Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Audubon Park violated the Open Records Act, or subverted the intent of the Act, short of a denial of inspection, within the meaning of KRS 61.880(4), in the disposition of Lawrence Trageser's January 2, 2017, request for certain records pertaining to a former police chief and other personnel. For the reasons that follow, we conclude that inasmuch as the city represented that charges would be made for an outside contractor's fees to retrieve archived records, in contravention of KRS 61.874(3), the intent of the Act was subverted; the city has not timely disposed of the request under KRS 61.880(1); and a records management issue is raised by the evident inefficiencies in the city's recordkeeping.
Mr. Trageser's letter requested inspection of "any and all records reflecting the personnel file of former City of Audubon Park Police Chief Carl R. Reesor." This was to include "any investigative files, reprimands, complaints, termination letters and resignation letters," and particularly regarding a certain arrest on December 7, 1990. He also requested personnel files for four other city employees, specifying the same types of documents. Finally, he requested salary records for the named employees and any records reflecting Carl Reesor's simultaneous service as police chief and city administrator. Mr. Trageser states that on or about January 2, 2017, the current police chief of Audubon Park accepted the hand-delivered request on behalf of the city clerk.
The city's response, as provided by Mr. Trageser, consists of three separate e-mails of uncertain date(s) from City Clerk Janette Mercer. The first of these stated as follows:
[Y]our request is so broad it would require investigation on my part to determine what letters, complaints, termination letters etc. . .would apply. . . which the request would cause undo [ sic ] amounts of resources and money to provide. There are some cost [ sic ] involved with obtaining this information. There will be a cost of $ 259.60 to have all the boxes pulled to go through, then another $ 259.60 to return the boxes so total of that $ 519.20. The Underground Vault will make copies of anything pulled and the lady said. . . this is a guess depending on how many copies are needed it could be up to .50 a copy, so that this point at least $ 519.60, then what ever additional for copies, I want to be sure that you understand the $ 519.20 will be billed to you. I'm happy to make arrangements for you to go through the records to find what you need.
The second response stated:
After doing some investigating the [ sic ] KRS 61.878, you are requesting access to non-exempt files that is [ sic ] protected under KRS 61.878(1)(a)(h)(k). I did look through meeting minutes of January 1990 thru July 1991 and did not see any action that the council took in reference to the December 7, 1990 incident, however you are welcome to look through the minutes to see if you can find any documentation. Let me know if you want to come and look at the minutes.
The third and last response read:
I have been digging through Chief Reesor's file and found the information on the December 7, 1990 allegation by the Courier Journal. The paper work found in his file states the facts and evidence in this case found the allegation to be unfounded. You are welcome to come look at the paperwork.
Mr. Trageser initiated an appeal to this office on January 17, 2017, alleging "denial of records and improper and illegal assessed costs for inspection of records requested."
On January 24, 2017, the city clerk 1 responded to the appeal as follows:
This is a small city and there is only one office employee me, the city clerk. The prior administration did not have good record management. I was hired on September 2013 and I'm sorry I can't be held accountable for record keep [ sic ] prior to my employment. I have included what I can find in file. I have some the [ sic ] information requested for Carl Reesor in reference to letters and pay stubs for the week of 12-05-2011 when Carl Reesor's received 5 checks that took his gross pay from 95K to 113K. I have not found any file at all on Gary Day. The Stephanie Lee Williams file doesn't contain any letters of the nature requested. The request of officers Dale Vittitoe and J R Riley is part of the police records and I have asked the chief of Police to pull their files. There are only 4 full time employees, the Chief of Police being one. We will need some time to get through the budget process and setting tax rates for the City[. T]he new fiscal year starts July[.] I would like until the end of May to tried and getting [ sic ] the additional information requested.
While it appears there is some ongoing effort to locate the records requested by Mr. Trageser, this does not remediate the many deficiencies in the city's handling of this open records request.
KRS 61.880(1) requires a disposition of a request for public records to be made within three days, excluding weekends and legal holidays. If granting access to a record requires more than these three business days, the public agency is to comply with KRS 61.872(5):
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
While the City of Audubon Park has advised Mr. Trageser that its records from 1990 are in storage, he has not been given a date certain on which the records will be available; therefore, the city has not complied with the statute. "KRS 61.872(5) envisions designation of the place, time, and earliest date certain , not a projected or speculative date, when the records will be available for inspection. " 01-ORD-38 (emphasis in original). Furthermore, the city's responses so far have not even addressed many of the categories of records requested by Mr. Trageser. This confused and incomplete set of responses constitutes a procedural violation of the Open Records Act.
To the extent that the city attempted to pass on third-party fees to Mr. Trageser for storing or retrieving stored records, we find that it subverted the intent of the Open Records Act within the meaning of KRS 61.880(4). KRS 61.874(3) states, in pertinent part:
The 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 , including the costs of the media and any mechanical processing cost incurred by the public agency, but not including the cost of staff required.
(Emphasis added.) "The statute permits public agencies to prescribe costs of reproduction, not costs of retrieval." 10-ORD-084. The fact that the city chooses to have a private contractor manage its records cannot be permitted to burden public access to public records by imposing costs not authorized in KRS 61.874(3) for a noncommercial request.
A further subversion of the intent of the Act was the city's attempt to charge Mr. Trageser 50 cents per page for copies. In the absence of specific proof that the city's actual costs, as spelled out in KRS 61.874(3), exceed ten cents per page, it may only charge ten cents per page if Mr. Trageser requests copies. Friend v. Rees, 696 S.W.2d 325 (Ky. App. 1985); 01-ORD-136.
Additionally, regarding any materials the city views as exempt under KRS 61.878(1)(a), (h), or (k), we note that the Open Records Act requires that where a record contains both exempt and non-exempt material, "the public agency shall separate the excepted and make the nonexcepted material available for examination." KRS 61.878(4). Therefore, any claim of exemption must be made subject to this requirement of redaction.
Evidently the fundamental obstacle in the city's fulfillment of this request is what the city clerk identifies as the poor records management practices of her predecessor. Mr. Trageser describes the city's records as "88 boxes that are in storage . . ., which are not labeled, identified, categorized or organized in any manner." The city has not disputed this characterization, and indeed has represented that it will take "until the end of May," or five months, to locate the records requested by Mr. Trageser. A public agency "should not be able to rely on any inefficiency in its own internal record keeping system to thwart an otherwise proper open records request." Com. v. Chestnut, 250 S.W.3d 655, 666 (Ky. 2008).
The Kentucky Open Records Act was substantially amended in 1994. The General Assembly recognized "an essential relationship between the intent of [the Act] and that of KRS 171.410 to 171.740, dealing with the management of public records. . . ." KRS 61.8715. The disorganized state of the City of Audubon Park's public records raises issues which may be appropriate for review under Chapter 171 of the Kentucky Revised Statutes. Accordingly, we refer this matter to the Department for Libraries and Archives for additional inquiry as that agency deems warranted.
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 must 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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