Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Police violated the Open Records Act in responding to Robert S. Schwartz's requests for copies of the investigative files relating to the deaths of Christopher Lyle and Bradie C. Capps. Mr. Schwartz is a claim manager for International Claims Specialists, and his requests were submitted on behalf of ITT Hartford Life Insurance Company. For the reasons that follow, we find that KSP's response to his request for the investigative file relating to Bradie C. Capps was procedurally deficient, but affirm in all other respects KSP's denial of Mr. Schwartz's request. We concur with KSP in its view that 98-ORD-30, a copy of which is attached hereto and incorporated by reference, is controlling.
In 98-ORD-30, this office addressed the propriety of KSP's reliance on KRS 61.878(1)(l) and KRS 17.150(2) to deny inter alia , an insurance company's request for an open investigative file relating to the death of an employee of one of its insureds. We analyzed, in some depth, the line of open records decisions affirming KSP's reliance on the cited provision, and concluded that:
analysis of the propriety of an agency's denial of an open records request "does not turn on the purposes for which the request for information is made or the identity of the person making the request." Zink v. Commonwealth, Ky.App., 902 S.W.2d 825, 828 (1994). However compelling the requester's need for the record, it is the nature of the record that is controlling. In the appeal before us, that record is excluded from inspection by the public until the prosecution is completed or a decision not to prosecute is made. In a letter to this office dated January 27, 1998, KSP confirmed that its investigation into the death of Charles Edward Howard is still active. We therefore conclude that KSP properly denied Mr. Lewis's clients' request for the investigative file.
98-ORD-30, p. 2-3 (emphasis in original). Here, as in 98-ORD-30, KSP has confirmed that the investigations into the deaths of Christopher Lyle and Bradie C. Capps are still active. We affirm KSP's denials of Mr. Schwartz's requests for the reasons set forth in 98-ORD-30.
We note, in closing, that KSP's response to Mr. Schwartz's request for the investigative file relating to the death of Bradie C. Capps was procedurally deficient. That response, which emanated from Post 15 in Columbia, Kentucky, did not conform to the procedural requirements of the Act found at KRS 61.880(1), which provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request 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. An agency 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. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
KSP's response did not include a statement of the exception authorizing nondisclosure of the record or an explanation of how the exception applies to that record. Nor does it appear that the response was issued by the official custodian, Diane H. Smith, or under her authority. Finally, it appears that Post 15 may be imposing excessive copying charges for public records. The response forwarded to Mr. Schwartz contains the following statement:
There is a $ 2.00 fee for this report. Make your check payable to Kentucky State Treasurer and mail to us at the address shown above.
Although the Open Records Law permits a public agency to impose a reasonable fee for making copies of nonexempt public records at KRS 61.874(3), that fee may not exceed the agency's actual cost, not including the cost of staff required. Kentucky's courts have determined that ten cents per page is a reasonable copying charge for nonexempt public records. Friend v. Rees, Ky.App., 696 S.W.2d 325 (1985). Post 15 therefore cannot impose a standard $ 2.00 fee for copies of reports generated in response to open records requests, unless the fee reflects its actual costs, excluding staff costs, or unless there is an independent statutory basis for the fee.
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 should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.