Request By:
John N. HenryBrad McDowell
Shelby County PVA
Courthouse Annex
501 Washington Street
Shelbyville, KY 40065Don Guier
Executive Director
Office of Legal Services for Revenue
Kentucky Department of Revenue
200 Fair Oaks Lane
Frankfort, KY 40620Douglas Dowell
Attorney Manager
Office of Legal Services for Revenue
Kentucky Department of Revenue
200 Fair Oaks Lane
Frankfort, KY 40620Leslie Saunders
Office of Legal Services for Revenue
Kentucky Department of Revenue
200 Fair Oaks Lane
Frankfort, KY 40620
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 Shelby County PVA violated the Kentucky Open Records Act in charging John N. Henry an excessive fee to access the county tax roll in electronic form. Although the PVA is not statutorily required to make the records available in electronic form, if a public agency exercises its discretion affirmatively to provide online access, the fees charged shall not exceed the "cost of physical connection to the system and reasonable cost of computer time access charges" per KRS 61.874(6)(a) unless the records are requested for a commercial purpose, in which case KRS 61.874(6)(b) governs. Based upon the express language of KRS 61.874(6), this office finds that charging the same fee regardless of whether the records are requested for a commercial purpose or a noncommercial purpose in this context is not permissible under the Open Records Act. ; in other words, the fee in question is excessive as to members of the general public such as Mr. Henry.
On January 29, 2007, Mr. Henry directed an e-mail to Brad McDowell, Shelby County PVA, 1 requesting that he, "as well as the general public be afforded access to property records via Shelby County's Web Site" to the extent that "realtors, bankers and real-estate [sic] people are currently allowed." In addition, Mr. Henry asked the PVA to "create a fair fee structure designed for non commercial [sic] use." It was Mr. Henry's understanding from the website that "only realtors, bankers and real-estate [sic] people are allowed to access complete property information, while the general public has access to very limited information." Citing KRS 171.410 and 61.874(6), Mr. Henry asserted this practice was "illegal"; Mr. Henry also complained that "the cost for this Website Subscription service is unreasonable for the general public since [its] price structure is for commercial use and does not include non commercial [sic] use." Since Mr. Henry and members of the general public "would only do a few searches a year" as compared to bankers and realtors but would still be "paying high fees," Mr. Henry asserted that he would not be "on equal footing" with such individuals even if he was authorized to access the information available on the website. In conclusion, Mr. Henry asked the PVA to review 05-ORD-025 as well as the annotated outline, entitled "The Law of Open Records and Open Meetings," which is available on the website for this office, www.ag.ky.gov .
On January 31, 2007, the PVA responded via e-mail to Mr. Henry as follows:
Anyone may access the on line [sic] information on our web site. The general information is available at no cost to everyone. Detailed information is available for a subscription fee to everyone. Here is what I can tell you about our office and the web site: 1) all of our property records are open to public inspection and anyone is welcome to come to the office to do so 2) the web site is an optional tool that we use to make the information available for anyone who [cannot] make it to our office or chooses to access the information from their home or office 3) the web site is not mandatory and it does cost us money to maintain 4) our web site fee structure is at or below the fee structure approved by the state [5)] anyone can subscribe, access is not limited to realtors, bankers, and appraisers.
In conclusion, the PVA noted that he forwarded Mr. Henry's message to "our legal staff in Frankfort for review."
Later the same day, Mr. Henry acknowledged receipt of the PVA's prompt response but suggested "the opening statement be changed so that everyone would know that this information is available to them." 2 In addition, Mr. Henry reiterated that "fees for this service are for commercial use and do not address the general public, who may use it once or twice a year." Relying upon KRS 61.874(6) and 05-ORD-025, Mr. Henry argued that the "charges are unreasonable for individuals, who use the services once or twice a year, versus a commercial user, " who may use the website "hundred's [sic] of times a year." Having received no response, Mr. Henry sent another e-mail to the PVA on February 12, 2007, inquiring as to the status of his request. By letter dated April 4, 2007 (but received by the Office of Civil and Environmental Law in June), Mr. Henry initiated this appeal, challenging the wording of the opening statement on the PVA website and the fee schedule ($ 100.00 for 120 records per year), which, in his view, "does not take into consideration the general public who would use it a great deal less per year" thereby "making the records not as readily available to the general public ."
Upon receiving notification of Mr. Henry's appeal from this office, Leslie Saunders, Office of General Counsel, Finance and Administration Cabinet, responded on behalf of the Shelby County PVA. As observed by the Cabinet, the PVA maintains a website "which allows for online access to tax roll records in volume for a fee of $ 100 for the first 120 records. Mr. Henry wished to access this website to obtain a handful of records and has appealed because he is still being asked to pay the $ 100 fee." In support of this fee, the Cabinet argues:
First, it is worth noting that Mr. Henry is not being denied any record. He is able to receive a hard copy from the PVA's office either in-person [sic] (for copying costs) or through the mail (for copying costs and postage). His complaint stems from the expense of wanting to access those records through a system designed with commercial users in mind. Banks, realtors, appraisers, and other professionals often request large-volume [sic] records for commercial use. Instead of having these professionals come to the office, time can be saved on both ends through the website. KRS 61.874(6) allows a public agency to charge a reasonable fee for commercial access to such a database, which Mr. McDowell estimates to cost about $ 5000 a year to update alone. The database, which may be offered at Mr. McDowell's discretion per statute, is meant to cover this large-volume [sic] use. While the database is open to anyone (and is cheaper than the standard copying charges of 10 cents per page most state offices use as a rule of thumb if one uses it for such volume record gathering), it best serves the needs of the commercial user. Further, there is no practical way to weed commercial users from private users while on the website. 3
To clarify, the Cabinet notes that Mr. Henry is welcome to request any records from the PVA office "either in person or by mail and will receive the same information as is contained in the online records."
Although the initial determination of whether to provide online access is within the discretion of the PVA, the fees that may be charged once that discretion is exercised affirmatively are not; only the costs identified at KRS 61.874(6)(a) may be recouped absent a commercial purpose.
In 05-ORD-025, upon which Mr. Henry relies in support of his position, the Attorney General was asked to determine whether the Fayette County Clerk violated the Open Records Act in denying the request of the Rowan County Attorney for online access to "'scanned public records'" located on the County Clerk's website because online access was "'limited to Fayette County Attorneys.'" At pages 3-4 of that decision, a copy of which is attached hereto and incorporated by reference, the Attorney General summarized prior decisions of this office in reaffirming the principle that disparate treatment of applicants is not permissible under the Open Records Act; likewise, the Attorney General reiterated that neither the identity of the requester nor his purpose in requesting access may be used as a basis for denial. Although the instant appeal is factually distinguishable, our holding today is a logical extension of this reasoning.
Of particular significance, our analysis then shifted to KRS 61.874(6), the express and mandatory language of which is determinative regarding the sole issue presented. In 1994, KRS 61.874(6) was enacted to establish a third method (in addition to onsite inspection and receipt of copies through the mail) of providing access to public records under the Open Records Act - online access to public records in electronic form.
Pursuant to KRS 61.874(6):
Online access to public records in electronic form, as provided under this section, may be provided and made available at the discretion of the public agency. If a party wishes to access public records by electronic means and the public agency agrees to provide online access, a public agency may require that the party enter into a contract, license, or other agreement with the agency, and may charge fees for these agreements. Fees shall not exceed :
(Emphasis added). 4 As in 05-ORD-025, the parties to this appeal seem to agree that discretion regarding whether online access should be provided rests with the agency but disagree as to application of KRS 61.874(6) beyond that. More specifically, resolution of this appeal hinges on subsection (a).
When called upon to render a decision involving statutory interpretation, this office is required "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). "We are not at liberty to add or subtract from the legislative enactment nor discover meaning not reasonably ascertainable from the language used." Id . To determine legislative intent, this office must refer to the literal language of the statute as enacted rather than surmising what may have been intended but was not articulated. Stogner v. Commonwealth, Ky. App., 35 S.W.3d 831, 835 (2000). In so doing, we "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). Further, "it is neither the duty nor the prerogative of the judiciary [or this office] to breathe into the statute that which the Legislature has not put there." Commonwealth of Kentucky v. Gaitherwright, Ky., 70 S.W.3d 411, 413 (2002), citing Gateway Construction Co., supra.
As evidenced by the literal and unambiguous language of KRS 61.874(6)(a) and (b), the General Assembly intended to distinguish between the fees generally imposed for online access and those which may be imposed when the records are requested for a commercial purpose. Although public agencies are expressly authorized to require parties requesting online access to enter into a contract, license, or other agreement with the agency in either case, such as the "Subscription" agreement employed by the PVA, and to charge fees for same, any such fees "shall not exceed" the "cost of physical connection to the system and reasonable cost of computer time access charges." In contrast, "a reasonable fee based on the factors set forth" at KRS 61.874(4)(c) may be charged for agreements if the records are requested for a commercial purpose. When viewed in light of the aforementioned principles and KRS 61.874(6), the fee in question is not permissible under the Open Records Act.
Because Mr. Henry has denied having a commercial purpose in requesting to access the records online and the PVA has not refuted this assertion, the logical conclusion is that a fee which is admittedly designed for commercial users must be characterized as excessive when applied to him. In sum, the mandatory language of KRS 61.874(6) prohibits the practice currently being employed by the PVA; the current fee may be reasonable as to commercial users but is excessive as to members of the general public such as Mr. Henry.
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.
Footnotes
Footnotes
1 KRS 61.872 (2) provides:
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.
Given the express language of this provision, the PVA could have required Mr. Henry to submit his request in writing; e-mail is not a permissible method of delivery under the Open Records Act. Because the PVA waived this argument by responding via e-mail, further discussion is unnecessary.
2 Although Mr. Henry challenges the wording of the opening statement because the PVA indicates that his office "offers the tax roll for use by appraisers, realtors and banks" but does not include the general public, such an issue is not justiciable in this forum; however, the website currently indicates that the tax roll is available "for use by appraisers, realtors, banks and the general public. " A logical inference is that the PVA added this language to address Mr. Henry's concern sometime between April 4, 2007, and the present.
3 While technological issues may complicate the process, it stands to reason that a mechanism exists by which the website can be updated to contain appropriate cues with separate agreements and corresponding fee schedules based on the status of the individual requester.
4 In relevant part,KRS 61.874(4) provides:
(c) The fee provided for in subsection (a) of this section may be based on one or both of the following:
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.