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 Tri-County Regional Airport Board violated, or subverted the intent of, the Kentucky Open Records Act in the disposition of James E. Parsons' (of Taft, Stettinius & Hollister LLP) request for copies of all existing records "from the Tri-County Regional Airport Board, including its predecessors, members, representatives, consultants, advisors, officers, and employees . . . relating to the Kentucky Speedway . . . ." By failing to either respond in writing and provide access within three business days, as required by KRS 61.880(1), or provide a detailed explanation of the cause for delay and the earliest date on which the records would be available, as required by KRS 61.872(5), the Board committed a procedural violation of the Act. Insofar as the proposed fee exceeds the actual cost of reproduction, as expressly prohibited by KRS 61.874(3), the Board subverted the intent of the Act short of denying inspection by virtue of KRS 61.880(4). Although HMB Professional Engineers, Inc. is presumably serving as custodian of the records on behalf of the Board, those records were apparently "prepared, owned, and used at the instance of" the Board and, therefore, are public records within the meaning of KRS 61.870(2); the "nature and purpose" of the records, as opposed to their location, is determinative.
In a letter directed to Mr. Greg Goff on May 10, 2006, Robert P. Craig (also of Taft, Stettinius & Hollister) requested copies of the following:
1. All documents received from, on behalf of, or relating to Kentucky Speedway, including but not limited to correspondence, applications, financial projections, reports, or business plans;
2. All documents sent to Kentucky Speedway by or on behalf of the Board;
3. Any other documents concerning the Kentucky Speedway; and
4. Such documents as would show the amount of local, state, and federal grants and aid received by the Board, and the amounts and purposes for which such funds have been expended.
In conclusion, Mr. Craig indicated that his firm was "willing to pay the reasonable costs of copying these requested documents."
By letter directed to Mr. Craig on June 13, 2006, Joann Lawson Bingham, Airport Planner, responded to his request on HMB Professional Engineers, Inc. letterhead (Nashville, Tennessee, office), presumably on behalf of the Board, 1 including a "CD containing all the [Tri-County] Regional Airport documentation and correspondence." For Mr. Craig's "convenience," Ms. Bingham also provided "a full sized Airport Layout Plan Set." Enclosed with her response was an invoice signed by Darrell Tracy, Principal-in-Charge (Frankfort, Kentucky, office), dated June 9, 2006, "for engineering services for copy and review of files provided"; HMB/the Board assessed a fee of $ 350.00 (3.5 hours @ $ 100.00 per hour).
In response, Mr. Parsons advised Ms. Bingham that the "enclosed documentation was not responsive to the request and the fee of $ 350 violates KRS 61.874." As further observed by Mr. Parsons, his firm "did not request all records of the Board"; Mr. Craig requested "correspondence and other documents to and from the Board relating to the Kentucky Speedway" and "documents regarding income received by the Board and how that income has been expended." 2 According to Mr. Parsons, a fee of $ 350.00 for the materials supplied "is excessive, is in violation of KRS 61.874 and will not be paid." In support of this position, Mr. Parsons argues:
KRS 61.874 provides that an agency may establish a "reasonable" fee for supplying records obtained. A "reasonable" fee is defined as the "actual" cost of producing the record, not including staff time. The Kentucky Attorney General has generally not approved any fee in excess of $ .10 per page.
The CD that you sent included a significant number of documents, but they were not relevant to the request. If there are records that relate to the request that was made, we will reimburse for such copies in the amount of $ .10 per page.
Reiterating that the "bill is not in compliance with the requirements of KRS 61.874, nor is the CD responsive, Mr. Parsons initiated this appeal from the Board's disposition of his request by letter dated June 21, 2006. Because prior decisions of this office support Mr. Parsons' position, this office finds the Board's response both procedurally deficient and substantively incorrect.
Upon receiving notification of Mr. Parsons' appeal from this office, Stephen P. Huddleston, Board attorney, responded on behalf of the Board. In his view, there "would seem to be little reason for legitimate complaint by the requester" since the information requested was "provided in a manner allowing the requester to review all of same at its convenience and in the comfort of its own offices"; this would "seem to be an accommodation superior to the manner in which the agency might have lawfully responded." 3 It "may be" that Mr. Parsons requested "information that does not exist." 4 Because records that are responsive to Mr. Craig's fourth request "may not have been included," Mr. Huddleston mailed copies of same to Mr. Parsons, along with the requisite copy of his response, at the address provided. 5 In conclusion, Mr. Huddleston notes that the invoice in question "was not generated by the agency, nor does it direct payment to the agency. The invoice is the creation of HMB Engineering." Accordingly, the Board's position "is that if requester does not believe it owes it, then it shouldn't pay it." Contrary to Mr. Huddleston's implicit assertion, the location of the records does not relieve the Board of responsibility to comply with the Open Records Act.
As a public agency, the Board is obligated to comply with the procedural and substantive provisions of the Open Records Act, regardless of the requester's identity or his purpose in requesting access. More specifically, KRS 61.880(1) contains the procedural guidelines that agencies must follow in responding to requests. 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 held:
"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 [the Board'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. Noticeably absent from the Board's initial response are both of these mandatory elements; the Board does not attempt to cure this omission on appeal. To this extent, the Board's response is procedurally deficient.
Although Mr. Craig's request is dated May 10, 2006, the record contains no evidence that a response of any kind was directed to him before June 13, 2006, well beyond the permissible timeframe of three business days. 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), (5), and (6) none of which the Board invoked here. 6 02-ORD-165, p. 3; 05-ORD-277. 7 If any of the specified conditions exist, as appears to be the case here, the agency must " immediately so notify" the requester, and designate a place, time, and date for inspection "not to exceed" three days from receipt of the request, " unless a detailed explanation of the cause is given for further delay and the place, time and earliest date on which the public record will be available for inspection. " KRS 61.872(5) (Emphasis added); 02-ORD-165. See 05-ORD-064. It is incumbent on the Board, as it is on any public agency, "to make proper provision for the uninterrupted processing of open records requests." 01-ORD-140, p. 6. As repeatedly observed by the Attorney General, the procedural requirements of the Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 03-ORD-125, p. 5.
Guidelines for inspection of public records are codified at KRS 61.872. Of particular relevance here, KRS 61.872 provides:
(1) 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.
(2) Any person shall have the right to inspect public records. The official custodian may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected. The application shall be hand delivered, mailed, or sent via facsimile to the public agency.
(3) A person may inspect the public records:
In other words, the Open Records Act contemplates access to records "by one of two means: On-site inspection during the regular office hours of the agency, in suitable facilities provided by the agency, or receipt of the records from the agency through the mail. " 03-ORD-067, p. 4. Therefore, 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. Id. On the other hand, a "requester whose residence or principal place of business is outside the county where the public records are located may demand that the agency provide him with copies of the records, without inspecting those records, if he precisely describes the records and they are readily available within the agency. See, e.g., 95-ORD-52, 96-ORD-186." Id., p. 5; 04-ORD-011. 8 Although the record is unclear as to exactly where the records are maintained, Mr. Parsons' firm (Covington, Kentucky) appears to be in a different county than any of the possible locations; the Board does not challenge the specificity of the request nor does the Board object to providing copies in any event. However, the Board does seem to implicitly rely on the lack of actual possession in disassociating itself from HMB and disclaiming responsibility for the fee proposed by HMB.
In an unpublished opinion issued in 1999, the Kentucky Court of Appeals conclusively resolved this issue, holding that documentation of legal expenses billed to the City of Louisville by its private contract attorneys are public records for purposes of the Open Records Act, notwithstanding the fact that the documentation is not in the City's possession. City of Louisville v. Brian L. Cullinan, No. 1998-CA-001237-MR and Cross Appeal No. 1998-CH-001305-MR (Ky. App. 1999). Citing KRS 61.870(2), the Court observed:
There is no doubt that the records requested were prepared, owned, and used at the instance of the City. The records are nothing more than the routine billing documents generated by a law firm in representation of a client. Here, they are essentially the City's documents supporting fees to be billed and paid by the City for legal services rendered. Certainly, the City would not have been authorized to pay money to the contract law firm without the benefit of such records.
We are of the opinion that the question as to custody and possession of these records was answered by the contract law firm when it stated, "[w]e have not been granted permission by our clients to disclose to you the records in question." It is clear from this response that the law firm was holding the documents at the instance of and as custodian on the City's behalf, thus conforming to KRS 61.872(6). In the end, it is the nature and purpose of the document, not the place where it is kept, that determines its status as a public record. 66 Am. Jur. 2d Records and Recording Laws, []3 (1973).
City of Louisville at 4. See 04-ORD-123. In our view, this reasoning is equally applicable on the facts presented. 9 Regardless of where the records at issue are located, those records were "prepared, owned, and used at the instance of" the Board. Although HMB is currently acting as custodian on behalf of the Board," it is the "nature and purpose" of those records that determines their status as public records. 05-ORD-065, p. 7; 04-ORD-235; 04-ORD-125; 04-ORD-123. Numerous decisions of this office support the view that public records in the custody of a private agent are subject to public inspection unless properly excluded under one or more of the exceptions codified at KRS 61.878(1)(a) through (n), none of which the Board has invoked. See 00-ORD-207; 00-ORD-93; 99-ORD-194; 95-ORD-114. While this office still ascribes to the view that on rare occasion records identified in a request may not be public records because the records are in the custody of a private entity, this question must be approached with greater caution following the Cullinan opinion. In light of this determination, the remaining question is whether the Board subverted the intent of the Open Records Act short of denial of inspection by imposing an excessive fee. KRS 61.880(4).
To begin, Mr. Craig did not request, nor was the Board necessarily required to provide, a CD containing the responsive records rather than hard copies of same. Pursuant to KRS 61.874(2):
Nonexempt public records used for noncommercial purposes shall be available for copying in either standard electronic or standard hard copy format, as designated by the party requesting the records, where the agency currently maintains the records in electronic format. Nonexempt public records used for noncommercial purposes shall be copied in standard hard copy format where agencies currently maintain records in hard copy format. Agencies are not required to convert hard copy format records to electronic formats.
(Emphasis supplied). In addressing this issue, the Attorney General has recognized that "if nonexempt records exist in both standard electronic format and standard hard copy format, [which is apparently the case here,] the public agency must permit inspection of and copying in the format requested by the requester. " 99-ORD-12, p. 6; 02-ORD-65.
Because Mr. Craig initially agreed to "pay the reasonable costs of copying" the records requested, and, more specifically, Mr. Parsons later indicated that if responsive records exist, his firm "will reimburse for such copies in the amount of $ .10 per page," the necessary implication was that hard copies of the records were being sought. Accordingly, the Board did not have the discretion to provide the records in electronic format, even assuming the records were responsive; the obvious corollary is that costs associated with providing the records in another format cannot properly be assessed by the Board, directly or indirectly, nor can staff costs be recouped with either standardized format. To hold otherwise would contravene KRS 61.874(3), pursuant to which:
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 supplied). Because this office has long recognized that ten cents per copy is a "reasonable fee, " in accordance with
Friend v. Rees, Ky. App., 696 S.W.2d 325 (1985), further elaboration is unwarranted on this issue; 01-ORD-136, a copy of which is attached hereto and incorporated by reference, is controlling. See also 04-ORD-217.
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.
James E. ParsonsTaft, Stettinius & Hollister LLP1717 Dixie Highway, Suite 340Covington, KY 41011-4704
Gregg GoffTri-County Regional Airport BoardP.O. Box 149Carrollton, KY 41008-0149
Joann Lawson BinghamAirport PlannerHMB Professional Engineers, Inc.2 International Plaza, Suite 106Nashville, TN 37217
Steve HuddlestonP.O. Box 807Warsaw, KY 41095
Footnotes
Footnotes
1 Although the Board has not clarified how HMB came to be in possession of Mr. Parson's request, the logical inference is that Mr. Goff or someone else acting on behalf of the Board forwarded the request to HMB, and/or Ms. Bingham specifically, for response. Absent evidence to the contrary, this office must proceed on that assumption.
2 When responding to requests framed with sufficient precision to enable the custodian to identify and locate responsive records, a public agency must be more specific; 06-ORD-117, a copy of which is attached hereto and incorporated by reference, is controlling on this issue. Although this office generally disfavors broadly framed requests for "any and all" records that are responsive, the Board does not raise this argument and, more importantly, Mr. Craig's request is narrow enough in scope to enable the Board to identify and locate potentially responsive records in our view; the Board could have asked for clarification regarding the timeframe, etc. if necessary. In short, Mr. Craig's request is comparable to those found to be "specific and narrow enough" in 00-ORD-180 and 04-ORD-028. Compare 00-ORD-79; 99-ORD-14; 96-ORD-101.
3 While Mr. Huddleston is correct insofar as public agencies are not statutorily obligated to compile information or create a record in order to satisfy a request, as the Board apparently did here to some extent, Mr. Parsons did not request such action, nor did the Board deny access on this basis.
4 In OAG 91-101, this office held that a response issued by a public agency is deficient under KRS 61.880(1) if the response does not advise the requesting party whether a responsive record exists. Citing OAG 86-38, the Attorney General construed the obligation of the agency as follows:
KRS 61.880(1) requires that you advise the requesting party as to the existence of the documents requested. If the documents exist and inspection is denied, you should list each document which the city will not permit the requesting party to inspect and state how the exception to public inspection relied upon applies to the particular document withheld from inspection.
OAG 91-101, p. 3. In other words, if a record being sought for inspection does not exist, "the agency should specifically so indicate." OAG 90-26, p. 4. At issue in OAG 91-101 was a record specifically identified as "minutes of a meeting of tenured faculty members conducted by Dr. Fred Knapp in November, 1986"; the agency neither admitted nor denied the existence of the minutes. Of particular relevance here, this office concluded that unless the agency was unable to determine whether the requested minutes existed because the request failed to identify with reasonable particularity the meeting at which the minutes were taken, the agency was obligated to expressly advise the requesting party whether the minutes existed. Because the particularity of the firm's request is apparently not the basis for the Board's uncertainty, the Board must determine whether records matching the description provided exist and so advise the firm in order to comply with KRS 61.880(1). See 02-ORD-177.With respect to the degree of precision required in drafting a request, as well as the standard applied by this office in assessing the adequacy of a search for records, 04-ORD-028 (pp. 8-13), a copy of which is attached hereto and incorporated by reference, is controlling.
5 Any issues related to said records are moot. 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 held 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. Absent evidence to the contrary, this office assumes that Mr. Parsons has received copies of any existing records that are responsive to his fourth request; this office must therefore decline to issue a decision regarding those records.
6 If the person to whom the request is directed does not have "custody or control" of the records, he or she is obligated to notify the requester and furnish the name and location of the custodial agency per KRS 61.872(4). If the records requested are "in active use, in storage or not otherwise available," the official custodian must immediately notify the requester, and specify a place as well as the earliest date and time on which the records will be available for inspection to invoke KRS 61.872(5). If complying with the request will place an unreasonable burden on the agency, or the custodian believes that repeated requests are intended to disrupt essential functions of the agency, he or she may refuse to permit inspection or mail copies of the records pursuant to KRS 61.872(6); such a refusal must be sustained by clear and convincing evidence.
7 While the Open Records Act does not prescribe a reasonable time during which access must be afforded to public records, KRS 61.872(5) normally requires an agency to notify the requester and designate an inspection date not to exceed three days from agency receipt of the request. 00-ORD-188, pp. 6-7, citing 93-ORD-134, pp. 11-12. A determination of what constitutes a "reasonable time" for inspection turns on the particular facts presented, i.e., the breadth of the request and the number of documents encompassed, as well as the difficulty of accessing and retrieving those records. Id. Despite having two opportunities, the Board has offered no explanation of the cause for delay in responding and providing access.
8 See footnote 2 of 04-ORD-028 (attached) for discussion of the greater burden imposed upon requesters seeking to receive copies via mail.
9 Although City of Louisville v. Brian L. Cullinan is an unpublished opinion which cannot be cited or used as authority in any other case in any court of this state pursuant to CR 76.28(4)(c), it is indicative of the view held by the Court in the absence of a contrary opinion, as well as the view which the Court might subsequently adopt in a published opinion relative to the duties of public agencies to produce public records which are maintained somewhere other than the public agency.