTran must calculate any fees to include the actual cost of reproduction, but exclude staff costs in accordance with KRS 61.874(3). Given the pattern of "excessive and often repetitive requests" submitted by Ms. Martin/Local # 639, building a case pursuant to KRS 61.872(5), upon which LexTran implicitly relies in making this argument, would be the viable alternative. 6
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.
Bobbie MartinFinancial SecretaryLocal # 639577 Elk DriveLexington, KY 40517
Geri DavidsonDirector of Human Resources109 W. Loudon AvenueLexington, KY 40508
Barbara KrizBaker, Kriz, Jenkins & PrewittPNC Bank Plaza200 West Vine Street, Suite 700Lexington, KY 40507
Footnotes
Footnotes
1 In a letter directed to Geri Davidson, Director of Finance/Personnel, on February 3, 2006, Ms. Martin advised LexTran that she had spoken with Mr. Burnett, who denied ever being informed that he needed to schedule an appointment with Ms. Crews to inspect the reviews, but clarified that Local # 639 wanted copies of all reviews and did "not need to review them first." However, "a requester that both lives and works in the same county where the public records are located may be required to inspect the records prior to receiving copies." 05-ORD-189, p. 2, citing 03-ORD-067, p. 4. See pp. 2-3 of 05-ORD-189 for the analysis employed by the Attorney General in this context.
2 On this issue, 01-ORD-136 is controlling; in approving a copying fee of ten cents per page the courts (Friend v. Rees, Ky. App., 696 S.W.2d 325 (1985)) 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." Id., p. 4.
3 Absent evidence to the contrary, this office assumes that LexTran made records containing the information requested on May 8, 2006, available to Ms. Martin for inspection on May 26, 2006, as indicated.
4 However, LexTran was notobligated to honor duplicative requests as it apparently did at least once (lease agreements); 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 this office:
. . . 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 92-91 this office observed:
To produce . . . records entails some inconvenience to the agency; to produce them three or four times requires a level of "patience and long-suffering" that the legislature could not have intended. Citing OAG 77-51, p. 3.
95-ORD-47, p. 6 (emphasis added). Unless a requester such as Ms. Martin can explain the necessity of reproducing the same records that have already been released to her, such as loss or destruction of the records, this office does not believe that an agency such as LexTran must satisfy the same request multiple times.
5 The record is devoid of evidence indicating that LexTran acted in bad faith.
6 In 04-ORD-028, pp. 4-13, this office engaged in a through analysis of the standard applied in determining whether a public agency has provided clear and convincing evidence as required to successfully invoke this provision.