Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Kentucky Transportation Cabinet violated or subverted the intent of the Kentucky Open Records Act in the disposition of Terry Bryan's request for "any and all copies of documents, instruction sheets, manuals, written rules and regulations" and other information relating to "the slope mowing, ditch mowing, and asphalt resurfacing in Nelson [C]ounty" as well as information regarding the "asphalt 'scratch patch' material laid down in strips in various spots of Howardstown [R]oad/[R]oute 247" (the "supposed purpose," who does it, etc.). Because Mr. Bryan did not "precisely describe" the records being requested in accordance with KRS 61.872(3), he is not entitled to receive copies by mail; however, the Cabinet is required to make any existing nonexempt records which are potentially responsive to his request available for inspection. To the extent Mr. Bryan also posed numerous questions regarding the aforementioned projects, asking for information rather than public records, 1 the Cabinet was not statutorily obligated to comply with his request. In the absence of any evidence that $ 25.00 represents the "actual cost of reproduction" for the responsive Maintenance Guidance Manual, imposition of that fee subverts the intent of the Act within the meaning of KRS 61.880(4). 2
By e-mail 3 dated October 30, 2008, Mr. Bryan submitted his request for information and records to Ann Stansel, Records Custodian, observing that his efforts "to glean this information from those in the E[lizabeth]town office has [sic] been met with minimal response and general stonewalling, so I will need another source for the purpose of receiving complete and full answers." In a letter dated November 7, 2008, Ms. Stansel responded to Mr. Bryan's request on behalf of the Cabinet, noting that although the agency had been "unable to identify specific documents to address all of" his questions, the "District personnel have provided this office with a listing of answers to those questions in an attempt to cooperate with and assist you (listing enclosed)." Because "[c]ertain responses mention the Maintenance Guidance Manual" she further advised that a copy of this Manual is available "for purchase at a cost of $ 25.00 per manual" by writing to "John Roberts, Office of Human Resource Management, 200 Mero Street, Frankfort, Kentucky 40622, or by calling (502) 564-4610." Dissatisfied with this response, Mr. Bryan subsequently initiated the instant appeal.
Upon receiving notification of Mr. Bryan's appeal from this office, Senior Counsel/Special Assistant J. Todd Shipp responded on behalf of the Cabinet. Citing KRS 61.872(1), which provides that "[a]ll public records shall be open for inspection by any person, except otherwise provided by the [Act]," Mr. Shipp argues that Mr. Bryan's request is "an Open Questions Request and not an Open Records Request." According to Mr. Shipp:
It is incumbent upon the applicant to describe and identify with enough specificity to allow the public agency to identify and locate the records. The agency is not obligated to create records to satisfy the request. The Open Records Act clearly does not require the agency to answer questions. Mr. Bryan in his letter of Appeal notes that his questions were not adequately responded to. Though we are not obligated to answer his questions, [the Cabinet] did its best to try and accommodate his questions. However, his request is not within the Open Records Act, and his appeal must be denied.
In conclusion, Mr. Shipp notes there "was one item that he requested that can be provided. The Maintenance Manual is available for a fixed fee of $ 25.00. KRS 61.874(1) provides that a record custodian may require advance payment for documents. The set fee is the cost of production and [the Cabinet] has advised him of such." Based upon the following, this office finds that prior decisions of this office partially validate the Cabinet's disposition of Mr. Bryan's request.
Early on, this office clarified that "[t]he purpose of the Open Records Law is not to provide information, but to provide access to public records which are not exempt by law." OAG 79-547, p. 2; 04-ORD-144. 4 For this reason, the Attorney General has consistently held that "requests for information as opposed to requests for specifically described public records, need not be honored." 00-ORD-76, p. 3, citing OAG 76-375; 04-ORD-080. In addressing this issue, the Attorney General has recognized:
Obviously information will be obtained from an inspection of the records and documents but the duty imposed upon public agencies under the Act is to make public documents available for inspection and copying. Public agencies are not required by the Open Records Act to gather and supply information independent of that which is set forth in public records. The public has a right to inspect public documents and to obtain whatever [nonexempt] information is contained in them but the primary impact of the Open Records Act is to make records available for inspection and copying and not to require the gathering and supplying of information.
04-ORD-080, p. 13, citing OAG 87-84. See also OAG 90-19; OAG 89-81; OAG 89-77. Of particular relevance here:
This office has long recognized that a public agency is not obligated to compile a list or create a record to satisfy an open records request. See, e.g., OAG 76-375; OAG 79-547; OAG 81-333; OAG 86-51; OAG 90-101; 93-ORD-50. At page 2 of 93-ORD-50, we observed:
[T]he Kentucky Open Records Act was not intended to provide a requester with particular "information," or to require public agencies to compile information, to conform to the parameters of a given request.
02-ORD-165, p. 4. Simply put, "what the public gets is what . . . [the public agency has] and in the format in which . . . [the agency has] it." Id. p. 5, OAG 91-12, p. 5. A review of the statutory language upon which these decisions are premised, including KRS 61.871 (providing that "free and open examination of public records is in the public interest"), KRS 61.872(1) (providing that "[a]ll public records shall be open for inspection by any person"), and KRS 61.872(2) (providing that "[a]ny person shall have the right to inspect public records" ) (emphasis added), validates this position. In other words, the Cabinet is not statutorily required to honor a request which is properly characterized as a request for information such as that portion of Mr. Bryan's request which is comprised of questions. However, the analysis does not end there.
"While it is certainly true that public agencies are not required to compile information to satisfy a request, we believe that agencies are required to make available for inspection, during normal office hours, records that might yield the information sought." 97-ORD-6, p. 5 (original emphasis). In keeping with this position, the Attorney General has noted that when a requester is unable to identify the records sought for inspection with adequate specificity, or wishes to extract information which has not already been compiled, he "may make a fishing expedition through public records on his own time and under the restrictions and safeguards of the public agency. " 98-ORD-17, p. 10, citing OAG 76-375, p. 3. Echoing this view, the Attorney General has consistently held that "one desiring that lists be made, or that broad categories of information be provided, must expend their own time digging the information out unless it has already been compiled. " Id., citing OAG 89-61, p. 5. Accordingly, the Cabinet exceeded its duty, to its credit, in providing written answers to questions asked; however, the Cabinet must provide Mr. Bryan with access to nonexempt records which are potentially responsive, if any exist, 5 so that he can extract the information himself, assuming that Mr. Bryan wishes to exercise this option. If no such records exist aside from the Maintenance Guidance Manual, the Cabinet should affirmatively indicate as much in order to resolve any lingering confusion regarding this issue.
That being said, the Cabinet did not violate the Act in declining to provide Mr. Bryan with copies of documents which might have been responsive to his request as to "any and all" records concerning the named projects by mail prior to inspection because Mr. Bryan did not "precisely describe" those records per KRS 61.872(3)(b). In 99-ORD-63, for example, this office was asked to determine whether the Breathitt County Clerk had violated the Act in refusing to honor a request for "any and all coal leases" containing specified name variations. Although the Clerk erred in failing to cite the applicable statutory exception, this office affirmed his disposition of the request since the requester had not satisfied the requirements of KRS 61.872(3)(b), and was therefore not entitled to receive copies of public records by mail. Id., p. 3. Such is the case here. Pursuant to KRS 61.872(3)(b):
(1) 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.
Based upon the evidence of record, it appears that Mr. Bryan resides and works in New Haven, Kentucky; the Cabinet is located in Frankfort, Kentucky. Accordingly, Mr. Bryan satisfies the threshold requirement of KRS 61.872(3)(b). Nevertheless, before Mr. Baughman is entitled to receive copies of the records he must "precisely describe[]" the records, and those records must be "readily available within the public agency. " As consistently recognized by this office:
KRS 61.872(3)(b) places an additional burden on requesters who wish to access public records by receipt of copies through the mail. Whereas KRS 61.872(2) requires, generally, that the requester "describe" the records which he wishes to access by on-site inspection, KRS 61.872(3)(b) requires the requester to "precisely describe[]" the records which he wishes to access by mail. In construing KRS 61.872(3)(b), this office has observed:
. . .
A description is precise if it is "clearly stated or depicted," Webster's II, New Riverside University Dictionary 926 (1988); "strictly defined; accurately stated; definite, " Webster's New World Dictionary 1120 (2d ed. 1974); and "devoid of anything vague, equivocal, or uncertain." Webster's Third New International Dictionary 1784 (1963). We believe that a requester satisfies the second requirement of KRS 61.872(3)(b) if he describes in definite, specific, and unequivocal terms the records he wishes to access by mail.
. . .
The third requirement (that the records be "readily available within the public agency" ) permits public agencies to avoid the duty to mail copies if the requested records are widely dispersed or otherwise difficult to access. In such instances, agencies would be forced to make extraordinary efforts to identify, locate, and retrieve the records in order to copy and mail them to the applicant. Consistent with the rule that "[public] agencies and employees are the servants of the people . . . , 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 76-375, p. 4, we believe that if the records which the applicant requests to access by receipt of copies through the mail cannot be readily accessed and retrieved within the public agency, the agency cannot be compelled to deliver copies to him though he resides and works in a county other than the county where the records are located, and he precisely describes them. Under these circumstances, the agency satisfies its obligations under the Open Records Act by making the records available for inspection during normal office hours. KRS 61.872(1); KRS 61.872(2); KRS 61.872(3)(a); OAG 90-19; 97-ORD-12.
99-ORD-63, p. 3, 4; 97-ORD-46; 97-ORD-177; 01-ORD-225; 01-ORD-185; 03-ORD-195; 05-ORD-152. In 97-ORD-46, the Attorney General noted that "it is . . . incumbent on the agency to indicate, in at least general terms, the difficulty in identifying, locating, and retrieving the requested records." Id., p. 5.
As in 99-ORD-63, 01-ORD-185, 3-ORD-195, and 05-ORD-152, the requester has failed to describe the records he wishes to access by receipt of copies through the mail in "definite, specific, and unequivocal" terms, and, therefore, fails to satisfy the requirements of KRS 61.872(3)(b). Because the records were not precisely described, the records cannot accurately be described as "readily available" within the Cabinet. Accordingly, the Cabinet may require Mr. Bryan to conduct an on-site inspection of the records prior to furnishing him with copies; the Cabinet may not deny the request entirely insofar as he requested access to documents rather than requesting information. Where a requester cannot identify the records sought with precision, or wishes to extract information that has not already been compiled, he must be permitted to "make a fishing expedition through public records on his own time and under the restrictions and safeguards of the public agency . . . ." OAG 76-375, p. 3.
In light of this determination, the remaining question is whether the Cabinet subverted the intent of the Act, short of denial, by imposing a fee of $ 25.00 for a copy of the responsive manual. Resolution of this issue turns on the application of 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.
In
Friend v. Rees, Ky. App., 696 S.W.2d 325 (1985), the Kentucky Court of Appeals held that ten cents per copy was a reasonable fee for reproducing standard hard copy records. This office has adopted the position of the Court in a long line of decisions. See, e.g., OAGs 88-74, 89-9, 91-98, 91-210, 92-79, and 92-ORD-1491, 93-ORD-44, 94-ORD-43, 95-ORD-82, 96-ORD-3, 98-ORD-88, 01-ORD-50; 01-ORD-114. In our view, the analysis contained in 01-ORD-136 is controlling on the facts presented; a copy of that decision is attached hereto and incorporated by reference.
Pursuant to KRS 61.876(3), the Finance and Administration Cabinet promulgated 200 KAR 1:020, which establishes the guidelines for all state administrative agencies in affording the public access to their public records. In relevant part, 200 KAR 1:020, Section 3(1) provides:
Copies of any written material shall be furnished, on request, to any person requesting them, on payment of fee of ten (10) cents a page for each record copies; copies of photographs, maps and other nonwritten material, and records stored in computer files or libraries, shall be furnished to any person requesting them on payment of a fee equal to the actual cost to the agency of producing the copies.
(Emphasis added.)
In sum, the courts, the General Assembly, and this office have refused to approve copying fees in excess of ten cents per copy unless the agency can substantiate that its actual costs are greater, based exclusively on the cost of the medium and mechanical processing, or the agency is relying on a specific statutory enactment authorizing a higher copying charge. See, e.g., 00-ORD-110 (county clerks' KRS 64.012 fee schedule is a specific statute which overrides the residual reasonable fee provision of the Open Records Act where applicable). This view is premised on the notion that "in approving a ten cents per page copying charge 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. 6. Because the Cabinet has the "burden of proof in sustaining the action" under KRS 61.880(2)(c), the agency must substantiate that its copying fee reflects only its actual costs per KRS 61.874(3); the record is devoid of any such proof or authority here. 00-ORD-74, p. 2; 92-ORD-1491. In the absence of any evidence to substantiate the belated assertion that $ 25.00 represents the "cost of production" for the Manual, this office must conclude that such a fee is excessive, and therefore subverts the intent of the Act within the meaning of KRS 61.880(4).
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 For example, Mr. Bryan improperly asked for information such as the "name of person operating the tractor/mower," the "length of service in doing that particular job," etc. In asking for training records "for operating the equipment" and "safety training records for the equipment used," in contrast, Mr. Bryan sought actual records; however, the Cabinet advised that no such records exist.
2 Pursuant to KRS 61.880(4):
If a person feels the intent of [the Open Records Act] is being subverted by an agency short of denial of inspection, including but not limited to the imposition of excessive fees or the misdirection of the applicant, the person may complain in writing to the Attorney General, and the complaint shall be subject to the same adjudicatory process as if the record had been denied.
3 In accordance with KRS 61.872(2), public agencies may require applicants to provide a "written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected." Also, the application "shall be hand delivered, mailed, or sent via facsimile to the public agency. " Because the Cabinet essentially waived this requirement, analysis of this procedural issue is unnecessary.
4 On this issue, the Attorney General has observed:
An open records request should not be drawn by artifice and cunning to create a trap for the unwary public agency. Conversely, the request should not require "the specificity of a carefully drawn set of discovery requests, so as to outwit narrowing legalistic interpretations by the government."
02-ORD-89, p. 4, citing 95-ORD-49, p. 5 (citation omitted). In the final analysis, this office assumes "a modicum of good faith from both parties to an open records appeal." Id., citing 96-ORD-223, p. 4 (citation omitted).
5 With regard to statutory obligations of a public agency upon receipt of a written request for nonexistent records, the analysis contained in 07-ORD-188 and 07-ORD-190 is controlling; a copy of each decision is attached hereto and incorporated by reference. To the extent Mr. Bryan may question the content of any records provided, such an issue is not justiciable in this forum; "questions relating to the verifiability, authenticity, or validity or records disclosed under the Open Records Act are not generally capable of resolution under the Act." 04-ORD-216, p. 3.