Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Spencer County Board of Elections subverted the intent of the Open Records Act, short of denial of inspection, by imposing a fifty cents per page fee for copies of its December 19, 2013, meeting agenda. 1 Because KRS 64.019(2)(a) authorizes county clerks to "collect a per-page fee, not to exceed fifty cents per page, for providing legal size or smaller paper copies of records or documents maintained by the clerk, " and because KRS 117.035(3) directs that records of proceeding of the county board of elections be "kept at the office of the county clerk, " the December 19 meeting agenda is only accessible to the public through the county clerk who, coincidentally, is statutorily designated "chairman of the [board's] meetings." KRS 117.035(3). By virtue of this statutory scheme, the county clerk's role in responding to a request for records of the board of elections is inextricably intertwined with her role as chair of the board. She "maintains" records of the board and may therefore assess a per-page fee not to exceed fifty cents for copies of board records. The Spencer County Board of Elections therefore cannot be said to have subverted the intent of the Open Records Act by imposing excessive copying fees for records "kept" in the office of its chair, the Spencer County Clerk.
In a combined open meetings 2 and open records complaint directed to Spencer County Board of Elections Chair Lynn Hesselbrock, Lawrence Trageser questioned the imposition of a fifty cents per page fee for copies of the Board's December 19 meeting agenda. Relying on 200 KAR 1:020 Section 3, 3 which establishes a ten cents per page fee for copies, Mr. Trageser asserted that "the Board of Elections is an agency unto itself and the open records request was sent to the Official Custodian of Records, Board of Elections Chairwoman Lynn Hesselbrock, NOT the county clerk's office." Ms. Hesselbrock issued a timely written response in which she denied Mr. Trageser's allegation, referencing "the March 2007 edition by the Legislative Research Commission entitled 'Duties of Elected County Officials' chapter 5 pages 62 and 63 that state 'The county clerk serves as the chair of the county board of elections' and also 'records of the board are public and must be kept at the office of the county clerk. '" Additionally, she referenced KRS 64.019(1) and (2), authorizing the fifty cents per page copying fee. It was her position that "as county clerk, one of [her] duties is to chair the Board of Elections, and as such, [she] must maintain the records of the board in the county clerk's office, thus making those records subject to KRS 64.019."
On appeal, Mr. Trageser advances additional arguments in support of his belief that the copying fees imposed were excessive. He observes:
[A]lthough many agency records may be contained or stored within the county clerk's office, even required to be on file in the clerk's office, that does NOT mean that is the only site for records to be retrieved. Thus, Petitioner's request to the Board of Elections Chairwoman. As an example, a Fire District Board meeting minutes are located at the Fire Station Headquarters but are also required to be filed in the county clerk's office. Two separate entities.
Board of Elections Chairwoman Lynn Hesselbrock asserts that her position on the Board of Elections and her role as County Clerk are one and the same. The agenda for the Board of Elections is required to be kept in the clerk's office and nowhere else, says Hesselbrock. Petitioner asserts that the Spencer County Attorney is the Official Custodian of Records 4 and even the notification posted in front of the County Clerk's primary entrance door advertises that all open records requests must be sent to the Spencer County Attorney. Petitioner complied with that requirement, thus the records are handled through the normal procedures and costs of any other records request . . . . Petitioner asserts that he should NOT be subject to a .50 cents per page fee for the requested document because County Clerk Lynn Hesselbrock is NOT the Official Custodian of Records for the county and her role as the Chairwoman of the Board of Elections is not the same role or agency as the county clerk office.
Ms. Hesselbrock responds by submitting a copy of her office's open records rules and regulations identifying her as the official custodian of records maintained in the County Clerk's Office, per KRS 61.876(1)(b), and establishing a fifty cents per page copying fee, per KRS 64.019(2). On this basis, she asserts "that the minutes, agendas, or any other documents presented and reviewed at the Board of Elections meetings fit that description of records maintained by the county clerk, and as such are subject to the fee as described in the open records rules and regulations . . . ." Acknowledging the logic of Mr. Trageser's arguments, we nevertheless find that the language of KRS 64.019(2) and KRS 117.035(3) support the clerk's position.
KRS 64.019(2) does not distinguish between records that originate in the county clerk's office and records that are reposed there by statute. It is true that some records maintained by the county clerk are also maintained by the originating agency. Thus, as Mr. Trageser correctly observed, KRS 75.240 requires that "all material required to be kept by the secretary [of a fire district board] shall be kept on file in the office of the clerk of the county . . . ." A requester may elect to obtain a copy of the fire district meeting minutes from the district for the standard ten cents per page copying charge. Alternatively, a requester may elect to obtain a copy of the fire district's meeting minutes from the county clerk for a fifty cents per page copying fee. This option is unavailable for records of the Board of Elections.
As noted, the county clerk serves as the chair of the county board of elections and is required by statute to "keep" the board's meeting minutes. As chair, the clerk's relationship to the board is unique. Her office is mandated to serve as repository for the board's records. Although her position as clerk and chair are not "one and the same," they are inextricably intertwined in this regard. KRS 64.019(2) and KRS 117.035(3), operating in tandem, authorize the clerk to impose a fifty cents per page copying charge for this narrow subset of records maintained by her office. There is no alternative means of obtaining Board of Elections records, and the fifty cents per page copying fee cannot be deemed excessive.
With respect to Mr. Trageser's assertion that the Spencer County Attorney, and not Ms. Hesselbrock, is the official custodian of records for Spencer County, we find that the KRS 61.876 rules and regulations which Ms. Hesselbrock submitted to this office in support of her position resolve this confusion and confirm her role as official custodian of records in her agency's custody. Although the county attorney may be consulted on records access issues affecting the county clerk, the county attorney is no longer official custodian of records for the records of the county clerk, and the county can no longer require open records requesters seeking access to the county clerk's records to submit their requests to the Spencer County Attorney. The KRS 61.876 rules and regulations submitted by Ms. Hesselbrock clearly identify her as official custodian of the records of her office. This includes meeting agendas and other records of the Board of Elections, per KRS 117.035(3), for which she may assess a fifty cents per page copying fee, per KRS 64.019(2)(a). We therefore find that the Spencer County Board of Elections did not subvert the intent of the Open Records Act by imposing excessive fees.
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:
Lawrence TrageserLynn HesselbrockRuth A. Hollan
Footnotes
Footnotes
1 KRS 61.880(4) 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 The issues presented in the open meetings appeal that resulted from this complaint were addressed in 14-OMD-029.
3 Although the vast weight of legal authority supports Mr. Trageser's view that ten cents per page represents a reasonable copying charge for public records reproduced by all public agencies in response to an open records request, 200 KAR 1:020 Section 3 applies, by its express terms, only to "administrative agencies of state government." (Emphasis added); accord 99-ORD-69.
4 Citing 12-ORD-167 (approving designation of Spencer County Attorney as Official Custodian of Records for the Spencer County Fiscal Court).