Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in these consolidated appeals is whether the Logan County Jailer violated the Open Records Act in its disposition of county magistrate Clem "Dickie" Carter's September 12, 2017, request to inspect records of the Logan County Detention Center's commissary account. For the reasons that follow, we find that the jailer both failed to make a complete and timely disposition of the request and subverted the intent of the Act short of a denial of inspection within the meaning of KRS 61.880(4).
Mr. Carter's letter, dated September 11, 2017, was hand-delivered to the jailer by the county judge/executive at Mr. Carter's request. The letter stated:
I am requesting public records from the commissary Account for the past 2 years.
If there is any charge over $ 20.00 please inform me. However, I would like to request 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 which the commissary account is benefitting the inmates.
On September 15, 2017, Mr. Carter "received a phone call stating I could come to the Logan County Detention Center to pick up a letter with Jailer Gregory's response." The written response from Jailer Phil Gregory, dated September 14, 2017, stated as follows: "Due to the amount of copies involved, these documents will have to be reviewed and all private information redacted from the records. We will have your request in full on or before September 28, 2017." No mention was made of any fees, any specific "private information" that was to be redacted, or any statutory basis for making such redactions.
On September 26, 2017, the jailer delivered 11 boxes containing 31,679 pages of documents to Mr. Carter at a fiscal court meeting, along with an invoice for $ 4,633.30, of which $ 3,167.90 was attributed to copies and the remaining $ 1,465.40 to "deputy hours and benefits" and "deputy overtime hours and benefits." There was still no explanation of what redactions were made or the jailer's legal basis for doing so. According to Mr. Carter:
Jailer Gregory said I did not say when to inform me of the charges, so he is telling me now in front of all Magistrates, Judge Chick, County Attorney and others, in the Fiscal Court room, the bill is $ 4,633.30. I do not think this bill is right ? I should have received a written letter advising me of cost of the Open Record Request from Jailer Gregory.
(Emphasis added.) According to the jailer's account, when the records were delivered, "Carter, with the assistance of others present, moved them to a room in the fiscal court room for safekeeping." Mr. Carter's appeal was received in this office on October 27, 2017.
The Logan County Jailer responded to this appeal on November 3, 2017, by his own letter and through Logan County Attorney Joseph E. Ross. Mr. Ross states that the account records contained "bank account numbers and other information which would be confidential under open records law and must be redacted. " Jailer Gregory identifies this material as "financial information and contact information," but provides no further details.
Jailer Gregory claims that the County Judge/Executive orally told Mr. Carter on September 15, 2017, "that the amount was going to be much more than $ 20.00." Mr. Carter disputes that he was ever told this, and we note the absence of any corroboration from the County Judge/Executive in the record. This factual issue is crucial to the appeal, as Mr. Carter did not specify in his request whether he was seeking merely to inspect the records or to receive copies.
We infer from the $ 20.00 amount specified in his letter that Mr. Carter did not wish to obtain copies if the fee was in excess of that amount; nor do we find it credible that he would simply acquiesce, in a passive and indirect manner, to a vague representation by a third party that he would be charged "much more than $ 20.00." Ultimately, we must rely upon the written record of the correspondence between the parties as the only reliable account of the transaction, since this is the public policy embodied in the Open Records Act's requirement of a written request and written response. In light of the public agency's "burden of proof in sustaining the action" under KRS 61.880(2)(c), we conclude that Mr. Carter did not agree to pay for copies in excess of $ 20.00, and therefore we regard his September 11 letter as, in effect, a request for inspection.
The jailer further argues that Mr. Carter's storing the 11 boxes of records in a "secure room" in the fiscal court offices amounts to his accepting possession of them as a fulfillment of a request for copies. Given the public agency's burden of proof in this matter, we do not find such a conclusion to be warranted. Mr. Carter did not remove the copies from public property into his personal possession, 1 but left them at the site where they were delivered by the jailer. Since it is entirely possible that the 31,679 copies were stored on fiscal court property as a "suitable facilit[y]" for purposes of inspection pursuant to KRS 61.872(1), our conclusion that Mr. Carter's request was one for inspection is unchanged.
Since Mr. Carter did not ask to receive 31,679 copies, the only legitimate purpose for making those copies was to provide him the records for inspection in redacted form. This being the case, the jailer's attempt to impose a copying fee for mere inspection of public records was "legally unsupportable" and subverted the intent of the Open Records Act, short of a denial of inspection, within the meaning of KRS 61.880(4). 07-ORD-013; see also 16-ORD-239. Mr. Carter should therefore be allowed to inspect the redacted copies without charge; the jailer may charge $ .10 per page for copies only to the extent that they are requested by Mr. Carter.
The County Attorney additionally argues that the need to redact the records transformed them into a "nonstandardized format, " for which "staff costs" may be recovered under KRS 61.874(3). We disagree. If a public record contains some private or confidential material excepted from the Open Records Act, it is the statutory duty of the public agency to "separate the excepted and make the nonexcepted material available for examination." KRS 61.878(4) . The agency "must discharge its duty under KRS 61.878(4), and must bear the costs attendant to this duty." 95-ORD-82 (emphasis added). As we have previously held:
[S]eparating excepted material is not equivalent to producing a record in a specially tailored format or nonstandardized format within the meaning of KRS 61.874(3) as required for a public agency to recover staff costs. ? Any other conclusion would result in subversion of the intent of the Open Records Act, within the meaning of KRS 61.880(4), through the imposition of excessive fees.
08-ORD-183 (emphasis in original) (citing 95-ORD-82). Therefore, even had Mr. Carter requested copies, there would have been no basis for claiming staff costs. The imposition of such costs was thus a further subversion of the intent of the Act.
In addition, we find that the jailer failed to comply with KRS 61.880(1), which requires a written disposition of an open records request within three days, excluding weekends and legal holidays. The jailer's letter dated September 14, 2017, was insufficient to comply with KRS 61.872(5), which provides:
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.
(Emphasis added.) The jailer did not allege that the records were "in active use, in storage, or not otherwise available"; nor did he give "a detailed explanation of the cause ? for further delay." Rather, only "vague and fragmentary" information was given ( cf . 16-ORD-205) about "the amount of copies involved" and the need to make redactions, without providing even an approximation of the volume of records. We therefore find a procedural violation of KRS 61.880(1), as the final disposition of the request was not timely pursuant to statute.
Lastly, we note that KRS 61.880(1) requires a partial denial of a request for public records, including a redaction, to be accompanied by "a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld." Since this explanation and legal justification of the redactions was not provided in response to Mr. Carter's request, nor, indeed, has the statutory basis been offered on appeal, we must find that the disposition of Mr. Carter's request was both substantively and procedurally in violation of the Open Records Act.
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.
Footnotes
Footnotes
1 The County Attorney makes clear Jailer Gregory's position that Mr. Carter's request was "in his individual capacity, not his official capacity," and therefore was not made by the fiscal court.