Opinion
Opinion By: Jack Conway,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Tyler Fryman initiated this appeal challenging the disposition by the Lexington-Fayette Urban County Government - Division of Police (Division) of his January 8, 2015 request for "an opportunity to inspect or obtain copies of" the following: "Any and all documents, to include, but not be limited to, drafts, memos, PowerPoint presentations (or any presentations made using other software), settlements, training courses, official reprimands, and emails that were made concerning the shooting of a dog on or around Sept. 10, 2010 by Lexington police officer Aaron Greenleaf." Mr. Fryman asked the Division to please notify him of any "fees for searching or copying these records" before proceeding; he also requested "a waiver of all fees in that the disclosure of the requested information is in the public interest and will contribute significantly to the public's understanding of policies and enforcement of them by [the Division]."
By letter directed to Mr. Fryman on January 13, 2015, Records Custodian Aaron Kidd noted that he called Mr. Fryman upon receipt of his faxed request on January 8, 2015, to request a valid address but Mr. Fryman declined. 1 Officer Kidd observed that Mr. Fryman walked into Division headquarters on January 13 to pick up the documents requested at which point Officer Kidd explained that he needed a valid address in order to provide a proper written response and Mr. Fryman reluctantly complied. In his January 13 letter, Office Kidd further advised that he was enclosing a copy of the dispatch log, citing KRS 65.752(4) , incorporated into the Act by operation of KRS 61.878(1)(l), to justify the redaction of specified information.2 Officer Kidd explained that "[t]he only document that exists at this time due to the retention schedule is an SP-302 (Incident [I]nvestigative Report)," access to which the Division also denied on the bases of "KRS 61.878(1)(l), incorporating the work product doctrine, C.R. 26.02(3)(a); the privacy exemption in KRS 61.878(1)[(a)]," and KRS 61.878(1)(j) without further elaboration. The Division explained that a copying fee of $.90 would be charged 3 (nine pages at $.10 each) if Mr. Fryman wished to pick up the records at Division headquarters or the records could be mailed for a cost of $ 1.70, which included postage costs.
In his April 6, 2015 appeal, Mr. Fryman asked this office to address whether the Division violated the Act in requiring him to provide a valid address before providing access to any existing responsive documents and in failing to allow him "a reasonable time to inspect the documents" free of charge. Mr. Fryman advised that he faxed his request to the Division on January 8, 2015, and Officer Kidd contacted him by telephone upon receipt to ask for his address. Mr. Fryman declined to provide this "personal information" and indicated that he would "prefer to pick them up in person or have them emailed" to him. However, the Division also declined to provide him with a "suitable time to pick up [its] response and/or inspect any documents in person." Mr. Fryman maintained that KRS 61.872(2) does not require a requester to provide a public agency with a valid address. He advised that he visited the Division on January 14, and inquired as to whether he could inspect any existing responsive documents and/or its written response. Mr. Fryman received the Division's January 13 response by mail on January 15, which, in his view, confirmed that it had a written response prepared when he was there on January 14. According to Mr. Fryman, the Division erred in failing to provide him with an opportunity to conduct onsite inspection of the records during normal business hours, free of charge, per his original written request.
Upon receiving notification of Mr. Fryman's appeal, counsel for the Division responded on behalf of his client, initially reiterating that Mr. Fryman's written request did not contain a valid address. "Without a valid address," counsel argued, "Officer Kidd could not send the proper response indicating any exemptions or redactions that is required by statute." Counsel explained that on January 13, 2015, Mr. Fryman came into the Division to "inspect or pick up his documents." Officer Kidd explained that a valid address was needed in order to properly respond in writing. The documents were not available, counsel maintained, "as they were being pulled from archives and being reviewed for exemptions. Mr. Fryman did give his mailing address. Shortly thereafter Officer Kidd responded to Mr. Fryman's request and provided him with a dispatch log and the exemptions in writing. . . ." Mr. Fryman subsequently "appeared at police headquarters, paid $.90 for the documents and left. It is not believed that Mr. Fryman requested to inspect the documents before paying for the documents and leaving."
In addressing Mr. Fryman's argument regarding the "requirement of giving his address," counsel asserted that "Officer Kidd could not be sure if and when Mr. Fryman would show up at police headquarters, so without a valid address, a response could not be given in three business days." Citing KRS 61.872(3)(b), pursuant to which a person living outside the county where the records are maintained, such as Mr. Fryman, shall be provided with copies by mail if requested after paying the associated copying fees and postage, counsel argued that "without a valid address Officer Kidd had no way to provide the required response within three business days listing any exemptions that would be present." The Division further asserted that Mr. Fryman's request for the copying fee to be waived is without merit as the Act provides that "government agencies may charge $.10 per page should the requestor take the records with them. There is no requirement for government agencies to waive this copying fee." Counsel advised that "[i]nspection of the documents may be done for free at police headquarters, however if documents are taken by the requestor the copying charge must be paid." According to counsel, the "only time Mr. Fryman requested to inspect the documents was when he unexpectedly showed up at police headquarters on January 13, 2015 prior to the documents being ready for his inspection. " After the documents were ready for his inspection, counsel observed, "they were kept behind the police desk during business hours. The requestor may look at the documents before they pay for them and it is their choice whether to leave the documents there or pay the copying charge and leave." Counsel observed that in this case "it is believed" that Mr. Fryman asked for the documents and paid the $.90 copying fee without reiterating his desire to first conduct onsite inspection of the records.
Resolution of this appeal turns partially on KRS 61.872(2), pursuant to which "[a]ny person shall have the right to inspect public records. The official custodian may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected. " Accordingly, this office has consistently recognized that a public agency "may require, if it desires to do so, that a request or application be in writing. If a written request or application is required, the statute is satisfied if the written application whether or not submitted on the public agency's form contains" the applicant's signature, the applicant's name printed legibly, and a description of records to be inspected. 94-ORD-101, p. 4; 11-ORD-080. In determining whether a request was adequate, this office held that even if "not identified as an open records request submitted under authority of Chapter 61 of the Kentucky Revised Statutes, it satisfie[s] the requirements of KRS 61.872(2), relative to written application, [as long as] it describe[s] the records to be inspected, and [is] signed by the applicant, with his name printed legibly thereon." 99-ORD-148, p. 2. OAG 76-588; 06-ORD-197; 10-ORD-106. A public agency cannot reject a request, or avoid its duty under the Act, merely because the requester did not use a particular form or employ specific legal terminology. 01-ORD-247, p. 3. Nor is the applicant's "failure to utilize the 'formal process' established by the [public agency] " a proper basis for rejecting a request to inspect public records. 04-ORD-048, pp. 4-5; see 95-ORD-33 (a requester is not required to state why he is asking to inspect the records or to produce an I.D. in order to see the records).
The Division did not require Mr. Fryman to use a specific form or terminology but did require a valid address before processing his request made "[u]nder the Kentucky Open Records Act § 61.872 et seq." However, the General Assembly did not include a valid address for the requester among the items that a request made under the Act must contain per KRS 61.872(2). "[I]t is neither the duty nor the prerogative of the judiciary [or this office] to breathe into the statute that which the Legislature has not put there." Commonwealth of Kentucky v. Gaitherwright, 70 S.W.3d 411, 413 (Ky. 2002)(citation omitted). See Commonwealth v. Chestnut, 255 S.W.3d 655, 661 (Ky. 2008) (declining to add a particularity requirement to KRS 61.872(2) where none exists). While a valid mailing address might be a practical necessity in cases where a requester specifically asks to receive copies by mail only rather than exercising his right to conduct onsite inspection of the records per KRS 61.872(3)(b), Mr. Fryman asked to "inspect or copy" responsive documents and further clarified his preference verbally when asked to provide a valid address by telephone. As in each of the decisions above, this office must conclude that in the absence of a legal basis for imposing such a requirement, by insisting that Mr. Fryman provide a valid address the Division acted "contrary to the intent of the Open Records Act by imposing unauthorized requirements on records access." 95-ORD-33, p. 1.
That said, no provision of the Act requires a public agency such as the Division to waive imposition of a reasonable copying fee if copies are requested after the individual has conducted onsite inspection per KRS 61.872(1) and (3)(a) or if the individual requests to receive copies of the public records from the public agency via mail without onsite inspection being conducted first and his "residence or principal place of business is outside the county in which the public records are located" and he "precisely describes" the records which are "readily available" within the agency. KRS 61.872(3)(b). In 00-ORD-238, this office held that the Cabinet for Health Services (now Cabinet for Health and Family Services) did not violate the Act in denying a request by the Better Business Bureau, Inc. to waive imposition of a reasonable copying fee as "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 costs of the media and any mechanical processing cost incurred by the public agency, but not including the cost of staff required.'" 00-ORD-238, p. 2. See KRS 61.874(1); KRS 61.872(3)(b). These statutes contain no provision for the waiver of such fees. Id. See 94-ORD-90; 99-ORD-30. "Simply stated, all persons have the same standing to inspect and receive copies of public records, and are subject to the same obligation for receipt thereof." 94-ORD-90, p. 3[.] . . . Accordingly, it was "entirely proper for the [agency] to require prepayment of a reasonable copying charge that does not exceed the actual cost of duplication, not including staff costs, and to enforce a standard policy relative to assessment of those charges." 00-ORD-238, p. 2; 98-ORD-95. This reasoning is dispositive on the facts presented; the Division did not violate the Act in declining to honor Mr. Fryman's request for "a waiver of all fees . . ." notwithstanding the general "public interest" that may be served through disclosure of the documents requested. See 13-ORD-082.
As to whether the Division failed to provide Mr. Fryman with an opportunity to conduct onsite inspection prior to receiving copies, the record on appeal is conflicting. The Division had until the close of business on Tuesday, January 13, 2015, to issue a written response to Mr. Fryman's January 8, 2015 request per KRS 61.880(1) and either provide him with an opportunity to inspect all existing responsive documents or provide a statutory basis for denial in writing if appropriate. If Mr. Fryman appeared on January 14, the fourth business day following receipt (a point on which the record is conflicting), as opposed to January 13, he was entitled to conduct onsite inspection of any existing nonexempt responsive documents and then receive copies upon payment if he so desired. To the extent Mr. Fryman is alleging that he was effectively charged a copying fee rather than being permitted to conduct onsite inspection per his original written request, a point on which the record is also unclear ("it is believed" that he paid for the copies without stating his preference to conduct inspection first again), this office is compelled to clarify that a public agency cannot "assess the requester any charge for exercising the clearly defined right to inspect public records. . . . That right is firmly rooted in the language of the Act." 07-ORD-013, p. 10. KRS 61.872(1) and (2). KRS 61.872(3)(a) and (b) make it clear that the Act contemplates records access by two means: either onsite inspection during the regular office hours of the agency or by receipt of copies of the records from the agency via mail. Id. 4 Finally, KRS 61.874(1) provides that "[u]pon inspection, the applicant shall have the right to make abstracts of the public records. . . ."
The Attorney General has recognized that the "public has an absolute right to conduct on-site inspection of public records" and this provision of inspection is not "a courtesy extended to the public . . . subject to the terms and conditions dictated by the . . . public agency" but a right that finds ample support in the Act and the decisions construing it. 98-ORD-69, p. 3; 11-ORD-029 (reaffirming that with limited exception the Act gives the requester the authority to prescribe the method of access); 11-ORD-056. When a public agency provides a requester with an opportunity to inspect records, the "requester enjoys a corollary right to obtain copies" of those records upon receipt of payment. 02-ORD-168, p. 7, citing KRS 61.874(1) and OAG 89-40. See 10-ORD-154. However, "there is no authority for the imposition of fees for onsite inspection or 'self-access'" and this office has therefore recognized that any such policy or practice constitutes a subversion of the intent of the Act within the meaning of KRS 61.880(4). 07-ORD-013, p. 10. If the Division failed to provide Mr. Fryman with an opportunity to exercise his right of inspection prior to receiving copies, it subverted the intent of the Act to that extent; conversely, if the Division provided him with an opportunity to conduct onsite inspection "free of charge" then it complied with relevant provisions of the Act. 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.
# 155
Distributed to:
Tyler FrymanAaron KiddMichael R. SannerJanet Graham
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