Request By:
Randall Thomas
Graham Whatley, Esq.
Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of LaGrange imposed excessive copying fees inconsistent with the intent of the Open Records Act in the disposition of Randall Thomas' January 8, 2009, request for inspection of property tax information. For the reasons that follow, we find that the City committed at least a procedural violation of the Open Records Act. In addition, assuming that Mr. Thomas requested the records for a "commercial purpose" within the meaning of KRS 61.870(4)(a), we find that the City did not act inconsistently with the intent of KRS 61.874(4)(a) by charging $ 4.00 for each faxed or mailed item of property tax information. If, however, Mr. Thomas requested the records for a non-commercial purpose, we find that the fee charged was excessive and should be adjusted to no more than 10 cents per copy in accordance with KRS 61.874(3) and the prior decisions of this office.
In his January 8 request, Mr. Thomas identified a parcel of property and stated the following:
I am requesting the City tax information on the following property[.] Please give me the cost to fax this information to me and the cost to mail the information to me as well.
On January 15, 2009, the City of LaGrange issued the following unsigned letter to Mr. Thomas:
Per your request faxed to our office on January 8, 2009, the following is our reply. Any property tax information that is requested from our office by way of fax or mail carries a research charge of $ 4.00. If a person chooses to come in to our office to pickup information there is no charge.
On the same date, Mr. Thomas initiated an open records appeal, claiming that the $ 4.00 fee was excessive. Also that same day, Mr. Thomas went to LaGrange in person 1 and picked up the requested information at no charge.
The City of LaGrange's response to this appeal was submitted on January 23, 2009, by City Attorney Graham Whatley. The City makes the following arguments:
1. This appeal is moot because Mr. Thomas requested a written statement of the costs of faxing or mailing property tax information. The information was in fact provided as requested verbally on January 8, 2009 and in writing on January 15, 2009. The provision of this information was in conformance with the statute.
2. This appeal is moot because Mr. Thomas received the requested property tax information by coming to the office and receiving it without charge on or about January 15, 2009.
3. In the alternative, Mr. Thomas failed to fulfill the requirements of the Open Records Act when he requested in writing property tax information for a commercial purpose and did not reveal the information was to be used for a commercial purpose, KRS 61.874(4)(a).
4. Mr. Thomas when he provided a copy of the Attorney General's opinion(s), 2 at the worst attempted to defraud the City when he indicated the tax information was for a non-commercial purpose when in fact it was not. In the least was disingenuous with his legal position regarding commercial status and was attempting to get the information faxed to him at no cost.
5. The $ 4.00 fee for faxing is a reasonable fee under the statute.
6. Mr. Thomas violated the requirements of the statute when he acted in an abrasive and hostile manner placing an unreasonable burden on the City to produce the document. KRS 61.872(6).
To begin with, we believe a procedural violation of the Open Records Act occurred in this case. KRS 61.880(1) requires a public agency to respond to a request for inspection of records "within three (3) days, excepting Saturdays, Sundays, and legal holidays." KRS 61.872(5) requires that if records are not produced for inspection within three days from receipt of the application, a public agency must give "a detailed explanation of the cause ? for further delay" as well as where and when the record will be available. The City of LaGrange did not respond to Mr. Thomas at all until five days after receipt of his request (exclusive of the weekend), and provided no explanation, detailed or not, for the additional delay. Although the City asserts that its offices are closed on Fridays, Mr. Thomas' request was in fact received on a Thursday; therefore, even if KRS 61.880(1) allowed for Fridays to be excepted as well, the City's response would not have been timely.
We will next proceed to address the City's numerical arguments in the order in which they are made.
1. Mr. Thomas' request was for the property tax information itself, not merely for the cost to provide it. Accordingly, this appeal is not moot on that basis.
2. As an out-of-county requester, Mr. Thomas had the statutory right to obtain public records from the City by mail under KRS 61.872(3)(b). 04-ORD-084; 03-ORD-097. Since the City forced him to make a choice between traveling to LaGrange and paying the $ 4.00 fee, the issue as to the reasonableness of the fee is not moot.
3. In correspondence addressed to this office on January 26, 2009, Mr. Thomas states that he is a title examiner. Under KRS 61.870(4)(a), a "commercial purpose" includes "any use [of a public record] by which the user expects a profit either through commission, salary, or fee." In 07-ORD-015, the Attorney General indicated that performing title searches for profit would meet this definition of a "commercial purpose. " This office, however, does not have sufficient information in the record to determine conclusively whether Mr. Thomas made this particular request for a commercial purpose under KRS 61.874(4), and therefore we cannot determine whether he failed to disclose a commercial purpose.
4. Since we cannot determine whether Mr. Thomas had a commercial purpose for this request, we must proceed to address the propriety of the $ 4.00 fee under both commercial and non-commercial standards.
5. If Mr. Thomas had a commercial purpose, then the $ 4.00 fee was not unreasonable. KRS 61.874(4)(a) allows a public agency to set a reasonable fee for the release of documents, based on one or both of the "[c]ost to the public agency of media, mechanical processing, and staff required to produce a copy of the public record" and the "[c]ost to the public agency of the creation, purchase, or other acquisition of the public records. " KRS 61.874(4)(c). The City asserts that it purchases property tax information from the Oldham County Property Valuation Administrator's office for $ 17,000.00 per year and receives one or two commercial requests per day for such information. At the rate of $ 4.00 per request, the City would recoup only $ 2,920.00 per year, far less than the substantial cost of purchasing this information. Given these figures, we conclude that $ 4.00 is a "reasonable fee" under KRS 61.874(4)(a). 3
If Mr. Thomas did not have a commercial purpose, however, then the City's fee of $ 4.00 for a single page would be excessive. It has long been the position of the Attorney General that a "reasonable fee" for copies of public records under KRS 61.874(3) is ten cents per page unless the public agency can substantiate that its actual costs of reproduction exceed that amount. See, e.g ., 08-ORD-171; 08-ORD-006; 03-ORD-224; 01-ORD-136 (citing Friend v. Rees, 696 S.W.2d 325 (Ky.App. 1985)). The City has not made such a showing, nor does it argue that the $ 4.00 is attributable to the cost of transmitting the record as allowed by KRS 61.872(3)(b). Therefore, the fee for a non-commercial purpose should be ten cents per page.
6. The fact that Mr. Thomas may have personally "acted in an abrasive and hostile manner," either in writing or on the telephone, does not transform his simple application for records into one that "places an unreasonable burden" on the City within the meaning of KRS 61.872(6). This office has never held that a person's hostile attitude alone could annul his underlying right to obtain a public record, nor that it "violated [any] requirements of the statute." Whatever angry or abrasive remarks Mr. Thomas may have made are extraneous to the burden imposed by actually producing records in response to his request.
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 proceedings.
Footnotes
Footnotes
1 For purposes of this decision, we assume Mr. Thomas to have his residence and principal place of business in either Jefferson County or the State of Indiana.
2 Along with his request for records, Mr. Thomas provided the City with copies of some past decisions of this office, including 07-ORD-015.
3 The record is not clear as to why the City chooses not to impose this fee on commercial users who pick up the records in person. To condemn this discrepancy as unreasonable, however, would likely result only in the City's imposing the fee on those requests as well, thereby imposing additional burdens on access to property tax information.