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 Oldham County Sheriff's Office subverted the intent of the Kentucky Open Records Act, short of denial of inspection, by imposing an excessive copying fee to produce a "copy of the 2006 Property Tax Record" for a specified location. Assuming that Mr. Thomas requested the record(s) for a purpose that can properly be characterized as "commercial" within the meaning of KRS 61.870(4)(a), the OCSO did not subvert the intent of the Act under KRS 61.880(4) by charging twenty-five cents for each property tax bill requested since that amount constitutes a "reasonable fee" authorized by KRS 61.874(4)(a) based on the media and mechanical processing costs incurred by the agency in creating, producing, or acquiring the records per KRS 61.874(4)(c), as evidenced by the record. If, on the other hand, Mr. Thomas' purpose in requesting the record(s) is not commercial, the fee charged by the OCSO is excessive and should be adjusted to no more than 10 cents per copy in accordance with KRS 61.874(3) and governing precedent such as 01-ORD-136 and 03-ORD-224.
By letter directed to Sheriff Steve Sparrow on December 13, 2006, Mr. Thomas requested that a copy of a specified property tax bill be mailed to his address in Louisville, Kentucky; Mr. Thomas also questioned the OCSO policy of charging 25 cents, as opposed to 10 cents, per copy for "county tax records" in a separate letter to Sheriff Sparrow of the same date. Acknowledging receipt of the record(s) requested, but asserting that "neither cost per copy [nor] postage charge information was [conveyed]," Mr. Thomas initiated this appeal in a letter dated December 26, 2006, further explaining that he was in the OCSO on December 21, 2006, to obtain a copy of "county taxes on a different property," and once again received a "receipt for .25 cents for that copy." 1 Accordingly, Mr. Thomas now petitions the Attorney General "to enforce the Open Records ruling(s) that copies are .10 cents per copy for such documents and not higher."
Upon receiving notification of Mr. Thomas' appeal from this office, Ronald W. Jones, Chief Deputy Sheriff, responded on behalf of the OSCO. In relevant part, Chief Deputy Jones advises this office as follows regarding the procedural history:
In early to mid December 2006, Randall Thomas contacted Sheriff Sparrow and expressed dissatisfaction regarding the cost per copy for tax records. Sheriff Sparrow informed Mr. Thomas that it was [S]heriff's [O]ffice practice to charge .25 cents per copy for property tax bills. On or about 12/13/2006 Sheriff Sparrow received a letter from Mr. Thomas with another request for tax bill information and reiterating his concern about the .25 cent charge. On 12/18/2006, Sheriff Sparrow mailed Mr. Thomas a copy of the tax bill that he requested free of charge. On 12/21/06, Mr. Thomas came to the Sheriff's Office and requested another tax bill. Mr. Thomas was charged .25 cents for that record. . . .
Our office staff is familiar with Mr. Thomas and although he does not state so in his appeal, it is my understanding that the records Mr. Thomas has requested are for commercial use in the course of his commercial business.
Citing the definition of "commercial purpose" found at KRS 61.870(4)(a), 2 as well as the relevant procedural and fee provisions codified at KRS 61.874(4) and (5), 3 Chief Deputy Jones further explains:
The [OCSO] leases an electronic media on an annual basis from a private company for the purpose of the mechanical processing of tax database and billing records in order to assure convenience and availability to the State of Kentucky, the public, and commercial companies. Mechanical processing is defined as " any operation or other procedure which is transacted on a machine, and which may include, but is not limited to a copier, computer, recorder or tape processor, or other automated device. " The cost of leasing this system is approximately $ 12,500 per year. The OCSO administers approximately 25,000[] tax bills per year. Either the individual property owner or a mortgage processing company pays each property tax bill contained on this system. The cost of the media that contains the property tax data divided by the number of property tax bills maintained by the OCSO calculates to approximately .49-cents per bill. Media is defined in KRS 61.870(7) " as the physical material in or on which records may be stored or represented, and which may include, but is not limited to paper, microform, disks, diskettes, optical disks, magnetic tapes, and cards. " KRS 61.874(4)(c)(1) allows [agencies] to charge for staff costs for the production of public records used for commercial purposes. The OCSO does not currently charge for personnel costs for the production of commercial tax bills. One copy of all property tax bills is sent free of charge via US Mail to all property owners per year. It is the position of the OCSO that .25-cents per property tax bill is a reasonable cost for the reproduction of property tax bills requested for commercial purposes by walk-in clients.
Based upon the following, this office agrees with Chief Deputy Jones' assertion; however, the record does not contain sufficient evidence for us to conclusively determine whether Mr. Thomas did, in fact, have a commercial purpose in requesting access to such records. Assuming that is true, the OCSO did not subvert the intent of the Act by charging 25 cents apiece for copies since that fee represents the cost incurred by the OCSO for media and mechanical processing and creating, purchasing, or acquiring the records. Conversely, the OCSO did subvert the intent of the Act if Mr. Thomas requested the records for a non-commercial purpose.
Resolution of the instant appeal hinges upon the application of KRS 61.874. As with any decision involving statutory interpretation, our duty "is to ascertain and give effect to the intent of the General Assembly." Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 577 (1994), citing Gateway Construction Co. v. Wallbaum, Ky., 356 S.W.2d 247 (1962). In discharging this duty, the Attorney General is at liberty to neither add nor subtract from the legislative enactment "nor discover meaning not reasonably ascertainable from the language used." Id. To the contrary, this office must refer to the literal language of the statute as enacted rather than surmising the meaning that may have been intended but was not articulated. Stogner v. Commonwealth, Ky. App., 35 S.W.3d 831, 835 (2000). In so doing, the Attorney General "must construe all words and phrases according to the common and approved uses of language." Withers v. University of Kentucky, Ky., 939 S.W.2d 340, 345 (1997). Although independent research did not reveal any prior decision that is directly on point, the express language of KRS 61.874 speaks for itself when viewed in light of these governing principles.
In addressing the propriety of copying fees, our analysis necessarily begins 4 with KRS 61.874(3), which provides, in relevant part, as follows:
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 added). On a related note, the custodian "may require a written request and advance payment of the prescribed fee, including postage where appropriate." KRS 61.874(1); See 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"). As evidenced by the foregoing, the Open Records Act contains no provision mandating the waiver of fees for any party regardless of his or her financial status or purpose in requesting access. See 99-ORD-30 (no waiver of reproduction charges for inmates); 94-ORD-90 (no waiver of reproduction charges for media representative). "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; 05-ORD-025, pp. 2-3 (this office has long disapproved of disparate treatment of Open Records applicants . . .); 92-ORD-1136; OAG 91-129; OAG 89-86; OAG 82-394; OAG 80-641; OAG 79-582; OAG 79-546.
In Friend v. Rees, Ky. App. 696 S.W.2d 325 (1985), the Kentucky Court of Appeals held that 10 cents per page is a reasonable charge for duplication of standard hard copy records under the Open Records Act. For this reason, the Attorney General has consistently held that unless a public agency can substantiate that its actual cost for making photocopies, i.e., reproduction, is greater than 10 cents per page, any copying charge in excess of this amount is presumptively excessive. 06-ORD-147; 05-ORD-194; 04-ORD-217; 01-ORD-114; 99-ORD-186; 94-ORD-77; 92-ORD-1491; OAG 91-200; OAG 91-193; OAG 89-9; OAG 87-80; OAG 84-91; OAG 82-396; OAG 80-421. On this issue, 01-ORD-36 and 03-ORD-224, copies of which are attached hereto and incorporated by reference, are controlling; however, the reasoning of these decisions is not applicable in this case if Mr. Thomas requested the records in question for a commercial purpose.
It is Chief Deputy Jones' understanding that Mr. Thomas requested the records "for commercial use in the course of his commercial business [performing title searches]"; the record is devoid of evidence to the contrary. Although the express language of KRS 61.870(4)(b) excludes from the definition of "commercial purpose" use by the media (newspaper, periodical, radio, or television) or parties to litigation (or attorneys on their behalf), Mr. Thomas, to our knowledge, does not fall within either of these categories nor is this office at liberty to read into the definition of "commercial purpose" any exclusion for title searches or similar activities generally engaged in with an expectation of profit "either through commission, salary, or fee." Under such circumstances, the OCSO is authorized to prescribe a reasonable production fee based on one or both of the following criteria:
1. Cost to the public agency of media, mechanical processing, and staff required to produce a copy of the public record or records;
2. Cost to the public agency of the creation, purchase, or other acquisition of the public records.
Given the scarcity of authority interpreting these criteria, this office must rely upon the language of KRS 61.874(4)(c) itself, which expressly authorizes a public agency to recover the cost of media, mechanical processing, 5 and staff required to produce a copy of the record(s), and/or the cost incurred in creating, producing, 6 or acquiring the record(s). 7
On appeal, Chief Deputy Jones explains that the OCSO "leases an electronic media on an annual basis from a private company for the purpose of mechanical processing of tax database and billing records in order to assure convenience and availability to the State of Kentucky, the public, and commercial companies." Because the "cost of the media that contains the property tax data" ($ 12, 500.00 per year to lease the system) divided by the number of property tax bills generated by the OCSO (approximately 25,000 per year) equals approximately 49 cents per bill, the OCSO believes that 25 cents "per property tax bill is a reasonable cost for the reproduction of property tax bills requested for commercial purposes." In our view, the OCSO has amply substantiated the reasonableness of this fee; nothing appears in the record to raise the issue of whether the OCSO has acted in good faith. Absent reason to question the veracity of either Chief Deputy Jones or the OCSO, this office concludes that the OCSO has satisfied its burden of proof per KRS 61.880(2)(c) relative to imposition of the 25 cent fee based on the criteria set forth at KRS 61.874(4)(c). In other words, the fee is not excessive on the facts presented assuming that Mr. Thomas requested the records for a commercial purpose. Although the language of KRS 61.874(4)(b) is permissive, rather than mandatory, this office strongly encourages the OCSO to require a certified statement of purpose from requesters like Mr. Thomas in order to avoid, or at least minimize, future disputes of this nature.
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.
Randall ThomasSheriff Steven W. SparrowFiscal Court Building100 W. Jefferson StreetLaGrange, KY 40031
Chief Deputy Sheriff Ronald W. JonesFiscal Court Building100 W. Jefferson StreetLaGrange, KY 40031
John R. FendleyOldham County AttorneyFiscal Court Building100 W. Jefferson StreetLaGrange, KY 40031
Footnotes
Footnotes
1 Attached to Mr. Thomas' letter of appeal is a copy of the "delivery record" from the United States Postal Service documenting that Mary M. Froehlich signed to acknowledge receipt of his request by the OCSO on December 14, 2006, at 10:14 a.m. However, Chief Deputy Jones explains the delayed response as follows:
Even though in accordance with the provisions of KRS 61.876(3), the rules and regulations are displayed in a prominent location accessible to the public, Mr. Thomas did not make his request to the official custodian of records as required by KRS 61.872(2). Official custodian is defined in KRS 61.870(5) as the chief administrative officer or any other officer or employee of a public agency who is responsible for the maintenance, care and keeping of public records, regardless of whether such records are in his actual control. The manner in which the record was requested resulted in the Sheriff treating the request as a simple complaint regarding the fee charged rather than a non-commercial open record request. Mr. Thomas' original walk-in request was made in a manner consistent with other commercial enterprises that request tax bills for commercial purposes during our regular tax season. The manner of his request impeded the ability of the custodian of records to properly respond to Mr. Thomas pursuant to KRS 61.880(1).
Because the evidence of record substantiates this version of events, this office finds that a procedural violation did not occur. See 04-ORD-106 and 00-ORD-73.
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2 In accordance withKRS 61.870(4):
(a) "Commercial purpose" means the direct or indirect use of any part of a public record or records, in any form, for sale, resale, solicitation, rent, or lease of a service, or any use by which the user expects a profit either through commission, salary, or fee.
(b) "Commercial purpose" shall not include:
1. Publication or related use of a public record by a newspaper or periodical;
2. Use of a public record by a radio or television station in its news or other informational programs; or
3. Use of a public record in the preparation for prosecution or defense of litigation, or claims settlement by the parties to such action, or the attorneys representing the parties.
3 KRS 61.874(4) provides:
(a) Unless an enactment of the General Assembly prohibits the disclosure of public records to persons who intend to use them for commercial purposes, if copies of nonexempt public records are requested for commercial purposes, the public agency may establish a reasonable fee.
(b) The public agency from which copies of nonexempt public records are requested for a commercial purpose may require a certified statement from the requestor stating the commercial purpose for which they shall be used, and may require the requestor to enter into a contract with that agency. The contract shall permit use of the public records for the stated commercial purpose for a specified fee.
Subsection (c) will be discussed later in the decision.KRS 61.874(5) provides: It shall be unlawful for a person to obtain a copy of any part of a public record for a:
(a) Commercial purpose, without stating the commercial purpose, if a certified statement from the requestor was required by the public agency pursuant to subsection (4)(b) of this section; or
(b) Commercial purpose, if the person knowingly uses or knowingly allows the use of the public record for a different commercial purpose; or
(c) Noncommercial purpose, if the person uses or knowingly allows the use of the public record for a commercial purpose. A newspaper, periodical, radio or television station shall not be held to have used or knowingly allowed the use of the public record for a commercial purpose merely because of its publication or broadcast, unless it has also given its express permission for that commercial use.
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4 KRS 61.872(1) provides:
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.
Guidelines for inspection of public records are codified at KRS 61.872 (2) and (3); See 05-ORD-277 for the analysis employed by this office in determining whether a public agency has complied.Regarding the corollary right of receiving copies, KRS 61.874 provides:
(1) 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 records, 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.
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5 In relevant part,KRS 61.870 provides:
(7) "Media" means the physical material in or on which records may be stored or represented, and which may include, but is not limited to paper, microform, disks, diskettes, optical disks, magnetic tapes, and cards; and
(8) "Mechanical processing" means any operation or other procedure which is transacted on a machine, and which may include, but is not limited to a copier, computer, recorder or tape processor, or other automated device.
6 To clarify, KRS 61.874(4)(a) provides that if copies of nonexempt public records are requested for commercial purposes, a public agency may establish a reasonable fee based on, inter alia, media, mechanical processing, and "staff required to produce a copy of the public record (s)." KRS 61.874(4)(a) and (c) (emphasis added). In contrast, 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" based on media and mechanical processing costs but not exceeding the actual cost of reproduction, excluding the cost of staff required. (Emphasis added.) As in 04-ORD-054, this office attaches significance to the General Assembly's particular choice of words. Had the General Assembly intended to limit public agencies' cost recovery for commercial requests to the cost to "reproduce" the records, as opposed to the cost to "produce" the records, it could have employed the former term rather than the latter; it did so in limiting cost recovery for noncommercial requests to "the actual cost of reproduction. " Id., p. 5.
7 In 04-ORD-054, the Attorney General also noted that KRS 61.874(4)(c) differs markedly from KRS 61.874(3) insofar as the latter expressly prohibits a public agency from recovering "the cost of staff required"; this office further agreed that "creation" and "acquisition" are broad enough terms to encompass the "retrieval, redaction, and reproduction of responsive records, and ultimate review and disposition" of the request. Id., p. 5. To its credit, the OCSO does not currently charge staff costs for production of records used for commercial purposes despite being statutorily authorized to recover such costs; further discussion of this issue is therefore unwarranted.
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