Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the Office of the Boone County Sheriff subverted the intent of the Open Records Act, short of denial of inspection, by imposing a $ .20 per page reproduction charge for copies of redacted records. 1 On behalf of the Boone County Sheriff, spokesman Tom Scheben explained that the office "recop[ies] a redacted copy to ensure the personal information (i.e., date of birth and social security number) is completely obliterated."
Resolution of the issue on appeal turns on KRS 61.878(4) as interpreted in 95-ORD-82 and 08-ORD-183. That statute provides:
If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination.
In 95-ORD-82, this office held that the Louisville Division of Police could not assess a charge for redacting excepted information from the otherwise nonexcepted record, that it was "required to discharge this duty under KRS 61.878(4)," and that it must "bear the cost of redaction. " 95-ORD-82, p. 4. We recently reaffirmed this position in an appeal involving the Elsmere Police Department, quoting extensively from the earlier open records decision, and reiterating that "[i]f it is necessary to separate confidential from non-confidential information in order to permit the inspection, examination, or copying of public information, the agency shall bear the cost of such separation." These decisions are dispositive the issue on appeal.
If the redaction method employed by the Boone County Sheriff necessitates the creation of two photocopies, as described above, the first photocopy cannot be treated as a reproduction for which a fee may be assessed, pursuant to KRS 61.874(3), but must instead be treated as a cost of redaction which the office must bear pursuant to KRS 61.878(4). The Open Records Act authorizes public agencies to impose fees for copies based on those associated with medium and mechanical processing costs and postage, but does not authorize the imposition of fees for redaction, however effectuated. Accordingly, we find that the Office of the Boone County Sheriff subverted the intent of the Open Records Act, short of denial of inspection, by imposing a $ .20 per page reproduction charge for copies of redacted public records.
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 We concur with Mr. Henson in the view that the Sheriff's response did not satisfy the requirements found at KRS 61.872(5) relative to the agency's extension of time for production of the requested records. That statute provides:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, 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.
In his August 29 response, Mr. Scheber advised Mr. Henson that the agency would "need the additional time of one week to research [his] request." He did not provide "a detailed explanation of the cause for further delay," thereby precluding Mr. Henson and this office from assessing whether the additional time was indeed necessary.