Opinion
Opinion By: Andy Beshear,Attorney General;J. Marcus Jones,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Saint Matthews Police Department ("SMPD") violated the Open Records Act ("Act") in the disposition of multiple open records requests submitted by Thomas Stone ("Appellant"). For the reasons stated below, we find that SMPD failed to expressly invoke KRS 61.872(5) as grounds for delaying Appellant's access to responsive records. SMPD initially failed to provide a detailed explanation of the cause for the delay, and failed to provide the place, time, and earliest date on which the public records would be available for inspection, but corrected the error during the appeal. SMPD met its burden of proof regarding costs of hard copies of responsive records provided to Appellant, but subverted the intent of the Act, within the meaning of KRS 61.880(4), 1 by imposing excessive fees for disks of responsive records and audio recordings.
On April 10, 2019, Appellant submitted approximately 14 broadly-worded open records requests to inspect and copy records and audio recordings relating to what SMPD described as, "the incident on April 9." On April 12, 2019, SMPD sent a timely written response, but delayed Appellant's access to the responsive records without giving a detailed explanation for the cause of the delay and a place, time, and earliest date on which the public record will be available for inspection. SMPD merely stated, "[d]ue to the amount of information that you are asking for this will take some time to fill with all the redactions that will need to be done." SMPD estimated the cost of producing the responsive records as in excess of $ 300.
On April 15, 2019, Appellant appealed, arguing SMPD had not properly responded to his requests. Appellant also argued that SMPD stated the costs as "intimidation and a deterrent for me to continue with my request for the records." Appellant submitted emails showing that SMPD intended to assess a fee of $ 5.00 for each disk of responsive records and audio recordings. On April 23, 2019, SMPD responded to the appeal, stating, "[t]he requests are overly broad and burdensome, but we are doing the very best we can to answer each request in a timely manner." SMPD stated that Appellant was seeking copies of "40 employee files...around 70 pages each or around 2,800 total pages...that is itself going to be $ 280.00." SMPD also stated that Appellant's request for specific police citations would entail, "over 400 pages at 10 cents a page, another $ 40.00." SMPD identified responsive records that were immediately available.
On April 24, 2019, our office asked SMPD to supplement the record with copies of the responsive records for purpose of in camera review, pursuant to KRS 61.880(2)(c) and 40 KAR 1:030, Section 3 to document and substantiate the response to Appellant's requests. This office asked SMPD to provide information relating to the costs assessed to Appellant, in order to facilitate a correct resolution of this matter. See 10-ORD-076; 14-ORD-017.
On May 9, 2019, SMPD responded to our request by submitting a supplemental response. SMPD described its search for responsive records and described the number of responsive records located and the copying cost. SMPD stated that it counted 14 open records requests, which required staff to locate and review 2000 pages of responsive records and 45 hours of audio recordings. SMPD stated it searched multiples electronic databases for responsive records, and it had to copy each responsive record to make necessary redactions. SMPD listed the place, time, and earliest date on which each responsive record would be available for Appellant's inspection. However, SMPD did not specifically explain the $ 5.00 cost for disks, other than stating, "$ 5.00 is what the department has always charged for disks. " On June 12, 2019, Appellant supplemented the appeal record with a letter from SMPD reducing the cost for some disks to $ 1.00 still not providing an explanation for the cost.
SMPD Violated the Act by Failing to Expressly Invoke KRS 61.872(5) . SMPD's responses to Appellant's requests delayed his access to responsive records. SMPD violated the Act by failing to expressly invoke KRS 61.872(5) in its initial response or during this appeal. In relevant part, KRS 61.880(1) provides that upon receipt of an open records 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." The only provision that authorizes delay of access beyond the three business day period is KSR 61.872(5). Due to the mandatory nature of KRS 61.880(1), a public agency must expressly invoke KRS 61.872(5) to delay a requester's access to public records. See 15-ORD-174, p. 6; 18-ORD-188. The invocation is absent from SMPD's initial response and the supplemental responses during this appeal. As such, SMPD violated the Act.
SMPD Initially Violated KRS 61.880(1) but Corrected on Appeal . SMPD violated the Act by failing to designate a place, time, and date for inspection of the public records and provide Appellant a detailed explanation for the cause of the delay, but corrected the error during the appeal. 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.
A public agency violates KRS 61.880(1) if it delays access to responsive records without first providing the information mandated by KRS 61.872(5). SMPD's initial response failed to meet this standard. See 95-ORD-27 (merely stating that the request asks for a "large amount of information" is not a sufficiently "detailed explanation" under KRS 61.872(5)); see also 01-ORD-140, pp. 3-4 (the Act "contemplates records production on the third business day after receipt of the request, and not simply notification that the agency will comply"). SMPD's statement that a delay was needed to review and redact responsive records does not constitute a detailed explanation, because reviewing and redacting responsive records is an ordinary part of fulfilling an open records request. 15-ORD-029, p. 3; 17-ORD-082. As such, SMPD's initial response violated KRS 61.880(1).
However, SMPD corrected the error on appeal by providing Appellant a supplemental response stating a "detailed explanation of the cause for further delay," and designating "the place, time, and earliest date on which the public record will be available for inspection. " SMPD's supplemental response also described the search of electronic databases and the volume and types of responsive records located. That was a sufficiently "detailed explanation," because it supported the delay by setting forth the volume of records involved and explained, in detail, the problems associated with retrieving the records. See 02-ORD-217; 12-ORD-043; 13-ORD-168. Applicants making requests for a significant volume of records, as Appellant did here, can "not reasonably expect agencies . . . to produce all responsive records within the three day deadline." 12-ORD-097, p. 6. That is particularly true when the requester submits multiple broadly-framed requests within a short period of time. 17-ORD-082. Accordingly, SMPD corrected its violation of KRS 61.880(1) during the appeal.
SMPD Met its Burden of Proof Regarding Costs for Hard Copies but Subverted the Act Regarding the Costs for Disks . SMPD met its burden of proof in its response to our request for an explanation of the costs for hard copies of responsive records. Regarding the cost for disks, however, SMPD failed to provide evidence explaining the costs. Therefore, we find that the $ 5.00 cost, and in some cases the $ 1.00 cost, for disks is an excessive fee, which subverted the intent of the Act within the meaning of KRS 61.880(4).
Resolution of this appeal turns on the application of KRS 61.874(3), which states, in relevant part:
The public agency may 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, 326 (Ky. App. 1985), the Court of Appeals held that 10 cents ($ .10) per page is a reasonable charge for the reproduction of standard hard copy records under the Act. This office 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 ($ .10) per page, any copying fee exceeding that amount is presumptively excessive. OAG 87-80; 92-ORD-1491; 01-ORD-136; 03-ORD-224; 04-ORD-217; 05-ORD-194; 06-ORD-147. This office has also recognized that a public agency must demonstrate that a fee imposed to provide a CD or DVD disk 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.
Pursuant to KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, this office asked SMPD to provide additional information to assist us in resolving the issues of costs. SMPD met its burden of proof with respect to hard copies by listing the categories of responsive records and explaining the total cost calculations. The initial cost statement accurately stated the cost of producing the requested hard copies. As such, there is no evidence that SMPD made the statement with the intent to intimidate Appellant. 2
However, SMPD did not meet its burden of proof with respect to costs assessed for the responsive disks. In relevant part, KRS 61.880(2)(c) provides that the "burden of proof in sustaining the action shall rest with the agency," and imposition of charges for producing records is no exception. Rather, a public agency such as SMPD has the burden of proof regarding fees it charges for copying public records and must substantiate any departure from the amount deemed reasonable based on the factors identified at KRS 61.874(3). 94-ORD-43, p. 3. SMPD provided no evidence to support the $ 5.00 costs, and for some disks the $ 1.00 cost, imposed on Appellant. In the absence of any evidence to substantiate that the actual cost of producing the disks, based on media and mechanical processing costs, but excluding staff costs, equaled $ 5.00, or $ 1.00, SMPD subverted the intent of the Act within the meaning of KRS 61.880(4) by imposing an excessive fee. SMPD must recalculate its copying fee to conform to the criteria set forth at KRS 61.874(3).
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 KRS 61.880(4) states, "[i]f 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 During the appeal, Appellant made an additional argument that SMPD was obligated to provide responsive records in an electronic format without costs, rather than provide hard copies at cost, pursuant to KRS 61.874(2)(a). However, Appellant's open records request states that he was seeking records, "for viewing and copying." In an email sent to SMPD on April 12, 2019, Appellant verified that he was seeking, "to review and/or make copies[.]" As such, the record establishes that Appellant did not designate a format for the responsive records. SMPD was not obligated to produce copies in an electronic format without cost. 14-ORD-130; 17-ORD-164.