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 City of Simpsonville subverted the intent of the Open Records Act, short of a denial of inspection, within the meaning of KRS 61.880(4), by imposing improper fees in response to Randall Thomas' commercial request to inspect and copy tax records regarding a specified parcel of real estate. For the reasons that follow, we find that the city attempted to impose fees in a manner not permitted by the Act.
In his undated request to the City of Simpsonville, Mr. Thomas stated in pertinent part as follows:
This is Randall Thomas. I am an abstractor and I request to inspect and upon inspection to copy the following non exempt public records of:
I am willing to pay the statutorily recognized reasonable fee for obtaining a copy that is found in KRS 61.874. In addition, KRS 61.874(1) states that I may take notes or pictures upon my inspection.
The request was received on May 11, 2015. The following day, City Clerk/ Treasurer Debbie Batliner responded: "I will [be] happy to provide you with your request upon receipt of the $ 10.00 fee associated with your commercial request." Mr. Thomas' appeal to the Attorney General was received on June 10, 2015. 1
On June 17, 2015, attorney William Hartman Brammell, Sr., provided a response on behalf of the city. In relevant part, he states:
The City of Simpsonville, Kentucky has adopted an ordinance ? which requires a $ 10.00 fee for Open Records request on tax information which is for commercial property. Said fee is charged and said ordinance was adopted consistent with an opinion of the Attorney General [09-ORD-028] relating to the City of LaGrange, KY which charged a similar fee[.]
? The fees assessed are based upon actual expenses incurred by the City of Simpsonville as follows:
Based then upon the provisions of KRS 61.880 authorizing charges for Open Records requests related [ sic ] for commercial purposes, upon the above referenced Attorney General's opinion and the costs set forth above, the City of Simpsonville, Kentucky respectfully submits that the practice complained of is in compliance with the law and the appeal should be denied.
Mr. Brammell attaches a copy of Simpsonville City Ordinance No. 2013-006, Section 1(A) of which states in part:
Any request directed to the City Clerk/ Treasurer or his/her staff for researching or providing information about tax bills which are not delinquent shall be assessed an administrative fee of $ 10.00 per parcel; however, if the request is made directly from the property owner, no fee will be charged. This fee shall be paid in advance by the requester.
The city relies upon this ordinance to charge Mr. Thomas a $ 10.00 fee before he may inspect the property tax records in question. Such reliance is inconsistent with the Open Records Act.
KRS 61.874(4) provides as follows:
(a) Unless an enactment of the General Assembly prohibits the disclosure of public records to persons who intend to use them for commercial purposes, if copies of nonexempt public records are requested for commercial purposes, the public agency may establish a reasonable fee.
(b) The public agency from which copies of nonexempt public records are requested for a commercial purpose may require a certified statement from the requestor stating the commercial purpose for which they shall be used, and may require the requestor to enter into a contract with the agency. The contract shall permit use of the public records for the stated commercial purpose for a specified fee.
(c) The fee provided for in subsection (a) of this section may be based on one or both of the following:
(Emphasis added.) This statute was the basis for our approving a $ 4.00 charge by the City of LaGrange for a request that the city fax or mail copies of property tax information in 09-ORD-028. That decision was cited by the City of Simpsonville as the basis for its ordinance. By its own terms, however, KRS 61.874(4) applies only to commercial requests for copies of public records. Therefore, 09-ORD-028 is fundamentally distinguishable.
A statute authorizing copying charges cannot be applied to a mere attempt to inspect records. Any fees authorized by KRS 61.874(4) would only be incurred at the point when Mr. Thomas requested the city to provide copies of the records, which thus far he has not done. Mr. Thomas only requested "to inspect and upon inspection to copy" the records.
Specifically, Mr. Thomas indicated that he planned either "to pay the statutorily recognized reasonable fee for obtaining a copy" or to "take notes or pictures" himself while inspecting the records. KRS 61.874(1) provides in part:
Upon inspection, the applicant shall have the right to make abstracts of the public records and memoranda thereof, and to obtain copies of all public records not exempted by the terms of KRS 61.878. When copies are requested, the custodian may require a written request and advance payment of the prescribed fee, including postage where appropriate. If the applicant desires copies of public records other than written records, the custodian of the records shall duplicate the records or permit the applicant to duplicate the records; however, the custodian shall ensure that such duplication will not damage or alter the original records.
In 11-ORD-166, we held that this provision permitted a private individual inspecting public records to make his own copies with a handheld scanner or non-flash camera "[i]n the absence of a statute prohibiting open records applicants from making copies using their own imaging equipment, and any evidence that the particular records he wishes to copy are more likely to be destroyed or altered if he copies them" (emphasis in original). Since we are unaware of any statute allowing a city clerk to prohibit the use of personal copying devices in the absence of a risk of harm to the public records, we conclude that Mr. Thomas' request cannot be interpreted as a direct request for the city to make copies under KRS 61.874(4). He merely states it as a possibility that he may request copies, in which case he would pay the fee.
A public agency may not add requirements for open records requests that are not found in the statutes.
Com. v. Chestnut, 250 S.W.3d 655, 662 (Ky. 2008). Moreover, a city may not exercise a power that is "in conflict with a ? statute." KRS 82.082(1). The power "is in conflict with a statute if ? there is a comprehensive scheme of legislation on the same general subject embodied in the Kentucky Revised Statutes." KRS 82.082(2). We find that KRS 61.874 represents part of a comprehensive scheme, embodied in the Open Records Act, addressing when and to what extent public agencies may charge fees for access to public records. The city's ordinance, therefore, may not be used to impose a fee prior to Mr. Thomas' mere inspection of public records where he has not yet requested copies. Accordingly, we conclude that the City of Simpsonville's response to Mr. Thomas' request subverted the intent of the Open Records Act, short of a denial of inspection, within the meaning of KRS 61.880(4).
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.
Footnotes
Footnotes
1 In addition to the fact that he was assessed the $ 10.00 fee prior to inspection of the records, Mr. Thomas alleges: "It is my understanding that the City of Simpsonville imposes the same pre-payment fee of $ 10.00 for all requests on any open records whether commercial or not commercial." Since this issue is not before us on the present facts, we do not address it.