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 Meade County Sheriff's Department subverted the intent of the Open Records Act, short of denial of inspection and within the meaning of KRS 61.880(4), by charging a fee of $ 10.00 for a CD containing six pictures of a specified motor vehicle accident. By letter dated July 26, 2013, attorney Jonathan S. Ricketts requested "copies of any and all records relating to any and all police [sic] of EMS runs made to Roadway No. US0031 W, Mile point No. 1.827, on July 17, 2013, in connection with the traffic collision report, Agency ORI Number 0820000, Local Code 13-0162[,]" including, but not limited to, "radio transmissions, records of radio transmissions, police reports and/or 911 calls made concerning the collision." In a timely written response, Office Manager Pam Knott advised Mr. Ricketts that she "was able to provide" him with "the pictures of this accident." However, she continued, "any and all 911 calls and radio transmission of this accident must be obtained from Meade County Dispatch." By letter dated August 7, 2013, Mr. Ricketts initiated this appeal challenging the $ 10.00 fee imposed for the CD "pursuant to KRS 61.870(7) and (8) and KRS 61.874(3)." Mr. Ricketts believed this fee "was not limited to media and mechanical processing and exclusive of staff costs per these statutes."
Upon receiving notification of Mr. Ricketts' appeal from this office, Meade County Attorney Jessica Brown Roberts responded on behalf of the Sheriff's Department. Ms. Roberts noted that Mr. Ricketts "is an attorney at law representing a party to a motor vehicle accident (Accident Report No. 13-0162)." Ms. Roberts argued that KRS 189.635 "[c]learly" removes accident reports from the scope of the Open Records Act which, in her view, means that his appeal should be "denied." Even assuming that his request "somehow" falls within the scope of the Act, Ms. Roberts continued, "a public agency may recover staff costs as well as actual costs it incurs if the request requires compiling information, creating documents, or specially tailoring a format. The request required that a CD of the photographs be created for viewing by Mr. Ricketts." Because Mr. Ricketts actually did not specify a preferred format in his request nor has the agency substantiated that $ 10.00 represents the "actual cost of reproduction, including the costs of the media and any mechanical processing incurred," but excluding "the cost of staff required," in accordance with KRS 61.874(3), despite having two opportunities to satisfy its burden of proof under KRS 61.880(2)(c), this office must conclude that $ 10.00 is an excessive fee, imposition of which subverted the intent of the Act within the meaning of KRS 61.880(4). The agency's position regarding application of KRS 189.635, which expressly governs accessibility of accident reports, but makes no mention of any investigative materials or photographs in particular, is unpersuasive.
In relevant part, KRS 189.635 provides:
(5) All accident reports filed with the Department of Kentucky State Police in compliance with subsection (4) above shall not be considered open records under KRS 61.872 to 61.884 and shall remain confidential except that the department may disclose the identity of a person involved in an accident when his or her identity is not otherwise known or when he or she denies his or her presence at an accident. Except as provided in subsection (9) of this section, all other accident reports required by this section , and the information contained in the reports, shall be confidential and exempt from public disclosure except when produced pursuant to a properly executed subpoena or court order, or except pursuant to subsection (8) of this section. These reports shall be made available only to the parties to the accident, the parents or guardians of a minor who is party to the accident, and insurers or their written designee for insurance business purposes of any party who is the subject of the report, or to the attorneys of the parties.
(Emphasis added.) The accident report identified as 13-0162 does not fall within subsection (4), pursuant to which:
Any person operating a vehicle on the highways of this state who is involved in an accident resulting in any property damage exceeding five hundred dollars ($ 500) in which an investigation is not conducted by a law enforcement officer shall file a written report of the accident with the Department of State Police within ten (10) days of occurrence of the accident upon forms provided by the department.
By its express language, all reports filed with KSP "in compliance with subsection (4) shall not be considered open records under KRS 61.872 to 61.884." (Emphasis added.) In other words, any issues regarding accessibility of those accident reports are not justiciable in this forum as KRS 189.635. However, "all other accident reports required by this section . . . shall be made available" to, among other specified individuals, "the attorneys for the parties." Such reports, including the accident report in dispute, and the information contained therein, with said exceptions, "shall be confidential and exempt from public disclosure." Thus, with regard to "all other accident reports" KRS 189.635 is merely a confidentiality provision, incorporated into the Open Records Act by operation of KRS 61.878(1)(l), pursuant to which "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly" are protected from disclosure under the Open Records Act. See, for example, 97-ORD-33 (interpreting KRS 197.025(1)); 98-ORD-78 (interpreting KRS 131.190); 04-ORD-252 (interpreting KRS 342.229); 08-ORD-177 (federal regulations incorporated into Act by KRS 61.878(1)(k)); 09-ORD-058 (interpreting KRS 341.190(3)); 10-ORD-080 (interpreting KRS 209.140 ); 11-ORD-168 (interpreting KRS 237.110(10)) KRS 189.635 restricts the parties to whom "all other accident reports required" under that provision shall be released as opposed to mandating that all reports not filed in compliance with subsection (4) also "shall not be considered open records."
Our duty in applying "is to ascertain and give effect to the intent of the General Assembly."
Beckham v. Board of Education of Jefferson County, 873 S.W.2d 575, 577 (Ky. 1994), citing
Gateway Construction Co. v. Wallbaum, 356 S.W.2d 247 (Ky. 1962). In so doing, the Attorney General is at liberty to neither add nor subtract from the legislative enactment "nor discover meaning not reasonably ascertainable from the language used." Id. Rather, 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 articulated.
Stogner v. Commonwealth, 35 S.W.3d 831, 835 (Ky. App. 2000). "[I]t is neither the duty nor the prerogative of the judiciary [or this office] to breathe into the statute that which the Legislature has not put there."
Commonwealth of Kentucky v. Gaitherwright, 70 S.W.3d 411, 413 (Ky. 2002), citing Gateway Construction Co. v. Wallbaum, above. See
Ryan v. Pennsylvania Life Insurance Company, 123 S.W.3d 142, 144 (Ky. 2004) (holding that the legal maxim expressio unius est exclusio alterius means that to express or include one thing implies exclusion of the alternative.) When viewed in light of these fundamental principles, KRS 189.635 distinguishes between "all other accident reports" and those filed "in compliance with subsection (4)" from an Open Records perspective. The Attorney General has resolved issues regarding application of subsections (5) and (8) of this confidentiality provision, such as whether the requester was among those granted access per (5) or the news-gathering organization had a commercial purpose and was not entitled to access under (8), in prior decisions and finds no basis here to depart from this approach. See, for example, 03-ORD-188; 06-ORD-024; 08-ORD-245; 13-ORD-019; 13-ORD-025. Because Mr. Ricketts represents a party to the accident, he is entitled to access the accident report per KRS 189.635(5) and the Sheriff's Department has not disputed that fact. Accordingly, the question presented is whether the Sheriff's Department subverted the intent of the Open Records Act in charging Mr. Ricketts a fee of $ 10.00 to provide him with copies of six photographs on a CD in response to his request.
KRS 189.635(7) authorizes the Kentucky State Police to "promulgate administrative regulations in accordance with KRS Chapter 13A . . . to set out a fee schedule for accident reports made available pursuant to subsections (5), (8), and (9)" of that provision. Those regulations are codified at 502 KAR 15:010, Section 5 of which provides that authorized parties may obtain Vehicle Accident Reports upon payment of a five dollar fee for "Paper copies" and a ten dollar fee for "Reports obtained via the Kentucky State Police website." Neither the statute nor the regulation extends authority to KSP, or any other agency, to charge a fee of $ 10.00 for any photographs taken of a vehicle accident. See 13-ORD-019 (finding 01-ORD-136 controlling and holding agencies subverted the intent of the Open Records Act, short of denial of inspection, by attempting to impose a five dollar fee for "CAD reports or landing zone reports" obtained under the Open Records Act) . The Sheriff's Department did not cite this regulation, perhaps because it contains no reference to photographs of a vehicle accident. See
Capitol Resources Corporation v. Department of State Police, 2007 WL 2332716 (Ky.App.)(accident reports "contain the name, address, and driver's license number of those involved in the accident, and a diagram and brief description of the accident itself"). 1
Upon review of a blank "Kentucky Uniform Traffic Collision Report," located independently via the Kentucky State Police website at http://www.kentuckystatepolice.org/text/faq.htm (after clicking on the link for www.kyonlinereports.com), this office discovered on the bottom of page one a blank where the investigating officer would indicate "yes" or "no" relative to "Photos" in addition to a blank for identifying the "Photographer Unit No." Accordingly, it remains unclear, given the lack of evidence presented on appeal, whether the requested photographs are deemed part of the accident report and therefore subject to the fee schedule found at 502 KAR 15:010, Section 5 of which authorizes the agency to impose a fee of $ 5.00 for the report itself, including the photographs, or the photographs are considered part of the related investigation and thus are subject to the reasonable fee provision of the Open Records Act. Our conclusion that a fee of $ 10.00 was excessive remains the same in either case.
Assuming the photographs are not, in fact, part of the subject accident report, and the fee schedule is therefore inapplicable, resolution of this issue turns on KRS 61.874(3), pursuant to which:
The public agency may prescribe a reasonable copying 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.
See also 200 KAR 1:020, Section 3(1)(copies of photographs . . . and other nonwritten material, . . . shall be furnished to any person requesting them on payment of a fee equal to the cost to the agency of producing the copies"). In
Friend v. Rees, 696 S.W.2d 325 (Ky. App. 1985), the Kentucky Court of Appeals held that 10 cents per page is a reasonable charge for the reproduction of standard hard copy records under the Open Records Act. For this reason, the Attorney General has consistently held that unless a public agency can substantiate that its actual cost for making photocopies, i.e. , reproduction, is greater than 10 cents per page, any copying fee which exceeds that amount is presumptively excessive. OAG 87-80; 92-ORD-1491; 94-ORD-77; 99-ORD-186; 01-ORD-136; 03-ORD-224; 04-ORD-217; 05-ORD-194; 06-ORD-147. See 08-ORD-021 (the courts, the legislature, and this office have "refused to countenance copying fees in excess of ten cents per page unless the agency substantiated actual costs greater than this amount, based exclusively on the cost of the medium and mechanical processing, or the agency was relying on a specific statutory enactment authorizing a higher copying charge"). By the same token, this office has recognized that a public agency must demonstrate that a fee imposed to provide a CD or DVD represents the actual cost of reproduction, based on media and mechanical processing costs, but excluding staff costs, or must recalculate its copying fee to conform to the criteria set forth at KRS 61.874(3). See 09-ORD-090.
However, KRS 61.874(3), commonly referred to as the "reasonable fee provision," must be read in conjunction with KRS 61.874(2)(a), which expressly provides:
Nonexempt public records used for noncommercial purposes shall be available for copying in either standard electronic or standard hard copy format, as designated by the party requesting the records, where the agency currently maintains the records in electronic format. Nonexempt public records used for noncommercial purposes shall be copied in standard hard copy format where agencies currently maintain records in hard copy format. Agencies are not required to convert hard copy format records to electronic formats.
In construing this provision, the Attorney General has repeatedly determined that " if nonexempt records exist in both standard electronic and standard hard copy format, the public agency must permit inspection of and copying in the format requested by the requester. " 99-ORD-12, p. 6 (emphasis added); 99-ORD-38; 02-ORD-65; 06-ORD-147; 07-ORD-038; compare 03-ORD-222 (recognizing that KRS 237.110(8), which authorizes release to public of information stored in Kentucky State Police database of conceal-carry license holders in hard copy format only, governs over KRS 61.874(2)(a) notwithstanding requester's preference).
As a corollary of this provision, the Attorney General has also recognized that if the nonexempt records exist in hard copy format only, agencies must only permit inspection of, and copying in that format. KRS 61.874(2) firmly establishes that "agencies are not required to convert hard copy format records to electronic format. " Unless the records being sought exist only in hard copy format, discretion rests with the requester, and not the agency, to determine whether copies must be provided in electronic or hard copy format. In other words, if the agency chooses to maintain the records in electronic format, only then is the agency required to produce the records in that format upon request and charge a "reasonable fee" based exclusively on the actual cost of reproduction, excluding staff costs. Conversely, 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 group, the public agency may at its discretion provide the requested format and record staff costs as well as any actual costs incurred." KRS 61.874(3).
In relevant part, KRS 61.880(2)(c) provides that the "burden of proof in sustaining the action shall rest with the agency"; imposition of charges for producing records in a nonstandardized format is no exception. Rather, a public agency such as the Sheriff's Department has the burden of proof regarding fees it charges for copying public records and must substantiate any departure from the amount deemed reasonable on the basis of the factors identified at KRS 61.874(3). 94-ORD-43, p. 3. The Sheriff's Department asserted on appeal that complying with Mr. Ricketts' request "required that a CD of the photographs be created for viewing" without further elaboration. However, a review of the request actually confirms that Mr. Ricketts did not specify a format in his written request. If the photographs did not currently exist in electronic (digital) format (which seems unlikely), and the agency exercised its discretion to tailor the format, staff costs were recoverable under KRS 61.874(2)(a). Conversely, if the photographs did exist in electronic format, staff costs were not recoverable per KRS 61.874(3) regardless of whether Mr. Ricketts specified that format or not. See 10-ORD-022 (because agencies maintain the records being sought in electronic format, "only the actual reproduction cost, which does not include the depreciated cost of the computer, or the cost of the software, the recorder or the batteries, but does include the cost of the 'media' or the CD itself - $.40, may be recovered"); 09-ORD-090; 06-ORD-147.
When viewed in light of KRS 61.874(2)(a) and (3), the limited facts presented lead us to conclude that $ 10.00 is an excessive fee, imposition of which subverted the intent of the Open Records Act within the meaning of KRS 61.880(4). See 07-ORD-130 (until agency substantiates the assertion that payroll and training records are not maintained in a standardized format, agency is not entitled to recover staff costs associated with honoring the request and fee is excessive in the absence of any supporting evidence). In the absence of any evidence to substantiate that the actual cost of reproducing six photographs on a CD, based on media and mechanical processing costs, 2 but excluding staff costs, equaled $ 10.00, the Sheriff's Department must recalculate its copying fee to conform to the criteria set forth at KRS 61.874(3) unless it establishes that such photographs were part of the accident report, in which case a fee of $ 5.00 was permissible under the fee schedule referenced above. In either case, a fee of $ 10.00 was impermissible. Although the Sheriff's Department is not statutorily obligated to produce records in a nonstandardized format, and may recover staff costs if doing so at its discretion, the record is devoid of evidence to justify such action here. See 07-ORD-130; 08-ORD-003.
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:
Jonathan S. RickettsPam KnottJessica Brown Roberts
Footnotes
Footnotes
1 Capitol Resources Corporation v. Department of State Police is an unpublished opinion, rendered on August 3, 2007, that may be cited for consideration if there is no published opinion that adequately addresses the issue. CR 76.28(4)(c).
2 In relevant part, KRS 61.870 provides:
(7) "Media" means the physical material in or on which records may be stored or represented, and which may include, but is not limited to paper, microform, disks, diskettes, optical disks, magnetic tapes, and cards; and
(8) "Mechanical processing" means any operation or other procedure which is transacted on a machine, and which may include, but is not limited to a copier, computer, recorder or tape processor, or other automated device.