Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Office of the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the City of Paintsville subverted the intent of the Open Records Act, short of denial of inspection, by imposing excessive fees for production of public records responsive to Paintsville Herald staff writer David A. Wheeler's May 24, 2011, request. 1 With the possible exceptions noted below, we find no violation of the Act in the city's disposition of Mr. Wheeler's request.
On May 24, Mr. Wheeler requested records reflecting the names and addresses of "businesses that are delinquent in the payment of their food/restaurant taxes," "delinquent occupational taxpayers," and "the total cumulative amount owed the city." One day later, the city agreed to provide Mr. Wheeler with "the names and addresses of those businesses which are delinquent with respect to the payment of restaurant taxes and occupational taxes as such information has been determined to be subject to public inspection. " The city explained that because no single compilation of the information existed, city employees would be "required to manually review the individual files maintained for each tax paying entity to separate the records which are exempt from public inspection from those which are properly subject to inspection, and then compile a listing of the nonexempt information." The city indicated that it would begin the process of compiling the nonexempt information upon receipt of payment from the newspaper in the amount of $ 300 "for preparation of the information," advising Mr. Wheeler that he could expect the records "within three weeks" of payment. Shortly thereafter, The Paintsville Herald initiated this appeal challenging the imposition of a $ 300 fee for records that "should be readily available in the city's computer system." In addition, the newspaper questioned the city's refusal to disclose the cumulative or combined amount of taxes owed.
In supplemental correspondence directed to this office after The Paintsville Herald initiated its appeal, the city relied on KRS 131.190, incorporated into the Open Records Act by KRS 61.878(1)(l), and as interpreted in 01-ORD-63 and 94-ORD-64, in reaffirming its position that "only the names and addresses of the delinquent taxpayers are subject to public inspection. " The city observed:
No legal authority has been found which addresses the specific issue as to whether a "total cumulative amount" of delinquent restaurant or occupational taxes owed a city is subject to public inspection, and the requesting party has not provided citations to any legal authority supporting its position that such information is not also exempt. In light of the authority cited above which establishes that the amounts of the delinquent taxes are exempt from disclosure, the City refused the request for the total cumulative amounts as any such calculated figure could be misleading with respect to the amounts attributable to any individual taxpayer.
Turning to the newspaper's objection to the $ 300 production charge, the city explained that it "does not have available any form of data, computer or otherwise, which contains an updated listing of the names and addresses" of delinquent taxpayers, that city employees would therefore be required to expend at least forty hours to gather the records, that $ 10 per hour represented a reasonable hourly rate, but that the city would reduce the total cost to $ 300 to "reflect a conservative estimation of the actual work involved." Because OAG 86-11, upon which the city relied in imposing this fee, predates relevant amendments to the statute, we conclude that the assessment of a $ 300 production fee subverted the intent of the Open Records Act short of denial of inspection.
The City of Paintsville properly acknowledged its obligation to disclose the names and addresses of delinquent restaurant and occupational taxpayers, but improperly attempted to impose staff costs for production of records containing that information based on its interpretation of OAG 86-11. 2 KRS 61.874(3) provides:
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. If a public agency is asked to produce a record in a nonstandardized format, or to tailor the format to meet the request of an individual or a group, the public agency may at its discretion provide the requested format and recover staff costs as well as any actual costs incurred.
This provision, amended in 1994, must be read in pari materia with KRS 61.878(4) which 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 rejected the City of Louisville's argument that separation of excepted material from records containing both excepted and nonexcepted material constituted production of records in a nonstandardized format, or records creation, for which it could recover both its medium and mechanical processing costs and staff costs. At page 2 of that decision, the Attorney General observed:
It is, of course, well settled that a public agency is not required to create a document that does not already exist in order to satisfy a request. See, e.g., OAGs 91-220, 91-101, 90-69, 90-26, 86-38. The agency may, of course, elect to do so, and under the Open Records Act as amended in 1994, recover its staff costs. KRS 61.874(3). We do not concur with the Division of Police in its view that the mere deletion of exempt information from an existing database results in the creation of an entirely new record. Requiring an agency to generate a previously nonexistent record upon request is not, in our view, equivalent to requiring it to redact exempt information from an existing record.
This principle applies to all records, regardless of physical form or characteristic, and whether they consist of a single page or 537 files. Pursuant to KRS 61.878(4), the city is obligated to separate and mask excepted information "hav[ing] to do with the affairs of the person's business," protected by KRS 131.190(1), and make the nonexcepted information available to Mr. Wheeler at a cost that does not exceed its medium and mechanical processing costs and that excludes the cost of staff required. Accord, 07-ORD-162; 08-ORD-216. The courts have determined that ten cents per page represents a reasonable charge for reproduction of public records under the Kentucky Open Records Act. Friend v. Rees, 696 S.W.2d 325 (Ky. App. 1985); 200 KAR 1:020 Section 3(1); 09-ORD-062.
Additionally, we find that if the city maintains a combined balance of restaurant and occupational taxes owed, it must provide Mr. Wheeler with the record or records reflecting the balance. The city's denial of this portion of his request proceeds from the assumption that public records are excepted from inspection unless legal authority to the contrary is cited. The law, however, is postulated on the contrary assumption that "[a]ll public records shall be open for inspection by any person" except as provided by KRS 61.878(1)(a) through (n). Pursuant to KRS 61.871, each of these fourteen exceptions must be strictly construed. 3 If they exist, records reflecting the cumulative or combined balance owed, though the balance may be "misleading" or "inaccurate," 4 do not reveal the affairs of a person's business in contravention of KRS 131.190(1) and must be disclosed. If records reflecting a cumulative balance of restaurant and occupational taxes owed do not exist, the city is not obligated to calculate the combined amount owed. "Requiring an agency to [perform mathematical calculations] upon request is far different from requiring it to excise [protected information] from an existing record," and the law does not impose the former obligation on the city. 95-ORD-82, p. 2.
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.
Distributed to:
David A. WheelerBob PorterJeffrey M. Baldwin
Footnotes
Footnotes
1 KRS 61.880(4) establishes the right of appeal to the Attorney General based on subversion of the intent of the Open Records Act. It provides:
If a person feels the intent of KRS 61.870 to 61.884 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 OAG 86-11 was issued prior to the 1994 omnibus revision of the Open Records Act and reflects an interpretation of the Act that is no longer supported by its language. It is, accordingly, modified.
3 KRS 61.871 thus provides:
The General Assembly finds and declares that the basic policy of KRS 61.870 to 61.884 is that free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others.
4 Disclosure of records under the Open Records Act does not constitute a guarantee of their accuracy or verifiability. See 06-ORD-018 and authorities cited at note 14.