Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this open records appeal is whether the Walton-Verona Independent Board of Education violated KRS 61.880(1) in failing to respond in writing, and within three business days, to Todd Bonds' April 17, 2014, request and in denying numbered requests three, four, and five as improperly framed requests for information rather than properly framed requests for existing public records. Additionally, we are asked to determine if the board subverted the intent of the Open Records Act, short of denial of inspection, by imposing excessive fees for reproduction of records responsive to numbered requests one and two. 1 We find that because it properly characterized requests three, four, and five as requests for information, the board did not violate the Act in denying those requests. Nor did the board subvert the intent of the Act, short of denial of inspection, by imposing excessive fees for copies of records responsive to requests one and two. Because Mr. Bonds did not designate that he wished to obtain responsive email in electronic format, the board reproduced the records in hard copy format and imposed a ten cents per page fee. Existing legal authority supports the imposition of a ten cents per page fee for records reproduced in hard copy format. However, we find that the board violated KRS 61.880(1) by failing to issue a timely written response to Mr. Bonds' request. 2
In his April 17 letter to Dr. Robert Storer, the board's custodian of records, Mr. Bonds requested "an opportunity to obtain copies of public records" identified as follows:
1. All email conversations sent/received/forwarded to or from mark.krummen@wv. kyschools. us to todd.bonds@wv. kyschools. us".
2. All email conversations sent/received/forwarded to or from kyle.bennett@wv. kyschools. us to "todd.bonds@wv. kyschools. us".
3. All employees whom [sic] were issued a cell phone from the district since May of 2011 and the cell phone coverage provider and the number to the cell phones.
4. The amount of all monetary donations to the district since 2008, including those from Steve Cauthen.
5. The amount of monies in fees paid by your school board to Donald J. Ruberg and or any associates of law firm since December 1, 2013.
Mr. Bonds did not designate whether he wished to obtain copies of emails responsive to requests one and two in hard copy or electronic format. On April 28, the board emailed its response to Mr. Bonds' request, 3 advising him that a hard copy of that response would follow by U.S. Mail. 4 Mr. Bonds thereafter initiated this appeal, attaching a copy of the board's April 28 response.
In that response the board agreed to produce 280 records responsive to requests one and two, upon prepayment of copying and postage fees in the amount of $ 33.72, but denied requests three, four, and five as requests for information "as opposed to request[s] for specifically described records." In supplemental correspondence directed to this office, the board advanced additional legal bases for denial of requests three, four, and five, and reaffirmed its belief that these requests were improperly framed requests for information.
With reference to Mr. Bonds' allegation that the board subverted the intent of the Open Records Act by imposing excessive fees, board counsel responded:
The Board performed a search for the relevant emails. This search disclosed 280 pages of the same. Each of these pages had to be printed out and redacted as they could potentially involve ongoing investigations, personnel issues, litigation matters, other issues involving individuals' rights or privacy, preliminary opinions, and student/employee disciplinary issues. Each of these documents would had [sic] to be reviewed and redacted by the individuals sending and receiving the same, the school superintendent, and the Board attorney. The documents were printed out in unredacted form, redacted, and copied in a redacted version for Mr. Bonds. It is these redacted physical copies that have been made available to Mr. Bonds. Mr. Bonds has only been charged for the final copies of the redacted documents. He has not been charged for all the copies made in furtherance of the redacting process. He was charged 10 [cents] per page for the final redacted copies as well as for the postage involved in mailing the same to Mr. Bonds. In summary, although these e-mails exist in electronic format, they could not be produced to Mr. Bonds in such a format. The e-mails had to be redacted prior to their production to protect the rights of the many individuals involved or mentioned therein. Mr. Bonds has only been charged for postage and the copies. He has not been charged for the considerable expense involved in the redacting process.
Responding to Mr. Bonds' allegation that the board's response violated KRS 61.880(1) because it was not issued within three business days, board counsel explained:
An application to inspect public records must be in writing, addressed to the official custodian of the public agency's records. KRS 61.872(2). Dr. Storer is the official custodian of the Board's records. In his appeal, Mr. Bonds repeatedly states that his request of April 17 was received by Dr. Storer one day after mailing the same or April 18 but offers no proof of this fact. Mr. Bonds could have provided the certified mail receipt evidencing who received his request and when it was received. He chose not to do so. The reason for not providing this receipt is that it shows his request was received by Janis Tomlinson, not Dr. Storer. Mr. Bonds cannot state when his request was received by the Board's official custodian, Dr. Storer. Since Mr. Bonds does not know when Dr. Storer received the written request for production, and there is no proof whatsoever on this in the appeal, the Attorney General cannot and should not find that the Board's response was untimely.
It is with this analysis that we primarily take issue.
In Baker v. Jones, 199 S.W.3d 749 (Ky. App. 2006), the Kentucky Court of Appeals addressed the claim that the failure to personally serve the agency's custodian of records with a copy of an open records request relieved the custodian of her duties. The court observed:
Under the Open Records Act, a written application to inspect public records "shall be hand delivered, mailed or sent via facsimile to the public agency. " KRS 61.872(2). The fact that requests may be sent by mail or by facsimile evidences a legislative intent that delivery to the office of the [custodian] was sufficient to trigger her obligation to comply with the requirements of the Open Records Act. The fact that [the custodian] personally never saw the request is irrelevant. To hold otherwise would be tantamount to encouraging our government officers to "bury their heads in the sand" to public matter with which they are charged.
Baker at 752; accord 07-ORD-241 (recognizing that, even in cases where an open records request is not served on the agency's custodian of records,"[p]ublic agency inaction is not a viable option"); 09-ORD-058; 11-ORD-080.
Based on these authorities, we reject the board's position that because he was not "properly served with the appeal [sic], Dr. Storer was not compelled by law to respond to the same" and that his decision to do so was noncompulsory. We also reject the board's position that it was justified in postponing its response until Dr. Storer "consulted with his Board and Board counsel . . . at the meeting of the Board on April 24." This office has approved consultation with agency counsel prior to responding to an open records, as long as consultation does not occasion delays in agency response. 93-ORD-134; 97-ORD-41; 09-ORD-187. Certainly, an agency cannot postpone action on an open records request until it is afforded an opportunity to discuss the request at its next scheduled meeting. At least six business days elapsed between the date on which the board received Mr. Bonds request and the date on which the board responded. This was twice the allowable response time. Because its response was untimely, the board violated KRS 61.880(1). 5
The board did not, however, violate the Open Records Act in denying requests three, four, and five, of Mr. Bonds' April 17 records application. Mr. Bonds requested the names of employees "issued a cell phone from the district since May, 2011," "the amount of all monetary donations to the district since 2008," and the "amount of monies in fees paid by the board" to attorney Donald Ruberg, his associates, and his firm from December 1, 2013, to the present. While we agree with Mr. Bonds that financial and operational records must be made available to the public, it is incumbent on him to frame his requests as requests for existing public records. The Attorney General has long recognized that a public agency is not statutorily obligated to honor a request for information as opposed to a request for public records already in existence. For example, in 93-ORD-51, we held 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. See, e.g., OAG 76-375; OAG 79-547; OAG 81-335, OAG 86-51; OAG 87-84; OAG 89-77; OAG 89-81; OAG 90-19. Rather, the Law provides for inspection of reasonably identified records.
93-ORD-51, p. 3. Mirroring this view, in OAG 87-84 we observed:
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 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.
OAG 87-84, p. 3. These decisions were premised on the language of the statutes themselves, 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). 99-ORD-71, pp. 1, 2; see also 03-ORD-071; 06-ORD-024; 08-ORD-124; 12-ORD-026. Because "a public agency is not obligated to compile a list or create a record to satisfy an open records request," and the board does not maintain a compilation of the names of employees assigned a cell phone, monetary donations to the district, or legal fees paid to Mr. Ruberg and his law firm, we find that the board did not violate the Open Records Act in denying requests three, four, and five.
Nor did the board subvert the intent of the Act by imposing excessive fees when it sought prepayment of copying fees and postage in the amount of $ 33.72 for 280 records responsive to requests one and two. Mr. Bonds' objection to the imposition of these fees stems from 14-ORD-078. 6 In 14-ORD-078, which involved the same parties, this office determined that the district imposed excessive fees for copies of 16,340 emails stored on a disc, based on a ten cents per page charge, notwithstanding the fact that the only cost it had actually incurred was the cost of the disc. At page 7 of that decision we noted that Mr. Bonds had not specified a particular format in which he wished to obtain the emails, but subsequently expressed a willingness to accept the emails in electronic format. For these reasons, and based on KRS 61.874(2)(a), 7 we concluded that:
Because the district "currently maintains the records in electronic format, " and Mr. Bonds has indicated that he wishes to obtain the records 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. KRS 61.874(3).
We concluded that the $ 1,641.92 fee the district attempted to impose on Mr. Bonds for records stored on a disc, and not reproduced in hard copy per the requester's designation, was not based on the actual costs the district incurred in reproducing the emails, and was therefore excessive.
In the appeal before us, the board verifies actual costs in the amount of $ 33.72, based on a fee of ten cents per page and postage, for hard copies of 280 responsive records. We disagree with the board's suggestion that it properly might have also imposed fees on Mr. Bond for "copies made in furtherance of the redacting process" and for "the considerable expense involved in the redacting process." 8 We also disagree with its assertion that the documents "had to be reviewed and redacted" 9 and that, although "the emails exist in electronic format, they could not be produced to Mr. Bonds in such a format. " 10 Nevertheless, we agree that the board is entitled to recover ten cents per page, 11 plus postage, because Mr. Bonds did not designate that he wished to obtain the records in an electronic format , and because the board demonstrated that it actually incurred these costs to reproduce , rather than redact , the requested records. As noted, KRS 61.874(3) authorizes public agencies to "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 cost of the media and any mechanical processing costs, incurred by the public agency, but not including the cost of staff required." The Walton-Verona Independent Board of Education cannot recover any costs associated with review and redaction, but it can recover reasonable fees incurred in reproducing hard copies of nonexempt records where, as here, the requester has not designated that he wishes to obtain the records in an electronic format. Because the board's copying fee was limited to its actual costs, excluding staff costs, we find that the fee was not excessive and therefore did not subvert the intent of the Open Records Act.
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. BondsBob StorerDonald 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. Bonds raises an additional objection to the board's handling of his request. He states that the board "has totally ignored [his] request for open records," expressing concern that, in responding to his appeal, the board will "produce a letter of response dated within the required time frame." A copy of the board's April 28 response to his request is attached to Mr. Bonds' April 28 appeal. The record on appeal contains no other board response to his April 17 request. His objection is therefore unfounded.
3 Mr. Bonds simultaneously submitted an open meetings complaint to the board. The board responded to that complaint by letter bearing two dates, February 4, 2014, and April 23, 2014, and the reference line "Open Records Request to Walton-Verona Independent Schools." (Emphasis added.) The questions presented in the subsequent open meetings appeal to the Attorney General will be addressed in a separate decision. It is sufficient, for purposes of this appeal, to acknowledge Mr. Bonds' understandable consternation after reviewing the board's April 23 response since that response focused exclusively on his open meetings complaint.
4 Mr. Bonds denies receipt of the promised hard copy of the board's response.
5 The Open Records Act recognizes one exception to the requirement that the agency produce responsive records or deny a request within three business days. KRS 61.872(5) provides:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
The record on appeal is devoid of evidence that any of these circumstances were present when Mr. Bonds submitted his request.
6 On May 19, 2014, this office received notification that the Walton-Verona Independent Board of Education had appealed 14-ORD-078 to the Boone Circuit Court pursuant to KRS 61.880(5)(a).
7 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.)
8 All costs of redaction, including duplicate copies of a single record made for purposes of redaction, must be borne by the agency pursuant to KRS 61.878(4). 95-ORD-82; 01-ORD-114; 08-ORD-216.
9 The emails identified in requests one and two related, by their express terms, to Mr. Bonds. Unless he is the subject of an ongoing investigation by the board, or the records contain information that qualifies for exclusion under KRS 61.878(1)(k) or (l), he is entitled to unredacted copies of the emails pursuant to KRS 61.878(3) as a former district employee. See, e.g., 97-ORD-87; 01-ORD-126; 09-ORD-117.
10 Because KRS 61.874(2)(a) vests discretion in the requester to designate whether he wishes to obtain electronic records in electronic or hard copy format, it is incumbent on the board to satisfy a request for electronic records in electronic format if the requester so designates. If the agency does not maintain software capable of electronically redacting electronic records, the agency might, for example, print the records out, make the manual redactions, scan the redacted records, and reproduce them as PDFs on a disc.
11 The courts and the legislature have established the reasonableness of a ten cents per page copying charge for records produced in response to an open records request. See Friend v. Rees, 696 S.W.2d 325 (Ky. App. 1985); 200 KAR 1:020 Section 3(1).