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 Kentucky State Board of Elections ("Board") subverted the intent of the Open Records Act, short of denial and within the meaning of KRS 61.880(4), in the disposition of attorney Sean Baird's March 3, 2017, request for public records pertaining to "voter roll maintenance," specifically in charging an excessive reproduction fee to provide copies of existing responsive documents. Mr. Baird, of Davis Wright Tremaine LLP, requested the following records from January 1, 2012, to the present concerning:
. All copies of policies or procedures . . . concerning any and all processes for voter roll maintenance [including five subcategories], and documents regarding the number of voters removed from the official voter registration list using those processes [including four subcategories and seven items of identifying information] .
. Documents concerning the Interstate Crosscheck system, including but not limited to, information derived from the Interstate Crosscheck system concerning voters purportedly registered and/or voting in more than one state; and the use of any [such] information for the purpose of identifying whether individuals on the official voter registration list have moved outside their county of residence.
. Documents . . . concerning the number of notices sent in total and by county to individuals pending removal for any reason, including, but not limited to, a suspected change in address, pursuant to 52 U.S.C. § 20507, and documents listing the voters [who] were sent confirmation notices pending removal [including five items of identifying information] and reasons for the notice and removal.
Mr. Baird advised that the Board "may comply with this request by emailing electronic copies of the requested records to: seanbaird@dwt.com," or by sending "copies of the records to my office at the address listed above pursuant to KRS 61.872(3)." 1
Following a series of electronic and telephonic discussions, Mr. Baird submitted a largely identical request by letter dated June 8, 2017 (received on June 16). By letter dated June 23, 2017, the Board objected to Mr. Baird's request, citing KRS 61.872(6) without further explanation. 2 "[W]ithout waiving any such objection," 3 the Board provided the following generic response to each item of the request:
Non-exempt public records in the care, custody and control of this office that are responsive to your request will be made available to you. Due to the need to examine the records to separate exempt from non-exempt materials, the non-exempt public records you have requested and that exist will be made available to you. This office will make every effort to make these records available on or before August 7, 2017. To the extent the records you request are confidential and proprietary; constitute preliminary drafts, notes, correspondence with private individuals, preliminary recommendations and preliminary memoranda; or are prohibited from disclosure by state or federal law, they are excluded from the application of KRS 61.870 to 61.884. KRS 61.878(1)(a); (c); (i); (j); (k); (l).
KRS 61.880(1) provides that a "response denying, in whole or in part, inspection of any record shall include 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." In construing this mandatory language, the Kentucky Court of Appeals observed that the "language of [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents. . . . [A] limited and perfunctory response [does not] even remotely compl[y] with the requirements of the Act-much less [amount] to substantial compliance." Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996); 04-ORD-208; 07-ORD-226; 12-ORD-211; 17-ORD-179. Although there is no "clear standard of proof under the Kentucky Open Records Act, with one narrow exception [codified at KRS 61.872(6),"] this office has long recognized, "it is clear that the burden of proof in sustaining public agency action in the event of an appeal to the Attorney General, or to the circuit court, is on the agency. KRS 61.880(2)(c); KRS 61.882(3)." 00-ORD-10, pp. 10-11(citation omitted)(original emphasis). A "bare assertion" simply does not satisfy that burden. Id. , p. 11. See City of Ft. Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 851-852 (Ky. 2013); 14-ORD-039; 15-ORD-033. Notwithstanding the initial deficiencies in the response(s) of the Board, the remaining dispute centers on the propriety of the proposed copying fee.
Upon receiving notification of attorney Laura Warf's appeal from this office, General Counsel Megan C. Walton responded on behalf of the Board. Ms. Walton advised, in relevant part, that the Board had not finalized the costs for copying and postage. However, during the course of subsequent correspondence between the parties and this office, Ms. Walton advised that she estimated the "printing cost to be around $ 6,406.30 at a rate of 10 cents per page." Ms. Walton further advised that the Board had saved all of the records electronically so "it is possible to provide them on a disk." While awaiting the Board's response to her inquiry regarding the possibility of reducing the copying fee, Ms. Warf confirmed that she had received "the updated spreadsheet listing voters who were removed from the voter rolls from 2012 through 2017, which now appears to include the missing categories of records" that were initially omitted inadvertently. Thus, any issues regarding the spreadsheet are now moot per 40 KAR 1:030 Section 6.
Following additional conversations between the parties, the Board notified this office that the records "are currently stored in an electronic format as this was the best way to redact the" personal identifying information. "As a courtesy," Ms. Walton advised, "the files could be provided electronically. However, [the Board] does not waive the fee of $ 6,406.30 at a rate of 10 cents per page." Ms. Warf noted that, as confirmed in e-mails from Ms. Walton and conversations with the Board, "the current executive director stated that he wished to print out all of the documents already reviewed by the [Board] staff so that he could personally re-review the records. It is apparently that cost which the [Board] is now seeking to have paid." (Original emphasis.) However, Ms. Warf argued that said cost should not be "borne by a party making an Open Records Request, especially since staff costs are unrecoverable, and, perhaps more importantly, since the redactions have already been performed by the [Board]." Ms. Walton replied on behalf of the Board, clarifying that "records responsive to this request did not exist in electronic format prior to the receipt of this" request. The Board "exercised its discretion to scan the records into PDF format in order to effectively and efficiently redact" personal information per KRS 61.878(1)(a). Based upon the following, this office finds that imposition of a 10 cents per page copying fee to provide the records in their original hard copy format is permissible. However, the agency is required to bear the costs associated with discharging its duty under KRS 61.878(4).
Pursuant to KRS 61.874(3), a public agency is entitled to prescribe a "reasonable copying 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." 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 under the Open Records Act. 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 10 cents per page, any copying fee which exceeds that amount is presumptively excessive. 4 This office has also recognized that a public agency must demonstrate that a fee imposed to provide a CD or DVD represents the actual cost of reproduction, based on media and mechanical processing costs, but excluding staff costs, or must recalculate its copying fee to conform to the criteria set forth at KRS 61.874(3). See 09-ORD-090. However, KRS 61.874(3) operates in conjunction with KRS 61.874(2)(a), which provides that "[n]onexempt public records used for noncommercial purposes shall be available for copying in either standard electronic or standard hard copy format, as designated by the party requesting the records, where the agency currently maintains the records in electronic format. " However, nonexempt public records used for noncommercial purposes "shall be copied in standard hard copy format where agencies currently maintain records in hard copy format. Agencies are not required to convert hard copy format records to electronic formats. " KRS 61.874(2)(a). In construing this provision, the Attorney General has repeatedly determined that " if nonexempt records exist in both standard electronic and standard hard copy format, the public agency must permit inspection of and copying in the format requested by the requester." 99-ORD-12, p. 6 (emphasis added); 02-ORD-65; 06-ORD-147; 07-ORD-038; compare 03-ORD-222.
As a corollary, the Attorney General has also recognized that if the nonexempt records exist in hard copy format only, agencies must only permit inspection of, and copying in that format. KRS 61.874(2) firmly establishes that "agencies are not required to convert hard copy format records to electronic format. " However, unless the records being sought exist only in hard copy format, discretion rests with the requester, and not the agency, to designate the format. Mr. Baird initially advised that either format was acceptable. The Board ultimately confirmed that documents responsive to his request(s) only existed in hard copy format prior to scanning the documents for the purpose of "effectively and efficiently" redacting information pursuant to KRS 61.878(1)(a). Consequently, the Board is only required to provide the records in hard copy format upon receipt of a reasonable copying fee of $ 0.10 per page and postage costs if appropriate, in accordance with KRS 61.874(1), (2)(a), and (3). The Board is not entitled to recover any costs associated with performing the redactions it deemed necessary regardless of the format in which it provides the records.
In 95-ORD-82 (copy enclosed), the Attorney General analyzed KRS 61.847(3) as it relates to a public agency's duty to "separate the excepted and make nonexcepted material available for examination" pursuant to KRS 61.878(4). Significantly, this office held that separating 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; rather, agencies are required to discharge this duty under KRS 61.878(4) and must bear the cost of redaction. Id. , p. 2; 08-ORD-183. "If it is necessary to separate confidential from non-confidential information in order to permit the inspection, examination, or copying of public information, the [public] agency shall bear the cost of such separation." 95-ORD-82, p. 3. (Citation omitted). See 08-ORD-216 (if redaction method necessitates the creation of two copies, the first copy cannot be treated as a reproduction for which a fee may be assessed, but "must instead be treated as a cost of redaction which the [agency] must bear"); 07-ORD-162; 12-ORD-022; 14-ORD-130; 17-ORD-244. Accordingly, the Board is prohibited from recovering any costs associated with performing its duty under KRS 61.878(4) regardless of whether the redaction process consisted of converting the records into electronic format or hard copy format prior to reproducing a redacted hard copy of the records for disclosure. The Board must provide Ms. Warf with redacted hard copies of the records upon receipt of payment for the copies and postage costs. Insofar as the Board exercised its discretion to reformat all of the records, the Board is entitled to recover staff costs per KRS 61.872(2)(a) if Ms. Warf prefers to receive the records electronically and is not statutorily required to waive the proposed copying fee given that said records did not originally exist in electronic format.
Either party may appeal this decision 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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding. $ 180
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