Opinion
Opinion By: Jack Conway,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Craig Stone initiated this appeal challenging the "deceptive and unclear policy regarding when you will have to pay for records" that Kentucky Community and Technical College System ("KCTCS") provided in response to his July 8, 2014, request for a copy of its "Open Records Request policy," which KCTCS promptly mailed at no charge. Mr. Stone requested a copy of the agency's "policy," i.e ., rules and regulations adopted under KRS 61.876, following the disposition by the Kentucky Fire Commission/KCTCS 1 of his April 29, 2014, and June 23, 2014, requests for "training hour records" of two separate individuals. KCTCS issued timely written responses in both instances, but did not charge for the copies "[d]ue to the small number of pages" in the first instance. KCTCS advised Mr. Stone in the second instance that a copying fee of $ .10 per page (21 pages at $ .10 per page) would be charged if he wished to pick up the records, and the cost would be $ 3.35 (cost of copies plus postage) if he wished to receive copies via mail. On appeal Mr. Stone correctly observed that "[n]owhere in the policy does it have any indication as to when you may or may not have to pay." Mr. Stone is correct in this assertion; however, KCTCS is vested with discretion to determine whether to waive its copying fee based on the number of copies assuming that policy is uniformly applied.
Upon receiving notification of Mr. Stone's appeal, General Counsel J. Campbell Cantrill, III responded on behalf of KCTCS. Mr. Cantrill quoted the language of KRS 61.874(3), 2 correctly noting that said language "is permissive rather than mandatory." This language allows KCTCS "to make decisions regarding the advance payment of any reasonable fees for copying and postage. " Mr. Cantrill advised that KCTCS exercises its discretion to "'prescribe a reasonable fee,'" and issues a notification letter to requesters describing the records and specifying the costs associated with copying and mailing. KCTCS cannot develop a "blanket policy on the costs of copying and shipping," he asserted, "because the Open Records Act also addresses instances when records may not be in a standard format and for which the agency can charge additional costs to reproduce the records." KCTCS did not otherwise address Mr. Stone's complaint insofar as he implicitly alleged noncompliance with KRS 61.876. If Mr. Stone does not wish to pay for the 21 pages responsive to his June 23 request, KCTCS observed, "he is not required to do so. Pursuant to the law, he may review the records on site. However, KCTCS is not required to copy the records and mail them to him if he chooses not to pay." 3
The Attorney General has long recognized that KRS 61.876 4 is aimed at ensuring that each public agency "will educate the public on its particular policies and practices relative to open records. Simply stated, the rules and regulations contemplated by KRS 61.876 are a 'how-to' for persons who wish to submit an open records request." 94-ORD-12, p. 4. A public agency "must adopt rules and regulations pertaining to its open records policy, or it may adapt the uniform rules and regulations promulgated by the Finance and Administration Cabinet to its particular needs. It must post these rules and regulations in a prominent location accessible to the public with the goal of broadly disseminating them[.] . . ." Id. Failure to comply with all of the requirements codified at KRS 61.876 constitutes a violation of the Open Records Act. OAG 78-340; 05-ORD-281; 13-ORD-074.
The document provided to Mr. Stone in response to his July 8 request, a copy of which Mr. Stone attached to his appeal, is a hard copy of a page from the KCTCS website identified as "KCTCS Style Guide." Underneath of the heading "Open Records Request," KCTCS advises:
The KCTCS General Counsel is the official records custodian and all open records requests should be directed to this office.
. . .
Pursuant to KRS 61.872, KCTCS requires a signed, written request for records. In order to ensure timely responses, KCTCS does not accept emailed requests. Please indicate with some specificity the records you are requesting, and submit your request in writing, via either regular mail or facsimile. The fax number is 859-256-3127. Please address your request :
Also, please provide the address to which you wish the response to be mailed, as the statute also requires KCTCS to respond to your request in writing. We do not e-mail or fax responses.
(Original emphasis.)
Even assuming that KCTCS has a copy of its rules and regulations posted in "a prominent location accessible to the public," in accordance with KRS 61.876(2), 5 which is unclear from the record on appeal, these rules and regulations are silent as to fees that may be charged for copies under KRS 61.874. KRS 61.876(1) "establish[es] a minimum standard for agency compliance." 95-ORD-49, p. 2. A public agency complies with KRS 61.876 "if it adopts rules and regulations limited to the items set forth in KRS 61.876(1)(a) through (d), or if it adopts more comprehensive rules and regulations supplementing the list of items. . . ." Id. Insofar as KCTCS failed to include the specific fees charged for standard hard copies (ten cents per page) per KRS 61.876(1)(c), and its regular office hours per KRS 61.876(1)(a), its rules and regulations are deficient. See 11-ORD-029 ("duty to adopt and post these rules and regulations is 'not a courtesy extended to the public' but a statutory requirement"); 13-ORD-074. The actions of KCTCS were otherwise consistent with relevant provisions of the Open Records Act.
A public agency such as KCTCS is expressly authorized to develop a uniform policy under which it charges a reasonable copying fee. See KRS 61.874(3); KRS 61.874(1); KRS 61.872(3)(b). This provision does not permit a public agency to develop and implement a policy of selective enforcement. 05-ORD-201, p. 5. Mr. Stone "stands in the same shoes as any other records applicant, and must be accorded the same treatment." Id. However, a public agency is vested with discretion to determine whether it waives imposition of a reasonable copying fee based on the minimal number of records implicated so long as the public agency enforces any such policy with uniformity. 06-ORD-157, p. 6. The record lacks any evidence that Mr. Stone has been "single[d] out . . . for disparate treatment." 05-ORD-201, p. 5. Assuming that KCTCS uniformly waives imposition of the statutorily authorized reasonable copying fee based upon the minimal number of records being provided, which is not an uncommon practice among public agencies, the Attorney General has no basis upon which to find that KCTCS violated the Open Records Act in this regard. Either party may appeal this decision by initiating action in the appropriate circuit court under 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.
Footnotes
Footnotes
1 According to its website, the Kentucky Fire Commission became part of KCTCS in 2000 when House Bill 631 was passed. See http://KyFireCommission.kctcs.edu. Thus, General Counsel for KCTCS, who is also its Official Records Custodian, responded to each of the requests.
2 KRS 61.874(3) provides that a 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[.] . . . " This office has long recognized that ten cents per page is a "reasonable fee" to charge for duplication of hard copy records, in accordance with Friend v. Rees, 696 S.W.2d 325 (Ky. App. 1985). 01-ORD-136 is controlling on this issue. See 200 KAR 1:030, Section 3(1).
3 KRS 61.872(3) and 61.874(1), upon which KCTCS implicitly relied, validate this position.
4 KRS 61.876 provides:
(1) Each public agency shall adopt rules and regulations in conformity with the provisions of KRS 61.870 to 61.884 to provide full access to public records, to protect public records from damage and disorganization, to prevent excessive disruption of its essential functions, to provide assistance and information upon request and to insure efficient and timely action in response to application for inspection, and such rules and regulations shall include, but shall not be limited to:
(a) The principal office of the public agency and its regular office hours;
(b) The title and address of the official custodian of the public agency's records.
(c) The fees, to the extent authorized by KRS 61.874 or other statute, charged for copies.
(d) The procedures to be followed in requesting public records.
(2) Each public agency shall display a copy of its rules and regulations pertaining to public records in a prominent location accessible to the public.
(3) The Finance and Administration Cabinet may promulgate uniform rules and regulations for all state administrative agencies.
5 See 93-ORD-83 ("The spirit of the Act mandates the broadest possible dissemination of an agency's rules and regulations, although the letter of the law does not specifically designate where the rules must be posted").