Request By:
Noel Mark Botts
Ted S. Dean
David L. Best
Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Mercer County Property Valuation Administrator ("PVA") subverted the intent of the Open Records Act, short of denial and within the meaning of KRS 61.880(4), by charging a fee based on the PVA Commercial Fee Guidelines to provide Noel Mark Botts with "[a]ny and all documents showing the original Assessment sought and the negotiated amount of assessment for all properties owned by Mark Gray and Mary Gray and August Properties, LLC," for 2015 and 2016, in addition to a "[l]ist of any and all documents for all properties owned by Mark Gray and Mary Gray and AUGUST Properties, LLC," for 2015 and 2016 "that were appealed to the Local Board of Assessment Appeals." 1 In a timely written response 2 to Mr. Botts' February 23, 2017, request, Mercer County PVA David L. Best advised Mr. Botts that "[t]he documents you requested are readily available for public inspection in the Mercer County PVA office Monday through Friday 8:00 a.m. to 4:30 p.m. You are more than welcome to come to the office during normal business hours and collect the information you need."
Because Mr. Botts provided a mailing address in Harrodsburg, Kentucky, where the PVA is located, the PVA was authorized to require inspection of potentially responsive documents prior to providing copies by mail per KRS 61.872(3) even assuming that he "precisely describe[d]" the record(s) being sought. 3 However, the PVA further explained that if hard copies of the documents were needed, "there would be a charge for each parcel of property printed. If you prefer my office to compile the data and mail it to you, there will be charges incurred with the costs associated listed below." In support of the proposed charges, the PVA then set forth section IV of the "Uniform Property Valuation Administrator Open Records Commercial Fee Schedule," pursuant to which a fee of $ 2.00 per account plus $ 9.18 in postage was due for a total of $ 88.18.
In his March 15, 2017, appeal, Mr. Botts advised that he requested the documents "in preparation for a Tax Assessment Appeal before the Board of Tax Appeals." Mr. Botts alleged that the PVA "sought to charge for copies and personnel costs" associated with providing the documents "in violation of the applicable statutes and regulations. " In support of this position, he enclosed a copy of 14-ORD-193 (In re: Noel Mark Botts/Scott County Property Valuation Administrator) (holding that Scott County PVA subverted the intent of the Open Records Act in basing his fee on the PVA Commercial Fee Guidelines instead of the cost factors identified at KRS 61.874(6)(a) which, in conjunction with KRS 133.047(4), was controlling).
Upon receiving notification of Mr. Botts' appeal from this office, Mercer County Attorney Ted S. Dean responded on behalf of the PVA. "Only reading the request as it was tendered," Mr. Dean asserted, the PVA maintains that use of the Commercial Fee Guidelines was appropriate given that Mr. Botts' request did not specify that it was made for the purpose of a tax appeal nor did it specify that he was "making the request on behalf of a client, the taxpayer." 4 This office rejected a nearly identical argument by the Scott County PVA in 14-ORD-193; there, as in this case, the PVA explained that he was initially unaware of Mr. Botts' "intended use of the records and he did not require Mr. Botts to provide a certified statement per KRS 61.874(4)(b)." 5 14-ORD-193, p. 2. In other words, the PVA did not dispute Mr. Botts' characterization of his purpose as non-commercial on appeal, relying instead on the fact that Mr. Botts did not volunteer his purpose when a certified statement was not requested. 6
As with any decision involving statutory construction, our duty "is to ascertain and give effect to the intent of the General Assembly." Beckham v. Board of Education of Jefferson County, 873 S.W.2d 575, 577 (Ky. 1994)(citation omitted). In so doing, the Attorney General is not at liberty to add or subtract from the legislative enactment "nor discover meaning not reasonably ascertainable from the language used." Id. Rather, this office must refer to the literal language of the statute as enacted rather than surmising the meaning that may have been intended but was not articulated. Stogner v. Commonwealth, 35 S.W.3d 831, 835 (Ky. App. 2000). In relevant part, KRS 133.047(4) provides that, "in addition to the provisions of KRS 61.874, the Department of Revenue shall develop and provide to each property valuation administrator a reasonable fee schedule to be used in compensating for the cost of personnel time expended in providing information and assistance to persons seeking information to be used for commercial or business purposes ." 7 (Emphasis added.)
However, KRS 133.047(4) also provides that any person seeking information regarding his own property, "or any other person, including the press, seeking information directly related to property tax assessment, appeals , equalization, requests for refunds, or similar matters shall not be subject to fees for personnel time." (Emphasis added.) Accordingly, this office recognized in 02-ORD-89 that "the reasonable fee schedule the [Department] is empowered to develop for property valuation administrators is 'to be used in compensating for the cost of personnel time expended in providing information and assistance to persons seeking information to be used for commercial or business purposes and not for noncommercial purposes." Id., p. 11 (original emphasis), citing KRS 133.047(4). Because the fees imposed on the requester, whose purpose was noncommercial in 02-ORD-89, were "not based on a commercial purpose, and because the fees [did] not, in any event, exist in administrative regulation, we analyze[d] the [p]ropriety of those fees under the reasonable fee provision of the Open Records Act. " Id.
Form 62F015, ("PVA Open Records Commercial Fee Guidelines"), was promulgated into regulation in 2002, after 02-ORD-089 was rendered, and is currently found at 103 KAR 3:030, Section 1(176), pursuant to which said Guidelines "shall be used by the PVA to establish fees to be charged for the cost of reproduction, creation, or other acquisition of records." "As a specific enactment of the General Assembly governing imposition of fees for PVA records, it overrides the general fee provisions of the Open Records Act, " but only if the PVA records are requested for a commercial purpose. 13-ORD-185, p. 5 (modifying prior decisions, including 03-ORD-025 and 10-ORD-192, to the extent reasoning suggested otherwise). 8
KRS 61.874(4)(b)3. excludes from the definition of "commercial purpose, " the "[u]se of a public record in the preparation for prosecution or defense of litigation, or claims settlement by the parties to such action, or the attorneys representing the parties." See 11-ORD-211 (agency subverted the intent of the Act by mischaracterizing requester's purpose as commercial, and imposing an excessive fee to provide copies, notwithstanding the fact that he qualified for exclusion codified at KRS 61.870(4)(b)(3) as the records were sought in preparation for litigation); 14-ORD-193. More significantly, KRS 133.047(4) expressly precludes the PVA from recovering personnel costs, i.e . "staff" costs in Open Records parlance, when the records being sought directly relate to property tax assessments or appeals. Here, as in 14-ORD-193, the mandatory language of KRS 133.047(4) and 61.870(4)(b)3. is controlling. Accordingly, the PVA subverted the intent of the Act within the meaning of KRS 61.878(4) by imposing a fee based on the Commercial Fee Guidelines, which is excessive when applied to a non-commercial requester such as Mr. Botts, and must recalculate his fee based on the cost factors identified at KRS 61.874(3) and (6)(if appropriate). 14-ORD-193, p. 3; 07-ORD-143 (initial determination of whether to provide online access per KRS 61.874(6) is within the discretion of the PVA, but fees that may be charged once that discretion is exercised affirmatively are not; only the costs identified at KRS 61.874(6)(a) may be recouped absent a commercial purpose) .
Either party may appeal this decision may appeal 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 must 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 KRS 61.880(4) provides:
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.
2 In relevant part, KRS 61.880(1) provides that upon receipt of a request, a public agency "shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays . . . whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period of its decision."
3 Pursuant to KRS 61.872(3):
A person may inspect the public records:
(a) During the regular office hours of the public agency; or
(b) By receiving copies of the public records from the public agency through the mail. The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency. . . .
As the Attorney General has often recognized, the Open Records Act contemplates access to records "by one of two means: On-site inspection during the regular office hours of the agency, in suitable facilities provided by the agency, or receipt of the records from the agency through the mail." 03-ORD-067, p. 4. Thus, a "requester whose residence or principal place of business is outside the county where the public records are located may demand that the agency provide him with copies of the records, without inspecting those records, if he precisely describes the records and they are readily available within the agency. See, e.g., 95-ORD-52, 96-ORD-186." Id., p. 5. See Commonwealth v. Chestnut, 250 S.W.3d 655, 661 (Ky. 2008)(declining to add a particularity requirement to KRS 61.872(2) where none exists); 12-ORD-049.
4 In reply, Mr. Botts advised that the PVA "was aware of the assessment appeals filed and that three of the properties had appeals pending before the Kentucky Board of Tax Appeals and that I am Counsel for the Appellant. The information requested was for use in the appeals. The requested documents on their face served no commercial purpose."
5 See 11-ORD-211 (in order to impose fees based on the factors identified at KRS 61.874(4)(c), a public agency must ascertain the requester's intended use, "not by supposition or speculation, but by acquiring a certified statement from the requester pursuant to KRS 61.874(4)(b)").
6 Mr. Dean advised that Mr. Botts visited the office of the PVA on March 3, 2017, "and reviewed each requested file with" Mr. Best. However, by letter dated March 29, 2017, Mr. Botts advised that he "did not personally inspect the files. No mention was made about copying any of the information."
7 Effective July 15, 2016, KRS 133.047(4) was amended. However, the relevant language, providing that costs for "personnel time" can only be recovered if the request is made for "commercial or business purposes," remained intact. For purposes of KRS 133.047(4)(b), a "Reasonable fee" now "has the same meaning as the fee described in KRS 61.874(c)"; and "Personnel time" now "means the cost to the agency to create any mechanical process, data collection, or data creation; the staff required to process, produce, collect, or create data or information; or the cost to the agency for the creation, purchase, or other acquisition of information." KRS 133.047(4)(b)1. and 2.
8 In so holding, this office noted that said Guidelines were developed under authority of KRS 133.047(4) by the Department and promulgated into regulation. 13-ORD-185, p. 5. In that appeal the requester acknowledged having a commercial purpose and challenged the presumptive validity of the regulation. Id., p. 2. Because KRS 13A.140(1) requires the promulgating body to bear the burden of proof, this office remanded the matter to the Department to demonstrate that "the laws and regulations relating to the promulgation of the regulation were faithfully followed" in accordance with KRS 134.140(1)(b) and (f). Id., pp. 2, 6.