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 City of Crittenden violated the Open Records Act, or subverted the intent of the Act within the meaning of KRS 61.880(4) , in the disposition of Crittenden City Councilmember Jennifer Thurman-Humphrey's April 8, 2019, request for the following records: 1 1) Crittenden City Procurement Policy; 2) Crittenden City Personnel and Compensation Policy; 3) Crittenden City Code of Ethics; 4) Current Interlocal Agreement for Road Maintenance; and 5) Fiscal Year 2018-19 Line-Item Budget and Expense Summary as of March 30, 2019. Ms. Thurman-Humphrey directed her April 8 request to City Clerk Megan Simpson, and requested the records "[i]n order to carry out my official duties as Crittenden City Council Member[.]" 2 By undated response, which Ms. Thurman-Humphrey received on April 11, 2019, Mayor Camilla "Kay" Patton advised Ms. Thurman-Humphrey that she could make the requested copies for a fee of 25 cents ($ 0.25) per page. The City "is not responsible for you [sic] to access documents at this expense for personal use, nor [are] employees to be taken away from their duties to copy them." 3 Mayor Patton further stated that Ms. Thurman-Humphrey should "call the city building to set up a time." 4 By text message dated April 12, 2019, (copy attached to Ms. Thurman-Humphrey's appeal), Mayor Patton advised her that "some docs" were ready, but requested that she "pick those up by 4 and when I am present. No charge for those." Mayor Patton only provided the Code of Ethics and the Interlocal Agreement. Lastly, Mayor Patton asked Ms. Thurman-Humphrey to notify her and the City Clerk when she would be coming in to copy "2 big books at 25 cents per page."
The City was required to not only issue a written response within three days, excluding weekends and holidays, but also to provide Ms. Thurman-Humphrey, or any requester, with "timely access" to all existing nonexempt records per KRS 61.880(1), 5 or properly invoke KRS 61.872(5), by citing that provision and giving a detailed explanation of the cause for delaying access, in addition to specifying a date when the records would be made available. See 11-ORD-196. 6 If Ms. Thurman-Humphrey "erred in tendering h[er] request[] to the [City Clerk], the [City Clerk was] obligated to immediately forward [he] request[] to the [custodian of the records]. Alternatively, [she was] obligated to notify M[s. Thurman-Humphrey] in writing, on or before the third day after receipt of h[er] request" that h[er] request was misdirected "and 'furnish the name and location of the official custodian of the agency's public records. ' KRS 61.872(4)." 7 12-ORD-153, pp. 2-3.
Resolution of this appeal also turns on the application of KRS 61.872(3)(b), pursuant to which a person is entitled to inspect public records "[b]y receiving copies of the public records from the public agency through the mail. " However, "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" only after he "'precisely describes the public records which are readily available within the public agency. . . ." Id. See 03-ORD-067; 14-ORD-198; 15-ORD-212. In construing this provision, the Attorney General has consistently observed that KRS 61.872(3)(b) places a greater burden on requesters who wish to access public records by receipt of copies through the mail or without first conducting onsite inspection. 99-ORD-63, p. 3 (citation omitted). Whereas KRS 61.872(2) merely requires a requester to "describ[e]" the records which he wishes to access by onsite inspection, 8 KRS 61.872(3)(b) requires the requester to "precisely describe" 9 the records that he wishes to access by receipt of copies by mail. This degree of precision applies whether the request asks for the records in hard copy or electronic format. 16-ORD-242, p. 5.
In summary, the Act contemplates public 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; 09-ORD-106; 17-ORD-010. A requester who both lives and works in the same county where the public records are located may be required to inspect records prior to receiving copies. Id. See 14-ORD-200; 17-ORD-010. On the other hand, 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. ..." 03-ORD-067, p. 5; 09-ORD-106; 14-ORD-200; 18-ORD-068. Ms. Thurman-Humphrey resides in Crittenden, the city where the records are located. However, the record is unclear as to whether she lives in the same county because Crittenden is located in northern Grant County with a small portion of the northern border touching the Boone County line and another portion extending north into Kenton County. On appeal, she clarified that she works in a different county and therefore cannot obtain the records during regular office hours; this fact is undisputed. Accordingly, she is entitled to receive copies via U.S. mail upon payment of a reasonable copying fee and postage costs per KRS 61.874(1) and (3). 10
KRS 61.874(3) authorizes public agencies to "prescribe a reasonable fee for making copies of nonexempt public records . . . 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 addition, KRS 61.874(1) provides that when copies are requested, a public agency "may require a written request and advance payment of the prescribed fee, including postage where appropriate." However, 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. 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 ten cents ($ 0.10) per page, any copying charge in excess of this amount is presumptively excessive. See 01-ORD-136; 08-ORD-171; 16-ORD-024; 19-ORD-062. The City has not attempted to substantiate that its actual cost for making a copy of any of the records in dispute is greater than 10 cents ($ 0.10) per page. Accordingly, 25 cents ($ 0.25) per page is a presumptively excessive fee, imposition of which subverted the intent of the Act within the meaning of KRS 61.880(4).
Given this determination, the question becomes whether the City further erred in advising Ms. Thurman-Humphrey that she could exercise her statutory right of inspection only upon scheduling an appointment. In construing KRS 61.872(3), which mandates that public records be accessible "during the regular office hours of the public agency, " this office has consistently recognized that "any attempt by a public agency to limit the period of time in which a requester may inspect public records places 'an unreasonable and illegal restriction' upon the requester's right of access." 02-ORD-094, p. 4 (citation omitted). The only recognized exception is when a public agency "has a very small complement of employees or restricted and irregular office hours, " neither of which has been established here. Id. Under those circumstances, the Act contemplates that the public agency and the requester will agree upon a mutually convenient time and place for the requester to inspect public records. Id. , pp. 4-5 (citation omitted). "In the interest of absolute clarity," this office reiterates that Ms. Thurman-Humphrey (or any requester) "cannot be required to make an appointment to inspect the records, inasmuch as such a requirement could be interpreted as an illegal restriction on access, but may make such an appointment as a reasonable accommodation to [the City]." Id. , p. 5; 06-ORD-158; 10-ORD-199; 16-ORD-015.
Ms. Thurman-Humphrey's final claim is that "no Open Records Notice is . . . posted in the Crittenden City Building." The "Notice" to which Ms. Thurman-Humphrey presumably referred consists of the "rules and regulations" that each public agency is required to adopt under KRS 61.876(1), which must include each of the items outlined at KRS 61.876(1)(a)-(d). The City did not choose to address or deny this claim. This office has long held that KRS 61.876 requires each public agency to adopt rules pertaining to public records and to post same; failing to comply with KRS 61.876 constitutes a violation of the Act. OAG 78-340; 10-ORD19-199; 15-ORD-198. Because the record on appeal is devoid of any evidence refuting Ms. Thurman-Humphrey's claim regarding the City's noncompliance with KRS 61.876(1) and (2), this office finds the City also subverted the intent of the Act, short of denial and within the meaning of KRS 61.880(4), in this respect.
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 By e-mail directed to Mayor Patton on April 2, 2019, Ms. Thurman-Humphrey asked her to provide six records (including the four subsequently requested on April 8) to members of the City Council during the meeting that evening (as opposed to requesting to receive the records only for herself under the Act).
2 The City is a "public agency" under KRS 61.870(1)(d). Ms. Thurman-Humphrey, a member of the City Council, is a "local government officer" and thus a "public agency" within the meaning of KRS 61.870(1)(a). Likewise, Mayor Patton is a "public agency." See 03-ORD-196; 07-ORD-040. Pursuant to KRS 83A.085(3)(b), however, the City Clerk is charged with "[p]erformance of the duties required of the 'official custodian' or 'custodian' in accordance with KRS 61.870 to 61.882." KRS 61.870(5) defines "Official Custodian" as "the chief administrative officer or any other officer or employee of a public agency who is responsible for the maintenance, care and keeping of public records, regardless of whether such records are in his actual personal custody and control." However, KRS 61.870(6) provides, "'Custodian' means the official custodian or any authorized person having personal custody and control of public records[.]" The record here is unclear as to whether the City Clerk is the "Official Custodian," the "Custodian," or both.
3 Mayor Patton's statement demonstrates a fundamental misconception of the City's obligations. The City, like any public agency, is required to have a mechanism in place to ensure the timely receipt and efficient processing of requests. 10-ORD-199. A "public agency cannot ignore, delay, or postpone its statutory requirements under the Open Records Act." 02-ORD-165, p. 3; 09-ORD-091; 94-ORD-86; 15-ORD-174; 17-ORD-105. A public agency response advising that it cannot immediately comply with a request "because of the press of business [is] insufficient to meet the requirements of" the Act. 96-ORD-238, p. 2. "The duty to respond to an open records request, and to afford the requester timely access to the records identified in this request, is as much a public servant's legal duty as any other essential function." 01-ORD-21, p. 4.
4 By e-mail directed to Clerk Simpson on April 8, 2019, Mr. Thurman-Humphrey requested the same four records and copied the City Attorney. Later that day, also via e-mail, Mayor Patton told Ms. Thurman-Humphrey that neither she nor the City Clerk would be making her a copy of "this 100[-]page [Personnel] policy? This is for the employees and the [M]ayor, nor for you to harass and try to degrade what employee's [sic] should or [should not do] on their job[s]." If you continue to "harass" the Clerk for items that do not pertain to you, Mayor Patton stated, "then you leave me no choice but to file charges of harassment with the County Attorney and to contact the Attorney General." Ms. Thurman-Humphrey submitted the subject request (dated April 8) in writing on April 9, expressly asking for those records and the budget under the Open Records Act.
5 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."
6 KRS 61.872(5) states:
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.
7 Pursuant to KRS 61.878(5), "The provisions of this section shall in no way prohibit or limit the exchange of public records or the sharing of information between public agencies when the exchange is serving a legitimate governmental need or is necessary in the performance of a legitimate government function." In construing this provision, the Attorney General has consistently recognized that "public agency exchange of otherwise exempt public records is a 'laudable goal,' and one that is to be strongly encouraged," insofar as it "eliminates duplication of effort and conserves resources." 96-ORD-177, p. 7; 07-ORD-063; 18-ORD-112. Although KRS 61.878(5) is not a mandatory provision, exchange of such basic financial and operational records among members of a public agency unquestionably serves a legitimate governmental need and is necessary for the members to perform their function.
8 KRS 61.872(2) provides that "[a]ny person shall have the right to inspect public records. The official custodian may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected." See Commonwealth v. Chestnut, 255 S.W.3d 655, 661 (Ky. 2008).
9 A requester satisfies the second requirement of KRS 61.872(3)(b) if he or she describes in "definite, specific and unequivocal terms" the records he or she wishes to receive. Id. See 08-ORD-147; 13-ORD-177. Ms. Thurman-Humphrey has unequivocally described the records that she is requesting; the City has not suggested otherwise nor has the City argued that any of the financial and operational records are not readily available.
10 On appeal, Ms. Thurman-Humphrey emphatically denied the Mayor's allegation that she harassed the City Clerk. In response to her appeal, Mayor Patton did not address the delays or the procedural deficiencies in the responses of the City. Rather, she generally asserted that she was asked for documents "that could add stress and burden to the [C]ity." According to her, the City Clerk "feels intimidated and threatened" by Ms. Thurman-Humphrey, etc. "[T]his office is not equipped to resolve factual dispute[s] [when presented with conflicting factual narratives]." 96-ORD-70, p. 3; 14-ORD-132; 16-ORD-137. Further, allegations of harassment, etc. are beyond our scope of review under KRS 61.880(2). See 09-ORD-095. "This office has never held that a person's hostile attitude alone could annul his underlying right to obtain a public record, nor that it 'violated any requirements of the statute.'" 09-ORD-028, p. 5. Here, as in that case, the fact that the requester may have acted in a hostile manner, "does not transform [her] simple application for records into one that 'places an unreasonable burden' on the City within the meaning of KRS 61.872(6)." Id. The Mayor's unsubstantiated allegations of harassment do not constitute the "clear and convincing evidence" necessary to justify reliance on KRS 61.872(6). See 05-ORD-152, p. 5; 10-ORD-003; 13-ORD-145. That is especially true when, as in this case, no evidence has been presented. Compare 11-ORD-144. See Chestnut, 250 S.W.3d 655 664-665.