Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the City of Bonnieville violated, or subverted the intent of, the Kentucky Open Records Act in the disposition of W. John Bourne's request for "copies of the minutes of ALL Bonnieville City Council Meetings, regular, special, emergency and/or any other meetings where minutes were taken, from January 1, 2007 to present" as well as "a copy of your 5 Year Plan for [the] City of Bonnieville, unless it is already included in the minutes. " By failing to either provide Mr. Bourne with timely access to any existing records which are responsive to his request, in accordance with KRS 61.880(1), or provide a detailed explanation of the cause for delay and the date certain on which the records would be available, in accordance with KRS 61.872(5), the City violated the Act from a procedural standpoint. Insofar as the copying fee proposed by the City exceeds the actual cost of reproduction, as expressly prohibited by KRS 61.874(3), the City subverted the intent of the Act, short of denial, within the meaning of KRS 61.880(4); 01-ORD-136 is controlling on this issue.
In a timely written response, Bonita Hendren, Bonnieville City Clerk, advised Mr. Bourne that it would be "a couple of weeks before" she could "get the copies together." Ms. Hendren also indicated that she would "send another letter with the number of copies made at a charge of $ 1.00 per copy, plus postage determined by the postmaster." By letter dated November 26, 2007, Mr. Bourne initiated this appeal challenging the "untimely manner" in which the City planned to provide the records and the "excessive price" being charged for "copies of requested documents from the City Clerk. " In Mr. Bourne's view, "$ 1.00 per page is extremely high" and "2-3 weeks to make copies is also unreasonable."
Upon receiving notification of Mr. Bourne's appeal from this office, Charles D. Williams, attorney, responded on behalf of the City. Relying upon KRS 61.874(3), Mr. Williams correctly observes that "public agencies are allowed to charge a reasonable fee for making copies of public records. " According to Mr. Williams, "[e]very medical provider in the Commonwealth charges a dollar a page for medical and hospital records." In addition, "the statute does not appear to specify a timeline for tendering requested copies of public records. That said, two to three weeks is a reasonable timeline, because Bonnieville does not have a full-time clerk. Mrs. Hendren works only two days a week." 1 Given the express and mandatory language of KRS 61.872(5) and KRS 61.874(3), as construed in prior decisions by the Attorney General, this office must respectfully disagree with the City's position.
As a public agency, the City must adhere to procedural and substantive provisions of the Open Records Act regardless of the requester's identity or his purpose requesting access, generally speaking. More specifically, KRS 61.880(1) contains the procedural guidelines which a public agency must comply with 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. 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.
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 [the Cabinet'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). Noticeably absent from the City's initial response are both of these mandatory elements. Although the City responded to Mr. Bourne's request dated November 16, 2007, by letter dated November 21, 2007, (three business days later), which is a timely response, the City Clerk advised that it would be "a couple of weeks" before she could "get the copies together" without further explanation. To this extent, the City violated KRS 61.872(5). See 07-ORD-158 (Finance and Administration Cabinet's response that it was "in the process of filling" the request and expected to fill it "within the next two weeks" did not comply with KRS 61.872(5)); 01-ORD-38 ("KRS 61.872(5) envisions designation of the place, time, and earliest date certain, not a projected or speculative date, when the records will be available for inspection. ").
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)," 2 neither of which the City invoked here. 02-ORD-165, p. 3. Unless the person to whom the request is directed does not have custody or control of the records, or the records are in active use, in storage, or are not available, the agency is required to notify the requester of its decision within three working days, and to afford the requester timely access to the requested records. Id., citing 93-ORD-134. If, on the other hand, any of those conditions exist, 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); 02-ORD-165.
On appeal, the City asserts that approximately "two to three weeks is a reasonable timeline" based solely on the fact Mrs. Hendren "works only two days a week." Contrary to Mr. Williams' assertion, "timely access" to public records has been defined as "any time less than three days from agency receipt of the request." OAG 84-300, p. 3. Although the Act does not prescribe a reasonable time during which access must be provided, "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." Id.; 93-ORD-134, p. 12. 3 However, when a request is made for voluminous records covering an extensive period of time, "such time limitations are virtually impossible to meet." 93-ORD-134, p. 12.
In short, Mr. Bourne's request for the minutes of City Council meetings from the past year cannot properly be characterized as voluminous or extensive nor does the City contend as much, relying instead upon the part-time status of the City Clerk as the basis for delaying access. 4 A reasonable extension of time may have been justified on the unique facts presented; however, it is incumbent on the City, as it is on any public agency, "to make proper provision for the uninterrupted processing of open records requests." 01-ORD-140, p. 6. Any other interpretation of the Act would be "clearly inconsistent with the natural and harmonious reading of KRS 61.870 considering the overall purpose of the [Act]," Frankfort Publishing Co., Inc. v. Kentucky State University Foundation, Inc., Ky., 834 S.W.2d 681, 682 (1992), and the recognition that "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). Neither the initial nor the supplemental response of the City contains the specificity envisioned by KRS 61.872(5) ; the City erred in failing to either provide Mr. Bourne with "timely access" to precisely described public records which are readily available within the agency or provide a detailed explanation of the cause for delay and the earliest date certain on which the records would be available.
In addressing the claim that an unsubstantiated charge of $ 1.00 per copy is "extremely high," the City paraphrases but misconstrues the mandatory language of KRS 61.874(3), the relevant provision, asserting that "[e]very medical provider in the Commonwealth charges a dollar a page for medical and hospital records." Regardless of whether that assertion is accurate or not, how much private medical providers charge is completely irrelevant under the Open Records Act. 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 the reproduction of standard hard copy records. 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; 03-ORD-224; 01-ORD-114; 99-ORD-186; 94-ORD-77; 92-ORD-1491; OAG 91-200; OAG 91-193; OAG 89-9; OAG 87-80.
Noticeably absent from both of the City's responses is any explanation to justify imposition of a $ 1.00 fee. Because the City has failed to substantiate that $ 1.00 for each page reflects the actual costs incurred in reproducing the requested public records, this office must conclude that the fee is excessive and subverts the intent of the Act within the meaning of KRS 61.880(4). On this issue, the reasoning contained in 01-ORD-136 is controlling; a copy of that decision is attached hereto and incorporated by reference. In approving a charge of ten cents per page, both the courts 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." 01-ORD-136, p. 7. Unless the City can substantiate that the actual cost of reproducing the records is equal to $ 1.00 per copy, the City must recalculate its copying fee to conform to the requirements of KRS 61.874(3) as construed in 01-ORD-136 and the authorities upon which that decision is premised.
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 Because neither Mr. Williams nor Ms. Hendren specifically address the Five Year Plan requested by Mr. Bourne, this office must assume that same is encompassed by the minutes.
2 KRS 61.872(4) provides:
If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.
3 Guidelines forinspection of public records are codified at KRS 61.872. In relevant part, KRS 61.872 provides:
(3) A person may inspect the public records:
(a) During the regular office hours of the public agency; or
(b) By receiving copies of the public records from the public agency through the mail. The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency. 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.
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 a public 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. Mr. Bourne has apparently satisfied this requirement. See also 06-ORD-155 (holding that a public agency may require a requester to conduct an on-site inspection of the records prior to furnishing him with copies if the records are not "readily available, " but may not deny the request entirely). For a discussion of the greater burden imposed upon requesters seeking to receive copies through the mail, see 02-ORD-26, p. 6.
4 Early on, this office recognized that every request to inspect a public record "causes some inconvenience to the staff of the public agency. No doubt some state, county and local agencies have found it necessary to employ additional staff since the enactment of the Open Records Law in order to comply with provisions of the law. . . ." OAG 77-151, p. 3. Nevertheless, the Attorney General has also long recognized that: "State agencies and employees are the servants of the people as stated in the Preamble to the Open Records Act, but they are the servants of all the people and not only of persons who may make extreme and unreasonable demands on their time." OAG 76-374, p. 5. That being said, the legislative intent is that "public employees exercise patience and long-suffering in making public records available for public inspection. " Id.
To clarify, a public agency "cannot ignore, delay, or postpone its statutory requirements under the Open Records Act. " 02-ORD-165, p. 3. In the event the official records custodian is absent, "an individual should [be] appointed as acting custodian to respond to open records requests in a timely fashion." 94-ORD-86, p. 4; 02-ORD-165, p. 3. Neither the press of business nor the absence of the official custodian justifies a delay in providing access to public records. Id.
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