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 Jefferson County Property Valuation Administrator ("PVA") violated the Open Records Act, or subverted the intent of the Act, short of denial of inspection and within the meaning of KRS 61.880(4), in the disposition of Scott Horn's January 19, 2019, request to have "full access to the Jefferson PVA website with a waiver of one-time and recurring fees." Citing 18-ORD-229, Mr. Horn clarified that his request was for noncommercial purposes. By letter dated January 25, 2019, Mr. Horn challenged the inaction of the PVA upon receipt of his request. However, by letter dated January 28, 2019, Mr. Horn supplemented his January 25, 2019, appeal, indicating that he received a response on behalf of the PVA on January 26, 2019; he enclosed a copy of the January 22, 2019, response from CFO and Records Custodian Harold P. Thomas. 1 In responding to Mr. Horn's request, the PVA stated, "We are pleased to offer you full access to our site for $ 7.00 per month which is our cost of connection to our website provider. Be advised this account is for non-commercial use only as per the Subscription Terms of Service on our website [,] jeffersonpva.ky.gov."
Specifically, Mr. Horn challenged the omission of the $ 7.00 per month subscription rate from the list of subscription options available on the PVA website; he also questioned "whether there are additional public records made available through the subscription fee, or if the subscription is only for additional search functionality. " Again citing 18-ORD-229 (applying KRS 61.874(6)(a)), Mr. Horn asked this office "to review any documentation the PVA or Kentucky Department of Revenue can provide to determine whether $ 7.00 per month is an appropriate fee under KRS 61.874(6)(a) for non-commercial public use of additional search and reporting features of the PVA's website, and whether the PVA must offer a clear option on [its] website for non-commercial use at an appropriate rate."
Annale R. Taylor, Assistant Jefferson County Attorney, responded on behalf of the PVA. Noting that Mr. Horn raised a variety of issues and questions in his appeal, Ms. Taylor primarily focused on the propriety of the $ 7.00 per month subscription fee. In substantiating the $ 7.00 fee, Ms. Taylor explained:
The PVA contracts with VIA Studio to host and maintain its website. VIA Studio has calculated the cost of access to the full functions of the PVA's website to be 20% of the revenue generated from the website. This 20% averages out to $ 7.00 per account each month; meaning it costs the PVA $ 7.00 a month for each account to permit the users access to the full website.
Mr. Horn stated in his request to the PVA that he sought full access to the PVA website for a noncommercial purpose. The stated $ 7.00 fee is the cost of connection for full access to the website and does not include any additional fees that may occur as a result of requesting access for a commercial purpose.
Ms. Taylor enclosed a letter from VIA Studio in support of the agency's position that a fee of $ 7.00 is justified under KRS 61.874(6)(a). VIA Studio noted it was "impossible to discount personal accounts. The PVA is responsible for paying these fees regardless of other discounts provided to the user. "
Ms. Taylor further asserted, "The PVA's website was not created to act as a substitute for fulfilling open records requests. . . . Subscribers are paying to have constant and immediate access to public records at their fingertips rather than utilizing the Open Records Act procedure." In other words, it is an available option. Further, she argued, "KRS 61.874(6)(a) presupposes that an open records request for reasonably identifiable public records has been made and the agency has chosen to provide the requested records electronically. " Ms. Taylor argued that was not what occurred here, "nor is it the purpose or intent behind the PVA's website. " Mr. Horn did not request access to specific public records, which the PVA agreed to provide via her database/website. Rather, he requested "carte blanche access to the website. " Ms. Taylor stated that if such a request was proper, the stated fee of $ 7.00 to have full access to all features of the website is permissible under KRS 61.874(6)(a). 2
In supplemental correspondence dated February 13, 2019, Ms. Taylor correctly noted that the Open Records Act does not define what constitutes "the cost of physical connection to the system" or "computer time access charges." VIA Studio hosts and maintains the website to which Mr. Horn requested full access; VIA Studio confirmed that $ 7.00 is the "at cost" fee to cover access to the system for each account. "This fee was calculated by determining the average cost per account it costs VIA Studio for the maintenance and support that goes with keeping the website up and running for each account." 3 (Emphasis added.) VIA Studio declined to provide more detailed information regarding the calculation to Ms. Taylor, claiming that such information is proprietary. In the absence of a statutory definition, she maintained, it was reasonable that a fee based on the factors that Mr. Clark identified upon request would fall under the "physical connection to the system" and "computer time access charges" that may be recovered when a public agency does not maintain the website itself and must pay that same $ 7.00 fee to have full access. Ms. Taylor also correctly noted that KRS 61.874(6) "does not specifically prohibit the inclusion of 'staff, hosting, infrastructure, and support' in calculating the cost of physical connection and reasonable fee for computer time access charges." Relying upon the doctrine of expressio unius est exclusio alterius , she argued the fact that KRS 61.874(3) includes a prohibition against charging for staff time and KRS 61.874(6) does not, indicates that such factors may be properly considered in calculating the fee based on the factors identified at KRS 61.874(6)(a). Based upon the following, this office affirms the position of the PVA.
Although the initial determination of whether to provide online access to public records is within the discretion of the PVA, the fees that may be charged are not. Only the costs identified at KRS 61.874(6)(a) may be recouped in the absence of a commercial purpose. KRS 61.874(6) was enacted to establish a third method (in addition to onsite inspection and receipt of copies through the mail) of providing access to public records under the Open Records Act -- online access to public records in electronic form. Pursuant to KRS 61.874(6):
Online access to public records in electronic form, as provided under this section, may be provided and made available at the discretion of the public agency. If a party wishes to access public records by electronic means and the public agency agrees to provide online access, a public agency may require that the party enter into a contract, license, or other agreement with the agency, and may charge fees for these agreements. Fees shall not exceed:
(Emphasis added). Resolution of this appeal hinges on subsection (a).
As evidenced by the literal and unambiguous language of KRS 61.874(6)(a) and (b), the General Assembly intended to distinguish between the fees generally imposed for online access, and those which may be imposed when the records are requested for a commercial purpose. While public agencies are expressly authorized to require parties requesting online access to enter into a contract, license, or other agreement with the agency in either case, and to charge fees, any such fees "shall not exceed" the "cost of physical connection to the system and reasonable cost of computer time access charges." In contrast, "a reasonable fee based on the factors set forth" at KRS 61.874(4)(c) may be charged for agreements if the records are requested for a commercial purpose. Although public agencies have the burden of proving that a fee is based on permissible factors under KRS 61.880(2)(c), the PVA ultimately satisfied that burden here.
The instant appeal is distinguishable from 18-ORD-229 in this critical respect. In 18-ORD-229, the PVA made "no attempt to substantiate the $ 75.00 annual fee per user under the factors in KRS 61.874(6)(a), but . . . merely alleged 'considerable cost' and asserted that the fee 'is quite reasonable.'" 18-ORD-229, p. 3. The Attorney General emphasized, "The record contains no estimate of the agency's marginal or average cost in granting user access, which would constitute essential information to justify a fee under KRS 61.874 ." (Emphasis added). Our determination that $ 75.00 was an excessive fee, imposition of which subverted the intent of the Act within the meaning of KRS 6.1880(4), resulted from the agency's failure to make any "meaningful attempt" to substantiate the fee imposed under the criteria outlined at KRS 61.874. Here, the PVA ultimately confirmed that $ 7.00 "is the cost of connection for full access to the website and does not include any additional fees that may occur as a result of requesting access for a commercial purpose. " The PVA is not charging a fee that exceeds the actual cost of connection and, in the absence of any evidence of a contrary legislative intent, cost factors including "staff, hosting, infrastructure, and support" can reasonably be considered relevant in calculating the "physical connection to the system" and the "reasonable cost of computer time access charges." Based upon the foregoing, this office has no basis upon which to find the PVA violated, or subverted the intent of the Open Records Act short of denial of inspection, by charging a fee of $ 7.00 to gain full access to its website.
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 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.
Footnotes
Footnotes
1 Inasmuch as the PVA issued a written response on the second working day following receipt of Mr. Horn's request, the response was timely under KRS 61.880(1).
2 In his February 7, 2019, reply, Mr. Horn clarified that he was asking the Attorney General to determine whether the following practices of the PVA subverted the intent of the Open Records Act, short of denial of inspection and within the meaning of KRS 61.880(4): 1) Not offering a noncommercial option/rate on its website; 2) Advertising commercial rates for activities which cannot be characterized as commercial under KRS 61.870(4).
No provision of the Act specifically requires the PVA to include the fee that may be charged for providing requesters with online access for a noncommercial purpose on its website. However, KRS 61.874(6) expressly authorizes the agency to require such requesters to enter into a contract, license, or other agreement prior to granting access, thereby ensuring that any individual requester is aware of the applicable cost. KRS 61.876, the provision requiring all public agencies to post rules and regulations, including the fees charged for copies of public records, does not address the discretionary method of providing online access. Inasmuch as Mr. Horn did not request online access for a commercial purpose, and the PVA has not attempted to improperly charge him a fee based on the factors identified at KRS 61.874(3), this issue is not ripe for consideration. Accordingly, our analysis focuses exclusively on the propriety of the $ 7.00 fee.
Issuance of advisory opinions, which is what Mr. Horn essentially requested, is governed by KRS 15.020 and 15.025. An opinion "is highly persuasive, but not binding on the recipient." York v. Commonwealth, 815 S.W.2d 415, 417 (Ky. App. 1991)(citation omitted). Open Records Decisions, conversely, have the "force and effect of law" under KRS 61.880(5)(a). Given our adjudicatory role in resolving disputes arising under KRS 61.880(2) and 61.846(2), the same considerations that prevent courts from rendering advisory opinions also generally prevent this office from doing so. See 07-ORD-110; 14-ORD-040.
3 This office interprets the italicized language to indicate that VIA Studio bases the amount it charges the PVA on the factors it identified, such as the staff costs associated with maintaining the website, and the PVA is recovering only the amount it pays VIA Studio rather than attempting to base its fee, in part, on factors beyond those deemed permissible under KRS 61.874(6)(a) for noncommercial requests like that of Mr. Horn. Compare KRS 61.874(6)(b)(allowing the PVA to recover a "reasonable fee" based on the factors that are set forth at KRS 61.874(4), subsection (c) of which includes, among other things, "staff required" when fulfilling a request made for a commercial purpose) .