Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky Retirement Systems ("KRS") imposed excessive copying fees inconsistent with the intent of the Open Records Act in the disposition of Nick Dawson's November 26, 2014, request for proxy voting records. For the reasons that follow, since Mr. Dawson requested the records on behalf of a business called Proxy Insight for a "commercial purpose" within the meaning of KRS 1 61.870(4)(a), we find that KRS did not act inconsistently with the intent of KRS 61.874(4)(a).
In his November 26 request, submitted by e-mail, 2 Mr. Dawson stated in relevant part as follows:
Please may you provide me with the proxy voting records of
Kentucky Retirement Systems for the period of 1st January 2013 to
30th September 2014. Ideally I would like to have the following
information in electronic format:
Name of Issuer
Issuer Identifier e.g. Ticker or CUSIP
Date of Shareholder Meeting
Type of Shareholder Meeting (Annual, Special etc.)
Proposal No.
Proposal
Proposer (Management/Shareholder)
Vote cast by the Retirement System
For your interest, Proxy Insight is a new business helping issuers
achieve best practice in Corporate Governance by demonstrating
global shareholder voting practices. To this end we are collecting
voting data and policies of all significant global investors.
On December 3, KRS Assistant General Counsel Jennifer A. Jones asked Mr. Dawson to certify whether his request was for a commercial purpose as provided in KRS 61.874 and defined in KRS 61.870(4). Mr. Dawson confirmed that his request was commercial.
On December 17, 2014, Ms. Jones provided an estimate of $ 1,500.00 for providing the documents, based on the number of staff hours it would require. Mr. Dawson asked her to reconsider the amount. On January 15, 2015, Ms. Jones stated, "At minimum we could charge $ 1,000." On January 21, 2015, Proxy Insight Senior Vice President Seth Duppstadt initiated an appeal to the Attorney General, contending that the estimated charge was excessive.
KRS General Counsel Brian C. Thomas responded to the appeal on January 30, 2015. He pointed out that Mr. Duppstadt had not appealed from the final response by KRS and provided a copy of Ms. Jones' e-mail to Mr. Dawson on January 16, 2015, which stated in part:
As I told you earlier, KRS keeps this information by investment not in a central location. Most of this information must be obtained from our external man[a]gers. The member of our Investment staff assigned to gather the information regarding this request has estimated it will take him 15 hours. The staff member's hourly rate is $ 46.32. This equals $ 694.80. The Assistant General Counsel and the Chief Investment Officer have also worked and will work hours on this request. Furthermore, there are additional charges for copying and postage.
Although KRS believes that the total cost of compiling your request will exceed $ 694.80 as a result of additional staff time and postage, in the interest of [sic] KRS will only charge you the staff time for the member of the Investment staff assigned to this open records request. Therefore, if you remit a payment of $ 694.80 KRS will compile and mail the request it [sic] to you once completed. If preparing the response takes less than 15 hours, you will receive a refund.
KRS 61.874(4)(a) allows a public agency to set a reasonable fee for the release of documents, based on one or both of the "[c]ost to the public agency of media, mechanical processing, and staff required to produce a copy of the public record" and the "[c]ost to the public agency of the creation, purchase, or other acquisition of the public records." KRS 61.874(4)(c). "The statute fully supports imposition of an hourly rate for staff time expended in the assignment and research of an open records request, as well as the retrieval, redaction, and reproduction of responsive records, and ultimate review and disposition of that request." 04-ORD-054.
KRS asserts that it has based its fee on the estimated cost of one staff member's time, discounting the cost of other employees' time as well as media and mechanical processing. Given these facts, we conclude that $ 694.80 is a "reasonable fee" under KRS 61.874(4)(a) and KRS did not subvert the intent of the Open Records Act through the imposition of 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 proceedings.
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