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 Walton Verona Independent Schools subverted the intent of the Open Records Act, short of denial of inspection and within the meaning of KRS 61.880(4), 1 by imposing excessive fees for records that may or may not be responsive to Todd Bonds' January 2, 2014, request for copies of, inter alia , "[a]ll emails sent/received/forwarded to or from any '@wv.kyschools. us' address to any '(gspencer.kyschool. us' 2 address [sic]." We find that the district, having retrieved both responsive and potentially nonresponsive emails and stored them on a disc, having acknowledged that it has not reviewed or copied any of the emails in hard copy, and having therefore incurred only the cost of the disc, subverted the intent of Act in the manner alleged.
Through counsel, the district emailed Mr. Bonds on January 8, 2014, advising him that it would respond to his request "upon receipt of payment in the sum of $ 7.92." Mr. Bonds replied to the district's email by inquiring for which records it was requesting payment. The district responded, "The ones we are producing in response to your request." On January 20, the district emailed Mr. Bonds that an additional 16,430 pages had been retrieved and that the total sum owed was $ 1,641.92, plus postage. In the intervening period, the district generated a hard copy response 3 in which it denied numbered requests three, four, and five. 4 The district agreed to release "a copy of Kim Lake's personnel file, with certain information and documents redacted, " identifying KRS 61.878(1)(a), (i), (j), (k), and (l) as the statutory basis for redaction, but failed to identify the records or information withheld. 5 With reference to Mr. Bonds' request for "[a]ll emails sent/received/forwarded to or from any '@wv.kyschools. us' address to any 'spencer.kyschools. us' address," district counsel advised:
No such documents are in the possession of my client. In accordance with procedures adopted by the Kentucky Department of Education, e-mails are now stored on computers at the Kentucky Department of Education for 60 days. Upon expiration of this 60 day period, these e-mails are then sent to Microsoft Corporation for storage. Upon receipt of your request for these emails, my client forwarded a request to the Kentucky Department of Education for any documents that might be responsive to this request. My client has not heard from the Kentucky Department of Education at this time. Upon receipt of a response from the Kentucky Department of Education, I will supplement this response and provide any documents relative to this request.
My client has also inquired of Microsoft Corporation as to obtaining any e-mails responsive to your request prior to the 60 day time prior to receipt of your request on January 6, 2014. My client has been informed that, in order to obtain these e-mails a court order must be submitted. Accordingly, unless you provide such a court order, my client will be unable to obtain any e-mails prior to the 60 days preceding receipt of your request.
This hard copy response gave no indication what fee the district would impose for copies of Ms. Lake's file. As noted, however, a January 8 email from district counsel to Mr. Bonds stated that the district would produce records in response to his request "upon receipt of payment in the sum of $ 7.92." Given the disparity between the $ 7.92 fee originally quoted and the $ 1,641.92, plus postage, fee later quoted, Mr. Bonds initiated this appeal questioning the reasonableness of the latter fee. At no time prior to the initiation of his appeal did the district assert that Mr. Bonds' request was overbroad or that fulfillment of the request would impose an unreasonable burden on it.
In supplemental correspondence directed to this office, district counsel explained:
In my initial response on behalf of the Walton Verona schools to Mr. Bonds' January 3rd request, 6 the only documents available responsive to the same were a redacted copy of Kim Lake's personnel file. I explained that these records were available upon payment of $ 7.52 [sic.] 7 which included postage.
Restating the passage quoted above from his January 9 hard copy response to Mr. Bonds' request, he then observed:
The emails were subsequently retrieved and copied for redacting. These emails consisted of 16,340 pages which at 10 cents per page equaled $ 1,634.
To date, although numerous records have been requested and made available for Mr. Bonds, he has not paid any copying charge and thus he has not been given any records.
District counsel expressed the view that Mr. Bonds' "multiple requests for thousands of pages of records, which he then does not pay for, or review, are beginning to place an unreasonable burden on my client."
Pursuant to KRS 61.880(2)(c), 8 and to facilitate our review of the issues on appeal, on February 7, 2014, this office issued a written request for additional documentation from the district to substantiate its position. Like Mr. Bonds, we questioned how the district's search yielded 16,340 responsive records. Our questions elicited the following salient fact: As of March 10, 2014, when the district responded to our KRS 61.880(2)(c) request, the district had copied the emails to a disc but had neither reviewed nor reproduced in standard hard copy format any of the 16,340 pages retrieved from the Microsoft server. 9 Thus, in response to our question concerning the nature of redactions, prompted by the district's statement that 16,340 pages were "copied for redacting, " the district advised:
The cost of redacting such a large volume of records, at a time when Mr. Bonds has not indicated he is willing to pay the cost of copying the records, would place an unreasonable burden upon my client and would result in the disruption of other essential functions of the Walton-Verona Board of Education. KRS 61.872(6) . Accordingly, it has not been done at this time.
In response to our question concerning attempts made by the district to ensure that Mr. Bonds was not charged for duplicates of the same emails, the district stated:
At this point in time, no documents have been withheld nor information redacted, from the 16,340 pages of the emails requested by Mr. Bonds . . . . The physical copying and redacting of such a voluminous amount of documents would place an unreasonable burden upon my client in producing these records.
Finally, in response to our question concerning whether any of the 16,340 pages of email deemed responsive to Mr. Bonds' request were mass distributions to all school districts, district counsel advised:
It is assumed that some of the 16,340 pages of email deemed responsive to Mr. Bonds' request were emails that were distributed to all school districts. Some of those emails probably contain attachments . . . . Although this is my assumption, all 16,340 pages have not been physically inspected to verify this fact, as such an inspection would place an unreasonable burden upon my client and would result in the disruption of other essential functions of the Walton-Verona Board of Education at a time when Mr. Bonds has not indicated he still desires these records to be produced. KRS 61.872(6).
The district had incurred no actual costs in reproducing the emails, other than the minimal costs associated with copying the emails to a disc, at the time it sought to impose a $ 1,641.92 copying fee, plus postage, on Mr. Bonds.
This attempt to impose an excessive fee for copies where minimal actual costs had been incurred, 10 and where no attempt had been made to ascertain whether Mr. Bonds was amenable to receipt of the emails on a disc, 11 subverted the intent of the Open Records Act. The district was fully aware of the number of emails implicated by Mr. Bonds' request, and of the necessity of reviewing and redacting them prior to disclosure, when it agreed to honor his request upon prepayment of a $ 1,641.92 fee. KRS 61.874(3) restricts the fee that the district may impose to its actual costs 12 in copying the emails to a disc. It cannot now assert that production of the records constitutes an unreasonable burden in order to avoid discharging this duty, and may only recover the actual costs incurred in copying the emails to a disc. KRS 61.874(3).
Clearly, the $ 7.92 fee the district quoted to Mr. Bonds in its January 8 email was based on the actual costs incurred in reproducing the nonexempt portions of Kim Lake's personnel file. 13 Because no reference was made in that email to the nature of the records for which the fee was assessed, Mr. Bonds asked for which records the district was requesting payment. Rather than taking the opportunity to explain that the fee quoted was for reproduction of Ms. Lake's file, the district responded, "The ones we are producing in response to your request." In its hard copy response dated January 9, the district quoted no fee for reproduction of the records identified in Mr. Bonds' request. Understandably, he was surprised when, eleven days later, he received an email from the district advising him that the amount he owed for copies of the requested records was $ 1,641.92, plus postage.
We originally assumed that this fee represented the costs incurred by the district in reproducing the requested emails in standard hard copy format. To assess the reasonableness of the fee, we invoked KRS 61.880(2)(c) to elicit responses from the district to questions relating to its review of the records. Our questions focused on the presence of nonresponsive and duplicative records, among the 16,430 pages of email retrieved, for which Mr. Bonds could not be properly charged. The district's responses, along with discussions with counsel, confirmed that the emails were stored on a disc and had not been reproduced in hard copy or reviewed. The only "actual costs incurred" by the district was the cost of the single disc on which the emails were stored.
Mr. Bonds did not specify a particular format in which he wished to obtain the emails in his January 2 request. In a conversation with the undersigned, he expressed a willingness to accept the emails in electronic format. As noted above, KRS 61.874(2)(a) 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.
(Emphasis added.) Because the district "currently maintains the records in electronic format, " and Mr. Bonds has indicated that he wishes to obtain the emails in an electronic format, he is entitled to the emails retrieved by the district, and stored on a disc, for a fee not to exceed the actual cost of the disc, plus postage if applicable. 14 KRS 61.874(3). Assuming the fee imposed by the district for reproduction of the nonexempt records in Ms. Lake's personnel file does not exceed ten cents per page, plus postage if applicable, $ 7.92 does not constitute an unreasonable fee for those records. Mr. Bonds may also properly be assessed this fee. We find that the $ 1,641.92 fee the district attempted to impose on him for emails stored on a disc was not based on the actual costs the district incurred in reproducing the emails, as required by KRS 61.874(3), and was therefore excessive. The Walton Verona Independent Schools subverted the intent of the Open Records Act, within the meaning of KRS 61.880(4), in the disposition of Mr. Bonds' request.
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:
Todd A. BondsDonald J. Ruberg
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 Mr. Bond's request contains a typographical error. The second email address that appears in his request should read '@spencer.kyschools.us.'
3 Mr. Bonds disputes receipt of this response, dated January 9, 2014.
4 Mr. Bonds does not dispute the district's denial of these requests.
5 Although Mr. Bonds does not make this the central issue in his appeal, the district's response was procedurally deficient insofar as it did not "include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld." KRS 61.880(1) (emphasis added). In Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1994), the Kentucky Court of Appeals opined that KRS 61.880(1) requires "the custodian of records to provide particular and detailed information in response to a request for documents." In City of Ft. Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 852 (Ky. 2013) the Kentucky Supreme Court went one step further, declaring that "the agency should provide the requesting party with sufficient information about the nature of the withheld record (or categories of withheld records) . . . to permit the requester to dispute the claim [of exemption]." The district's response gave no indication of the nature of the records withheld or how the cited exceptions applied to those records.
6 The request Mr. Bonds submitted to this office pursuant to KRS 61.880(1) bears the date January 2, 2014. It is this request which we review.
7 A review of counsel's email confirms that the fee he quoted to Mr. Bonds was $ 7.92.
8 KRS 61.880(2)(c) provides:
On the day that the Attorney General renders his decision, he shall mail a copy to the agency and a copy to the person who requested the record in question. The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed.
9 In the same response, counsel corrected the statement that appeared in his January 9 hard copy response to the effect that, upon receipt of Mr. Bonds' request, the district "forwarded a request to the Kentucky Department of Education for any documents that might be responsive . . . ." It is therefore our understanding that it was the district's search that yielded 16,340 emails and not KDE's search.
10 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.
(Emphasis added.)
11 KRS 61.874(2)(a) 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.
(Emphasis added.)
12 KRS 61.874(3) states that "actual costs" may include "the costs of the media and any mechanical processing costs incurred by the public agency , but not including the cost of staff required." (Emphasis added.) "Media" and "mechanical processing" are defined at KRS 61.870(7) and (8), respectively as:
(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.
13 See note 6 above relating to the inadequacy of the district's disposition of this portion of Mr. Bonds' request.
14 The district must bear any costs associated with review and redaction of the records per 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.
See, e.g., 95-ORD-82; 01-ORD-114; 08-ORD-216.