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 Jefferson County Property Valuation Administrator failed to comply with the intent of the Open Records Act, short of denial of inspection, by requiring the requester, Timothy P. Baynham, to disclose his purpose in seeking access to records in her custody and by imposing excessive fees for reproducing those records. For the reasons that follow, we find that the PVA's actions failed to comply with the intent of the Act.
Over a period of time extending from December 29, 2001 to January17, 2002, Mr. Baynham submitted several open records requests to the PVA. These requests were generally denied on the basis of their breadth and nonspecificity. On January 17, Mr. Baynham submitted a modified version of his earlier requests seeking access to eight categories of records, including the two that are the focus of this appeal, number seven and number eight. The records to which Mr. Baynham sought access were identified as:Record Request #7Type of Records Requested:Database list of all commercialassessed properties in JeffersonCounty, sorted by owner's name.Time Period Requested:1995-present.Format Requested:On disk.Record Request #8Type of Records Requested:List of all commercial assessmentAppeals at the PVA conference,the local board and/or the statelevel (if applicable), sorted byowner's name.Time Period Requested:1995-present.Format Requested:On disk if available in spread-sheet or database format.Otherwise hard copies.
Following an exchange of correspondence with the PVA, represented in this matter by Assistant Jefferson County Attorney N. Scott Lilly, Mr. Baynham narrowed the scope of his request to the 1999, 2000, and 2001 database list and the 2001 assessment appeals.
In a response dated January 23, 2002, Mr. Lilly advised:
Your Requests #7 and #8 present some difficulty. Because they pertain to documents covered by KRS 133.047, the Revenue Cabinet has advised that you should complete the enclosed "Request for Reproduction of PVA Public Records" . Specifically, this has to be done to determine whether the use of the record will be either for a non-commercial or commercial use. Further, depending on the use of the records, there are fee guidelines issued by the Revenue Cabinet which must be applied.
On January 24, Mr. Baynham returned the completed request form. That request form reflects that his "specific purpose for obtaining these records" was research, that he indicated that the "anticipated use of the information" was noncommercial, and that he signed and dated a "Non-Commercial Applicant's Certified Statement." 1 Shortly thereafter, Stephen G. Dickerson, an attorney in the Revenue Cabinet's Department of Law, wrote Mr. Baynham to confirm "that the information requested will not be used commercially and is not intended to be used for solicitation of funds or votes [, . . . but is instead intended to] be used for research." Mr. Dickerson advised Mr. Baynham that based on these representations, he had instructed the PVA to release the requested records.
On January 30, Mr. Baynham received a copying cost breakdown from the PVA that was calculated on the basis of "consultation with the Revenue Cabinet" and the "PVA Open Records Fee Guidelines."
Total Cost for 2001, 2000 and 1999 Commercial Assessed Properties Sorted by Owner Name (charged at "Request for Mailing List" rate per attached PVA Open Records Fee Guidelines)
Total $ 2,145.59
(Please note no personnel time fees have been included in totals)Itemized List:1.2001 Commercial Assessed Propertiessorted by Owner NameParcel Count -20,399Subtotal$ 717.98Postage Fee$ 1.03Total$ 719.012.2000 Commercial Assessed Properties Sortedby Owner NameParcel Count -20,214Subtotal$ 714.28Postage FeeIncluded in 2001 CostTotal$ 714.283.1999 Commercial Assessed Properties Sortedby Owner Name - 20,115Subtotal$ 712.30Postage FeeIncluded in 2001 CostTotal$ 712.30
2001 Commercial Conference and Local Board AppealsSubtotal$ 152.12Parcel count - 1,053Postage Fee$ 1.03Total$ 153.15
On February 5, Mr. Baynham mailed a certified check in the amount specified. On February 21, he initiated this appeal, alleging that the copying fee imposed, and the PVA's and Revenue Cabinet's attempt to "dissuade [him] from pursuing his requests . . ., or at the very least to make [him] think twice about using any of the information [in a political campaign] ," constituted a subversion of the intent of the Open Records Act within the meaning of KRS 61.880(4). 2
In supplemental correspondence directed to this office following commencement of Mr. Baynham's appeal, Jefferson County PVA Denise Harper Angel, Mr. Dickerson, and Mr. Lilly defended the PVA's disposition of Mr. Baynham's request and responded to questions posed by this office pursuant to KRS 61.880(2)(c). We have carefully considered each of their arguments and responses, but in the interest of brevity will focus only on the comments that have a direct bearing on the issues of the requester's purpose and excessive copying fees. With reference to the first issue, we note, for the record, that at the time of his request, Mr. Baynham was a paid political consultant employed by the PVA's opponent in the upcoming election, Evelyn Angert. 3
In a letter to this office dated February 28, 2002, Mr. Dickerson stated that the Revenue Cabinet only inquired into Mr. Baynham's purpose to enable the Cabinet to advise the PVA what rate to charge for reproducing records, and that based on his representations, the Cabinet advised the PVA to apply the noncommercial rate. Having received a copy of Mr. Baynham's appeal, Mr. Dickerson expressed the view that "he is using the information for commercial purposes and is collecting a fee, salary or commission from a political opponent of the Jefferson County PVA as compensation for his 'political campaign' work." In response to our March 4, 2002 request for information substantiating the agency's position, Mr. Dickerson confirmed that the solicitation of votes and funds is a commercial purpose "when the request is made by one who is hired to act on behalf of a candidate. " In support, he cited the definition of commercial purpose codified at KRS 61.870(4), and concluded that because Mr. Baynham received a commission, salary, or fee for his work, his purpose in acquiring PVA record should be characterized as a commercial one. Also in response to our questions, Mr. Dickerson acknowledged that the Cabinet developed the "Request for Reproduction of PVA Records," and relied on KRS 61.872(2) and KRS 61.874(5) , coupled with KRS 133.047, as legal authority for the requirement that requesters disclose their "specific purpose" and sign a "Non-Commercial Applicant's Certified Statement."
With reference to the issue of excessive copying fees, Mr. Dickerson further acknowledged that the Revenue Cabinet developed the "PVA Open Records Fee Guidelines" upon which the copying fees imposed on Mr. Baynham were based. Authority for the fee schedule, Mr. Dickerson explained, was derived from KRS 133.047(4). He explained:
While KRS 61.874 sets forth various fees and fee restrictions KRS 133.047(4) provides that "notwithstanding the provisions of KRS 61.874 the Revenue Cabinet shall develop and provide to each property valuation administrator a reasonable fee schedule to be used in compensating for the cost of personnel time expended in providing information and assistance to persons seeking information to be used for commercial or business purposes. " The Revenue Cabinet understands this additional language in KRS Chapter 133 to mean that notwithstanding the fee provisions of the Open Records Act, the Cabinet can develop a reasonable fee schedule for use in all of the PVA offices in order to obtain uniformity and consistency among the offices, with fees which reflect a reasonable estimate of personnel time necessary to extract the requested information from the records.
In response to the question "why was the mailing list rate applied to requests seven and eight," and "how does the $ 25 per request (plus additional charges by number of parcels) copying fee reflect actual costs," Ms. Angel advised:
The mailing list category was used because it does not include all fields in the database and his request was expressly limited to the owners of commercial properties [and a list of commercial assessment appeals] sorted by names. The mailing list category and charge was originated by the Revenue Cabinet in 1994 as a part of a uniform PVA Office fee guideline . . . . The mailing list charge and the entire database charge on the fee schedule are tied to the number of parcels in a county so counties with a similar number of parcels will charge consistently. The charge was further designed to reflect the additional amount of time expended to extract responsive information as the number of parcels increases. Since the 1994 schedule was developed, it is fair to say that most offices can now provide this information via the computer. Thus a charge for the "mechanical processing" computer time necessary to run the programs and extend the information, as was added in this instance, is appropriate as well.
In closing, Ms. Angel observed:
In this instance, it is the opinion of the PVA office and the Revenue Cabinet that the requester should have been charged a commercial purpose fee. However, even if the non-commercial purpose fee was applicable, the request was one which had to be specifically tailored to a particular format and the fee schedule charge remained appropriate. The PVA office and the Revenue Cabinet believe that the fees charged represent a "reasonable estimate" within the requirements of KRS 133.047 and are valid.
On this basis, the PVA and the Revenue Cabinet urged this office to affirm the disposition of Mr. Baynham's request.
Requester's Purpose
It is the opinion of this office that the information Mr. Baynham was required to submit in the "Request for Reproduction of PVA Public Records, " relating to his specific purpose in requesting the records, and including the "Non-Commercial Applicant's Certified Statement," exceeded the permissible limits of KRS 61.872 and KRS 61.874 (4)(b). Further, it is our opinion that a request submitted by an individual acting on behalf of a political candidate, whether paid or unpaid, cannot be characterized as a request submitted for a commercial purpose. Accordingly, we find that the PVA, acting on advice and instruction from the Revenue Cabinet, violated KRS 61.880(4), ". . . subverted the intent of the Open Records Act, short of denial of inspection . . .," by requiring Mr. Baynham to explain his specific purpose for obtaining the records identified in his request and sign the "Non-Commercial Applicant's Certified Statement." Further, we find that the PVA, again on the advice and instruction of the Revenue Cabinet, ". . . subverted the intent of the Act . . ." when, after learning that he was a paid political consultant requesting records on behalf of the PVA's opponent, she characterized the purpose of the request as a commercial one.
KRS 61.872(2) authorizes a public agency to "require written application, signed by the applicant and with his name printed legibly on the applications, describing the records to be inspected." Where, however, the agency has reason to believe the request is submitted for a commercial purpose, KRS 61.874(4)(b) authorizes the agency to "require a certified statement from the requester stating the commercial purpose for which [the records] shall be used . . . ." On this issue, the Attorney General recently observed:
In an early opinion, the Attorney General recognized that "the exemptions [codified at KRS 61.878(1)] may be invoked according to the nature of the records, and not according to the person who is requesting the inspection or the stated or suspected purpose of the inspection. " OAG 82-233, p. 3; see also OAG 89-76. Twelve years later, Kentucky's Court of Appeals confirmed this position in Zink v. Commonwealth, Ky. App., 902 S.W.2d 825, 828 (1994), observing:
01-ORD-8, p. 4. Inasmuch as the requester's purpose in seeking access to public records is irrelevant, and KRS 61.872(2) narrowly restricts what information a public agency may require from the requester, this office has held:
The public agency may require, if it desires to do so, that a request or application be in writing. If a written request or application is required, the statute is satisfied if the written application . . . contains the following:
94-ORD-101, p. 3. In sum we concluded that "[a] public agency cannot demand or require more in regard to a request to inspect public records than is required by KRS 61.872(2)."
01-ORD-8 p. 4, 5. Although we held that KRS 61.872(2) does not authorize public agencies to inquire into a requester's purpose in seeking access to public records, we recognized, at footnote 1, that "[t]he only exception to this rule is found at KRS 61.874(4)(b), permitting public agencies to require a certified statement of commercial purpose from a requester seeking access to records for a commercial purpose as defined in KRS 61.870(4)(a)." Id. at 5.
To the extent that the request form developed by the Revenue Cabinet, and utilized by the PVA, required Mr. Baynham to explain his specific purpose and sign a "Non-Commercial Applicant's Certified Statement," it demanded more than is required by KRS 61.872(2). In order to satisfy both KRS 61.872(2) and KRS 61.874(4)(b), we believe the form should be modified and the commercial or non-commercial check-off for "Anticipated Use of the Information" placed immediately after the second subpart for "Records Requested." If the applicant checks off "non-commercial, " the PVA's inquiry should end there. Only if the applicant checks off "commercial," should he or she be required to explain his or her specific purpose and to sign the "Commercial Applicant's Certified Statement." The "Non-Commercial Applicant's Certified Statement" should, in our view, be deleted in its entirety inasmuch as no legal authority permits its inclusion. If, after the records are disclosed, the PVA determines that the records have been put to a use that falls within the zone of prohibited conduct identified in KRS 61.874(5), the PVA may proceed against the requester pursuant to KRS 61.8745. The existing "Request for Reproduction of PVA Public Records" creates a potential chilling effect on submission of open records requests to PVA's that is inconsistent with the basic policy of the Open Records Act codified at KRS 61.871.
Nowhere is this potential chilling effect better demonstrated than in the instant appeal. Mr. Baynham was asked to explain his specific purpose, and having done so, wrestled with the question of permissible use. It was his concern, real or imagined, that the PVA or Revenue Cabinet would proceed against him if he used the records in the political campaign for which he was a paid consultant. Indeed, both the PVA and the Revenue Cabinet took the position that the solicitation of votes and funds is a commercial purpose "when the request is made by one who is hired to act on behalf of a candidate. " We do not agree.
KRS 61.870(4)(a) defines "commercial purpose" to mean:
the direct or indirect use of any part of a public record or records, in any form, for sale, resale, solicitation, rent, or lease of a service, or any use by which the user expects a profit through commission, salary or fee. 4
Based on Mr. Dickerson's representations, we trust that the PVA and Revenue Cabinet would not treat a request from the candidate himself, or an unpaid campaign worker, as a commercial request, notwithstanding the fact that the records might be used to solicit votes or campaign contributions.
We see no reason why a paid political consultant, or any other paid employee in a campaign, should be subjected to disparate treatment. Although he received a commission, salary or fee for the services he rendered to the candidate, there is no evidence in the record that Mr. Baynham was paid to submit open records requests, or that the records he obtained directly or indirectly yielded a profit. It is therefore our conclusion that Mr. Baynham's purpose in requesting records from the Jefferson County PVA was improperly characterized as a commercial purpose. To hold otherwise would promote the subterfuge of using a "strawman," or unpaid campaign worker, to submit the request and, upon receipt, simply turn the records over to the paid worker. Such a result, in our view, elevates form over substance.
Excessive Fees
Having concluded that the PVA erred in requiring Mr. Baynham to explain his specific purpose and sign the "Non-Commercial Applicant's Certified Statement" and in subsequently characterizing his purpose as a commercial one, we now turn to the question of whether the copying fees the PVA imposed were excessive. We begin by noting, for the record, that those fees were calculated on the basis of a noncommercial use under the "PVA Open Records Fee Guidelines" at the Request for Mailing List Rate, and excluded personnel time fees.
As the PVA and Revenue Cabinet correctly observe, KRS 133.047(4) provides, in part:
[N]otwithstanding the provisions of KRS 61.874 the Revenue Cabinet shall develop and provide to each property valuation administrator a reasonable fee schedule to be used in compensating for the cost of personnel time expended in providing information and assistance to persons seeking information to be used for commercial or business purposes. Any person seeking information on his own property, or any other person, including the press, seeking information directly related to property tax assessment, appeals, equalization, requests for refunds, or similar matters shall not be subject to fees for personnel time.
It appears to us, first and foremost, that the reasonable fee schedule the Cabinet is empowered to develop for property valuation administrators is "to be used in compensating for the cost of personnel time expended in providing information and assistance to persons seeking information to be used for commercial or business purposes, " and not for noncommercial purposes. No other additional cost factor is identified in the statute, and the "personnel time" cost factor cannot be included in copying charges when the request is made by a person seeking information on his own property, or by any other person seeking information directly related to property tax assessments, etc." Further, we question whether in order to have legal effect, these fees, as they relate to requests made for commercial or business purposes, should be promulgated into administrative regulation pursuant to KRS 13A.100(3), requiring administrative bodies empowered to promulgate administrative regulations to prescribe fees by administration regulation. If the fees were promulgated into administration regulation, we would be bound to follow that line of decisions recognizing that a specific enactment of the General Assembly relating to copying fees, such as the fee schedule for county clerks codified at KRS 64.012, overrides the general fee provisions of the Open Records Act, at least insofar as fee guidelines relate to requests made for a commercial purpose. See 00-ORD-110 and authorities cited therein. Because the fees imposed on Mr. Baynham were not based on a commercial purpose, and because the fees do not, in any event, exist in administrative regulation, we analyze the propriety of those fees under the reasonable fee provision of the Open Records Act.
KRS 61.874(3) permits a public agency to prescribe "a reasonable 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 costs incurred by the public agency, but not including the cost of staff required." The agency may require advance payment of the copying charge, including postage. KRS 61.874(1); KRS 61.872(3)(b). "Media" is defined as "the physical material in or on which records may be stored or represented," in this case, the disks. "Mechanical processing" is defined as "any operation or other procedure which is transacted on a machine," in this case, the computer. As we noted in 01-ORD-158:
Although they are not required to do so, 5 public agencies may agree to extract electronically stored information to conform to the parameters of an open records request and in so doing incur "actual costs" in addition to media and mechanical processing cost. At the state agency level, this would include programming and central processing unit (CPU) charges imposed on the agency by the Governor's Office of Technology to extract the information. Such charges would constitute an actual cost to the agency that could properly be passed along to the requester.
01-ORD-158, p. 4.
Both the PVA and the Revenue Cabinet were afforded an opportunity to explain how the fees imposed on Mr. Baynham are tied into the cost factors set forth in KRS 61.874(3) in our March 4, 2002 letters. Neither the PVA nor the Revenue Cabinet offered an explanation for how the fees imposed correspond to these factors. At most, we were advised that personnel time was excluded and mechanical processing computer time was included. We do not know how much of the $ 2,000 plus copying fee imposed represents the cost of the disks and how much represents mechanical processing time. Because no meaningful attempt was made to substantiate the copying fees imposed, we must conclude that they were excessive. If the PVA can substantiate that the fees imposed, which were, facially at least, inflated, reflect her actual costs incurred, this holding will, of course, not stand. In our view, however, the imposition of copying fees that do not reflect actual costs, including personnel time for requests made to PVA's for a commercial purpose but no other purpose, runs contrary to the letter and spirit of the Open Records Act.
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.
Footnotes
Footnotes
1 The material in quotation marks is extracted from the "Request for Reproduction of PVA Public Records" developed by the Revenue Cabinet.
2 As a corollary issue, Mr. Baynham questioned the quality and value of the information he received in response to his request. This office is not, in general, equipped to "adjudicate a dispute regarding a disparity, if any, between records for whichinspection has already been permitted, and those sought but not provided." OAG 89-81, cited at page 4 of 02-ORD-31. On this issue, the Attorney General has observed.
An open records request should not be drawn by artifice and cunning to create a trap for the unwary public agency. Conversely, the request should not require "the specificity of a carefully drawn set of discovery requests, so as to outwit narrowing legalistic interpretations by the government."
95-ORD-49, p. 5 (citation omitted). "In the final analysis," the Attorney General has often observed, "we assume a modicum of good faith from both parties to an open records appeal: from the requester in formulating his request, and from the official custodian in providing the records which satisfy the request." 93-ORD-15, cited at page 4 of 96-ORD-223.
3 Ms. Angert withdrew from the race on March 22, 2002.
4 KRS 61.870(4)(b) excludes from this definition the use of a record by a newspaper or periodical, by a radio or television station in its news or other information programs, or in the preparation for prosecution or defense of litigation or claims settlement by the parties or their attorneys.
5 The agency's alternative, of course, would be to release the entire database in the format in which it is regularly maintained.