Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The sole question presented in this appeal is whether the City of Mt. Vernon violated the Kentucky Open Records Act in requiring applicant Richard Courtney to make his own copies of certain receipts after permitting him to inspect the originals per KRS 61.872(3). In response to Mr. Courtney's appeal from the disposition of his undated request for copies of the specified receipts, Charles D. Cole, legal counsel for the City in this matter, correctly noted that KRS 61.872(1) specifically provides that "[a]ll public records shall be open for inspection by any person, except as otherwise provided by [the Act], and suitable facilities shall be made available by each public agency for exercise of this right." Citing KRS 61.874(1) and (3), Mr. Cole also correctly observed that the Act "explicitly provides public agencies with the option to either duplicate requested records themselves or permit the applicant to duplicate those records at a reasonable fee." Mr. Cole explained that on May 21, 2010, Mr. Courtney "reviewed certain receipts and made copies as he so desired, at a cost of 10 cents per copy[,]" which is "arguably not in excess of actual costs and is therefore reasonable" per KRS 61.874(3). 1 Based upon the foregoing, Mr. Cole asserted that the City "has met its statutory obligations under the Kentucky Open Records Act. " We concur.
As indicated, resolution of the sole question presented turns on the language 2 of KRS 61.874(1), pursuant to which:
Upon inspection, the applicant shall have the right to make abstracts of the public records and memoranda thereof, and to obtain copies of all public records not exempted by the terms of KRS 61.878. When copies are requested, the custodian may require a written request and advance payment of the prescribed fee, including postage where appropriate. If the applicant desires copies of public records other than written records, the custodian of the records shall duplicate the records or permit the applicant to duplicate the records; however, the custodian shall ensure that such duplication will not damage or alter the original records.
(Emphasis added.) In his letter of appeal, Mr. Courtney acknowledged that he was provided "with over 40 receipts & was told if I wanted copies I had to use their machine to make them." His only question is whether it was "legal for him [the Mayor] not to provide copies when requested."
Because KRS 61.874(1) is facially unambiguous, a lengthy analysis of this narrow question is unwarranted. As in 97-ORD-16, the agency provided the requester (applicant) "ample opportunity to view the [receipts] . . . [and] make the copies himself." Id., p. 3. The Open Records Act "does not require more." Id. Accordingly, this office finds that the City "acted consistently with the Open Records Act in requiring [Mr. Courtney] to view the requested records prior to receiving copies, and in affording him the opportunity to duplicate the [receipts] himself." Id.
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.
Richard CourtneyGary CromerCharles D. Cole
Footnotes
Footnotes
1 Both Friend v. Rees, Ky. App., 696 S.W.2d 325 (1985) and numerous decisions by this office confirm that a charge of ten cents per copy is reasonable within the meaning of KRS 61.874(3). See 01-ORD-136; 08-ORD-171.
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2 As with any decision involving statutory interpretation, our duty "is 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)(citation omitted). In discharging this duty, the Attorney General is not at liberty to add or subtract from the legislative enactment "nor discover meaning not reasonably ascertainable from the language used." Id. This office must refer to the literal language of the statute as enacted rather than surmising the meaning that may have been intended but was not expressed. Stogner v. Commonwealth, Ky. App., 35 S.W.3d 831, 835 (2000). In so doing, the Attorney General "must construe all words and phrases according to the common and approved uses of language." KRS 446.080(4); Withers v. University of Kentucky, Ky., 939 S.W.2d 340, 345 (1997).
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