Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Russellville Independent School District subverted the intent of the Open Records Act within the meaning of KRS 61.880(4) by imposing an excessive fee, 1 including staff costs, for compilation of a "list of any and all Prime and Subcontractors whom [sic] performed work on the 7th/8th Grade School & Stevenson Elementary (Addition) projects." In a timely written response to Marty Owen's December 2, 2010, request, 2 Superintendent Leon Smith provided the requested list, attaching a "bill [in the amount of $ 34.66] for obligatory time to accumulate information required for a response to your request." By letter dated January 14, 2011, Chris Oney (presumably acting on behalf of Mr. Owens) initiated this appeal, challenging the imposition of staff costs by the District. Because the specified information was not available in the requested format, and the District therefore could have declined to honor the request or, in the alternative, required Mr. Owen to conduct his own "fishing expedition, " 3 this office finds no error in the agency's decision "to tailor the format to meet the request of an individual" per KRS 61.874(3). In accordance with KRS 61.874(3), the District exercised its "discretion to provide the requested format and recover staff costs as well as any actual costs incurred." Having substantiated those costs on appeal, the District ultimately satisfied its burden of proof under KRS 61.880(2)(c).
Upon receiving notification of Mr. Oney's appeal from this office, Jacinta F. Porter, of Bell, Orr, Ayers & Moore, P.S.C., counsel for the District, responded on behalf of her client, initially asserting that it "did not violate the Open Records Act by assessing a fee to the requester for the time it took to create a list of contractors and subcontractors that worked on specified school projects." Mr. Owen requested "only information," she continued, "not a specific document, which the school system did not have readily available in the format so requested." Accordingly, Ms. Porter concluded, the District "exercised its discretion to compile the list in the format requested and sought to recover staff costs for doing so. See KRS 61.874(3)."
In further support of the District's position, Ms. Porter correctly observed that "[t]he Attorney General's Office has held that a public agency is not obligated to compile a list or create a record when none [sic] such document exists, simply to satisfy an open records request. See 07-ORD-199 [citations omitted]." Rather, Ms. Porter advised, "[w]hen a requester asks that a list be made, he must expend his own time 'digging the information out unless it has already been compiled. ' 07-ORD-003, note 4 (internal citations omitted)." Quoting the language of KRS 61.874(3), Ms. Porter then reiterated that a document containing the requested information did not exist and the District "was not obligated to prepare that information for him." Relying upon this language, Ms. Porter correctly argued, "the Attorney General has recognized 'it is within the discretion of a public agency to tailor the format of records to conform to the parameters of a specific request, and to recoup both staff costs and actual costs in the event that it exercises its discretion affirmatively. ' 04-ORD-176, p. 6, citing 96-ORD-75 and 96-ORD-133." Exercising the discretion provided for at KRS 61.874, the District tailored the format to satisfy Mr. Owen's request, and "it was able to pass the cost of doing to [sic] onto the requesting party," Ms. Porter concluded, "which it did." Based upon the foregoing, Ms. Porter argued that no violation was committed.
Unable to resolve this matter based upon the limited evidence provided, this office subsequently invoked KRS 61.880(2)(c) and 40 KAR 1:030 Section 3 in asking Ms. Porter to "substantiate in greater detail the assertion that $ 34.66 represents a reasonable charge for 'staff costs' within the meaning of KRS 61.874(3)" and to "please elaborate as to what steps were necessary to create the requested list/compile the requested information. " Ms. Porter substantiated her client's position as follows:
Mark Coursey, the School District's Director of Finances, performed the majority of the work in creating the list. As stated above, the School District did not have a "list" of all contractors and subcontractors, as Mr. Owen requested. Furthermore, there was nothing that Mr. Coursey could simply "print off" that would satisfy Mr. Owen's request. Extensive research and review of all records and documents associated with the 7th/8th Grade School and Stevenson Elementary construction projects was required to comply with Mr. Owen's request. Mr. Coursey accessed the School District's accounting program to pull up all vendor payment records on the projects. He printed a list of the checks associated with payment of the projects, and then used that information to compile the vendor list. He then reviewed all the records to ensure that people who had received multiple payments were not duplicated in the list, and that no one who had received payment was left off. Mr. Coursey expended approximately between one half hour and one hour gleaning the necessary information from the records to compile the information in the format requested by Mr. Owen. However, when assessing a fee for his time, he charged only 30 minutes. Mr. Coursey is a certified public accountant. He earns $ 38.91 an hour at the School District, and payroll taxes on him equal $ .67 an hour. Thus, one half hour of his time represents $ 19.79 of the fee.
The remaining $ 14.87 of the fee stemmed from work performed by Superintendent Leon Smith's secretary, Ann Mosier, in preparing the list. Ms. Mosier typed the two page list and then prepared a responsive letter and invoice for Mr. Owen. She expended approximately 30 minutes on these tasks. Ms. Mosier earns $ 27.53 an hour, and payroll taxes on her are $ 2.21 an hour. Accordingly Mr. Owen was assessed the fee of $ 14.87 for the work performed by Ms. Mosier. These two fees together comprise the total fee assessed to Mr. Owen for compiling the list [$ 19.79 + $ 14.87 = $ 34.66].
Ms. Porter emphasized that the District staff "spent more than an hour of its time researching, verifying, and compiling a list into a format that was tailored to Mr. Owen's request." When responding to such a request, Ms. Porter observed, the District "was aware that KRS 61.874(3) gave it the discretion to provide the information in the requested format, and to recover staff costs for the labor and time it took to do so." Ms. Porter noted that her client "rounded down the time its employees spent on the project, and then assessed a fee based on the salaries of the individuals involved." This "calculated and precise method of assessing a fee is not only accurate for the cost of staff time spent on the project," Ms. Porter asserted, "it is also reasonable." When viewed in light of KRS 61.874(3), and prior decisions interpreting that provision, the facts ultimately presented lead us to agree.
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. Accordingly, 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 often 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 89-81; OAG 90-19.
Significantly, this office has long held, as Ms. Porter noted, "that a public agency is not obligated to compile a list or create a record to satisfy an open records request." 02-ORD-165, p. 4 (citation omitted). See, e.g., OAG 76-375; OAG 81-333; OAG 85-51; OAG 90-101; 93-ORD-50. In 02-ORD-165, the Attorney General specifically recognized that the 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." Id., p. 4, quoting 96-ORD-251. 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 (emphasis added). 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 sum, the District is not statutorily required to honor a request which is properly characterized as a request for information such as the request made by Mr. Owen. See OAG 90-100 (holding that a requester does not have a right to require that a list be made but if a list exists and is not otherwise confidential by law, he may inspect and obtain a copy of the list); OAG 92-99 (holding that agency did not err in advising requester that "the information she requested does not exist in list form, that it cannot make available that which it does not have, and that it is not required to create a document to satisfy a request"). See also 02-ORD-48.
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). 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. In light of these authorities, the District was correct in arguing that it could properly have required Mr. Owen to compile the information and create the requested list for himself; however, it opted to perform this function rather than deny the request or have Mr. Owen conduct his own search despite having no statutory obligation to do so. As previously indicated, KRS 61.874(3) comes into play under these circumstances.
In relevant part, KRS 61.874(3) provides:
If a public agency is asked to produce a record in a non-standardized format, 4 or to tailor the format to meet the request of an individual or group, the public agency may at its discretion provide the requested format and recover staff costs as well as actual costs incurred.
(Emphasis added.) The District exercised its discretion affirmatively in this case but initially failed to provide any explanation of how the $ 34.66 fee was justified. KRS 61.880(2)(c) provides that the "burden of proof in sustaining the action shall rest with the agency." This holds true with regard to not only invocation of the statutory exceptions to disclosure codified at KRS 61.878(1)(a)-(n), but also imposition of charges for producing a record in a nonstandardized format or, as the District did here, tailoring the format in order to satisfy a request. 07-ORD-130, p. 4.
In 01-ORD-158, the Attorney General examined this provision, observing:
Although they are not required to do so, public agencies may agree to extract electronically stored information to conform to the parameters of an open records request and in so doing, incur "actual costs" in addition to media and mechanical processing costs. At the state agency level, this would include programming and central processing unit (CPU) charges imposed on the agency by the Governor's Office of Technology to extract the information. Such charges would constitute an actual cost to the agency that could properly be passed along to the requester.
01-ORD-158, p. 4. Compare 05-ORD-116 (holding that given its "duty to make government more accessible by providing access to public records at a nonprohibitive charge, and its admission that a query currently exists that is capable of extracting [the requested] information from its database system, . . . the Personnel Cabinet subverted the intent of the [Act] by attempting to impose [a programming charge]"). This position mirrors the holdings in a series of decisions dating back to 1995 which recognize that it is within the discretion of a public agency to tailor the format of records to conform to the parameters of a specific request, and to recoup both staff costs and actual costs in the event that it exercises its discretion affirmatively. 5 95-ORD-82; 98-ORD-151; 99-ORD-68; 02-ORD-148. The District merely acted in accordance with KRS 61.874(3) and this line of decisions in doing exactly that. In light of the explanation it ultimately provided to substantiate that $ 34.66 represented actual staff costs, the Attorney General finds that it did not subvert the intent of the Act within the meaning of KRS 61.880(4) by charging Mr. Owen this amount.
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 Pursuant toKRS 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.
2 Mr. Owen agreed to "pay any reasonable copying and postage fees of not more than $ 50.00." He asked to be notified if the cost "would be greater than this amount." Although his willingness to pay this amount is, of course, not dispositive, it does imply that he preferred to have a list created, if none existed, and mailed to him as opposed to being required to search potentially responsive documents in person to compile the information being sought. It is unclear here whether the District confirmed as much before proceeding to compile the requested information.
3 When a requester 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.
4 Standardformat is defined at KRS 61.874(2)(b) as:
The minimum standard format in paper form shall be defined as not less than 8 1/2 inches x 11 inches in at least one (1) color on white paper, or for electronic format, in a flat file electronic American Standard Code for Information Interchange (ASCII) format. If the public agency maintains electronic public records in a format other than ASCII, and this format conforms to the requestor's requirements, the public record may be provided in this alternate electronic format for standard fees as specified by the public agency. Any request for a public record in a form other than the forms described in this section shall be considered a nonstandardized request.
5 Similarly, in a number of more recent decisions, the Attorney General has addressed the issue of public access to governmental databases, recognizing as a threshold issue that a "database is unquestionably a 'public record' as that term is defined at KRS 61.870(2)." 03-ORD-214, p. 6 (citation omitted); 04-ORD-176; 06-ORD-148; 07-ORD-130. In 02-ORD-89, the Attorney General reaffirmed the principle that a public agency can properly decline to reformat its database for the purpose of satisfying a request for information in a specially tailored format by virtue of KRS 61.874(3); however, this office also recognized that "[t]he agency's alternative . . . would be to release the entire database in the format in which it is regularly maintained." Id., p. 12. See 03-ORD-004.
Although a "database" was apparently not implicated here, a review of these decisions again confirms that regardless of the context, a public agency is not required to produce a record in a nonstandardized format or tailor the format of a record to comply with a request but may exercise its discretion affirmatively and recoup both actual costs and staff costs.
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