Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
David Wilson initiated this appeal challenging the disposition by the Education Professional Standards Board ("EPSB") of his February 5, 2016, request for "copies or an opportunity to inspect and copy" the "workplace records that establish Marcie Lowe's work attendance between Dec. 4, 2015 (the date my previous request was received) and January 29, 2016." In a timely written response, Staff Attorney Cassie L. Trueblood responded on behalf of EPSB, advising Mr. Wilson that four pages of responsive documents were located. In accordance with KRS 61.874(1) and (3), EPSB indicated that copies of the documents would be mailed upon receipt of his advance payment for copies and postage in the amount of $ .89 (4 pages at $ .10 each and $ .49 in postage costs). EPSB advised Mr. Wilson to remit a " Certified Check or Money Order payable to the 'Kentucky State Treasurer' in the amount of $ .89." (Original emphasis.) In the alternative, EPSB advised Mr. Wilson that he could "also come to the EPSB and inspect the records upon making an appointment during regular business hours, Monday through Friday (8:00 a.m. -- 4:00 p.m. ET), excluding holidays." Mr. Wilson visited the EPSB office in Frankfort, Kentucky, on February 12, 2016, to obtain the copies but was informed that according to EPSB policy, the agency could not accept his cash payment of $ .89.
Upon receiving notification of Mr. Wilson's appeal from this office, Ms. Trueblood supplemented her original response on behalf of EPSB. Ms. Trueblood noted that on February 12 "Mr. Wilson did not request to view the records, just to obtain copies." EPSB acknowledged that Mr. Wilson "was again informed that payment for copies needed to be made by certified check or money order. " Mr. Trueblood observed that KRS 61.874(1) does not expressly require a public agency to accept cash as payment of the prescribed fee. In support of its position that requiring a certified check or money order is permissible, EPSB cited 03-ORD-174 (affirming the denial by Luther Luckett Correctional Complex of an inmate request due to his failure to comply with 501 KAR 6:020, Corrections Policy and Procedure 6.1, II(2)(e), requiring payment for copies by check or money order, as the prohibition of cash transactions related to "the legitimate penological concern for safe and secure operation" of the correctional institution and was uniformly applied to all requesters) . EPSB refuted Mr. Wilson's claim that its policy is arbitrary and was only used to obstruct his right of access, explaining that its longstanding policy of not accepting cash or personal checks for payment applies to all EPSB transactions, including the teaching certificate application process. 1
By letter dated March 2, 2016, Mr. Wilson asserted that 03-ORD-174 is not applicable given that he is not an inmate and "the 'broad discretion' given the Department of Corrections doesn't enter into this situation." If a "mere policy can preclude the use of legal tender of the United States and policy can be altered at the whim of the agency," Mr. Wilson argued, "then hypothetically whatever form of payment offered may not be acceptable on any given day." Mr. Wilson acknowledged that EPSB staff asked if he wanted to view the records when he was there on February 12. This office forwarded a copy of Mr. Wilson's reply letter to EPSB. Ms. Trueblood again responded on behalf of EPSB, noting that in 03-ORD-174 the inmate status of the requester was "not the sole consideration." The Attorney General also took into account that "there was no account at the institution for cash to be deposited in and that the prohibition of cash transactions for records extended to all transactions." Ms. Trueblood reiterated that Mr. Wilson's request was not denied. Although EPSB "does ask that individuals make an appointment so that we can ensure that the records are available and properly redacted upon the party's arrival at our office," Mr. Wilson was offered the opportunity to inspect responsive documents on February 12. When he declined that opportunity, EPSB again informed him that upon receipt of a certified check or money order in the amount of the prescribed fee that he would receive the requested copies. Based upon the following, this office finds that EPSB subverted the intent of the Open Records Act, short of denial of inspection and within the meaning of KRS 61.880(4), 2 by imposing costs beyond the prescribed copying fee and postage to provide him with copies of existing responsive documents and insofar as EPSB maintained that he was required to schedule an appointment during regular business hours in order to conduct on-site inspection.
Under KRS 61.874(3), a public agency is authorized to "prescribe a reasonable fee for making copies of nonexempt public records . . . 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." In addition, KRS 61.874(1) provides that when copies are requested, a public agency "may require a written request and advance payment of the prescribed fee, including postage where appropriate." However, in Friend v. Rees, 696 S.W.2d 325 (Ky. App. 1985), the Kentucky Court of Appeals held that 10 cents per page is a reasonable charge for the reproduction of standard hard copy records. For this reason, the Attorney General has consistently held that unless a public agency can substantiate that its actual cost for making photocopies, i.e. , reproduction, is greater than $ 0.10 per page, any copying charge in excess of this amount is presumptively excessive. See 01-ORD-136; 08-ORD-171.
In requiring a requester to incur the additional cost of purchasing a certified check or money order, and refusing to accept cash or personal checks in the amount of the prescribed copying fee (and postage if appropriate), EPSB effectively imposed a fee that exceeded the actual cost of reproduction, i.e. , $ .10 per page, thereby subverting the intent of the Open Records Act within the meaning of KRS 61.880(4). See 10-ORD-022; see also 03-ORD-050 (finding "no support in the Act for the proposition that the cost of access to public records by mail can properly be driven up by the use of certified mail and the consequent imposition of additional postage costs, however valid the agency's reasons may be for electing to use certified mail" ); 04-ORD-100 (public agency could not charge a requester the cost of sending the records by certified mail but was required to absorb that additional cost as regular mail delivery was adequate under KRS 61.872(3) and that cost "unnecessarily adds to the cost to the public for access to public records" ).
The instant appeal is factually distinguishable from 03-ORD-174. First, CPP 6.1, the policy upon which LLCC relied, is promulgated into regulation at 501 KAR 6:020, whereas the internal policy upon which EPSB relied contains no reference to any statute or implementing regulation pursuant to which it was adopted. Second, our holding was expressly made "[u]nder the facts and circumstances" presented -- specifically, "there is no account at LCC through which cash money for copies may be deposited; cash transactions by state inmates are prohibited at state penal institutions; and cash is not authorized as inmate property and may be confiscated from state inmates as contraband." 03-ORD-174, p. 4. Although its policy did extend not only to inmates, but also to employees and requests from the public sector, the basis for its policy was "the legitimate penological concern for safe and secure operation of the institution." Id. This office was quite simply not in a position to "second guess" the Department of Corrections or conclude that DOC had abused its "broad discretion" [under KRS 197.025] with regard to matters "related to the safety, security, and operation of its institutions." Id. Third, even the relevant CPP authorized payment in the form of a personal check. Based upon the foregoing, 03-ORD-174 does not alter the analysis or the result under the facts and circumstances presented here.
Given this determination, the question becomes whether EPSB erred in advising Mr. Wilson that he could exercise his right of inspection only "upon making an appointment during regular business hours. " In construing KRS 61.872(3), which mandates that public agency records be accessible by the public "during the regular office hours of the public agency, " this office has consistently recognized that "any attempt by a public agency to limit the period of time in which a requester may inspect public records places 'an unreasonable and illegal restriction' upon the requester's right of access. " 02-ORD-094, p. 4 (citation omitted). The only recognized exception is when a public agency "has a very small complement of employees or restricted and irregular office hours, " neither of which has been established here. Id. Under those circumstances, the Open Records Act contemplates that the public agency and the requester will agree upon a mutually convenient time and place for the requester to inspect public records. Id., pp. 4-5 (citation omitted). "In the interest of absolute clarity," this office reiterates that Mr. Wilson (or any requester) "cannot be required to make an appointment to inspect the records, inasmuch as such a requirement could be interpreted as an illegal restriction on access, but may make such an appointment as a reasonable accommodation to [EPSB]." Id., p. 5; 16-ORD-015 (attempt by public agency to require an appointment subverted the intent of the Act insofar as it contemplates access to public records during an agency's regular business hours) ; see 06-ORD-158.
Either party may appeal this decision may appeal it by initiating action in the appropriate circuit court per 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 In her February 26, 2016, memorandum to Ms. Trueblood, a copy of which is of record, Internal Policy Analyst IV Sherry Brumback advised that EPSB "accepts cashier's/certified check or money order" as payment for copies of records produced in response to requests made under the Open Records Act in addition to "fees." The attached copy of the "Accounting, Operating, and Personnel Procedures" also refers to both certified and cashier's checks in addition to money orders. EPSB did not mention a cashier's check in responding to Mr. Wilson's request. However, the analysis contained in this decision applies with equal force to a cashier's check, certified check or money order. The record on appeal contains no evidence to suggest that EPSB applies the policy upon which it relied arbitrarily.
2 Pursuant to KRS 61.880(4):
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.