Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the actions of the Knox County Property Valuation Office (PVA) responding to the open records requests of John C. Norfleet violated the Open Records Act. For the reasons that follow, we find that, with the exception of a procedural deficiency, the actions of the PVA were in compliance with the requirements of the Act.
By letters dated December 18, 2002, Mr. Norfleet, President, Property Tax Specialist, Inc., submitted two separate but identical requests to the Knox County Property Valuation requesting the following tax assessment information for Knox Wood Apartments and Maplewood Apartments:
Pursuant to the Kentucky Open Records Act; (KRS 61.870, et seq.) please provide Property Tax Specialist, Inc. (PTS) the amount of the tax assessment for the years 2001 and 2002. Also, provide the state, county, school, city, and any other property tax rates applicable to the referenced property.
Under the referenced statute, the PVA shall provide the requested information within three days of this written request. Please include the front page of the property tax card, which shows the assessment history of the property. Please write in the tax rates on this form.
By letter dated December 23, 2002, Mr. Norfleet submitted a second letter addressed to the Knox County PVA and the Kentucky Revenue Cabinet, advising:
A letter was sent to your office by certified mail, return receipt dated December 18, 2002. Your last day to comply with the Kentucky Open Records Law is today, December 23, 2002.
Some PVAs have failed to include the front page of the "commercial property data card" , which shows thee assessment history of the property. The property tax card shall show the assessments for tax years 2000, 2001 and 2002. Nothing else will satisfy this request. The requested property tax rates must be provided under the statute and any attempt to delay this request by reference to the office of the county clerk will result in a complaint.
Failure to provide full compliance with this request will result in a complaint that will be filed with the Office of the Kentucky Attorney General.
Send your response by first class mail to the above address, do not fax.
(Emphasis and bold in the original)
By letter dated January 8, 2003, Martha Creasy, Office Manager, Knox County PVA, responded to Mr. Norfleet's request, stating:
In reference to the information you requested on December 18, 2002. There is a $ 5.00 dollar charge per account for the first building and $ 2.00 for each additional building. We will be glad to forward this information as soon as this office receives your payment. However, the information in reference to the tax rates for 2002 will not be available at this time, (tax rates have not been set in the county). This office is not responsible for tax rates they are filed with the Knox County Court Clerk, and information is not retained in the Property Valuation Office.
Please find Invoice enclosed.
The invoice was for a total amount of $ 32.00 [Knox Woods Apartment $ 19.00 (1 Building @ $ 5.00, 7 Buildings @ $ 2.00); Maplewood Apartment $ 13.00 (1 Building @ $ 5.00, 5 Buildings @ $ 2.00)].
In his letter of appeal, Mr. Norfleet argues that the "PVA has arbitrarily declined to comply with [his] request and has attempted to make an outrageous charge for the information requested, stating a fee must be paid before they will comply with the statute." In seeking relief, Mr. Norfleet requested:
Please take action to secure compliance with my request and review the charges required by the PVA before complying with the law. Also, please make a determination of when and how such charges may be assessed in compliance with the statute, which states that the information must be provided within 3 business days of the request.
After receipt of Notification of the appeal and a copy of Mr. Norfleet's letter of appeal, Thomas J. Hodge, Attorney, Division of Legal Services, Revenue Cabinet, provided this office with a response to the issues raised in the appeal. In his response, Mr. Hodge stated that the complaint of Mr. Norfleet appeared to make four claims against the Knox County PVA's response to the open records request:
In addressing the first question, Mr. Hodge acknowledged that the PVA had failed to timely respond to the December 18, 2002 request. However, he challenged Mr. Norfleet's argument that the PVA violated the Open Records Act by not making the records available within three days after receipt of his request. In his response, Mr. Hodge argued that the Act does not require the PVA to provide records within three days of a request for their disclosure. In his response, he stated:
Instead, the Act requires that the PVA respond to the request within three days and the response may take many forms, including a refusal to provide the records, a date on which the records will be made available for inspection, a statement that the records do not exist, etc. See KRS 61.872, 61.880.To the extent, therefore, that Mr. Norfleet's appeal asserts that the Act limits the PVA's response to providing records within three days, the appeal is incorrect.
Mr. Hodge next addressed Mr. Norfleet's contention that the PVA improperly responded to his request for "the state, county, school, city, and any other property rates applicable to the referenced property," by advising that those rates were filed with and located in the office of the County Clerk. Relying on prior decisions of the Attorney General, he stated that the provisions of the Open Records Act do not require a public agency to gather and provide information and explained the PVA's response as follows:
Under this clear and controlling precedent, Mr. Norfleet may not simply request property tax rates concerning the properties in question. He must instead request a particular document containing that information. This he has not done. Thus, the PVA is not required in the first instance to provide Mr. Norfleet with any information concerning the applicable tax rates.
As it happened, however, the PVA chose to respond by informing Mr. Norfleet that the information he requested was not held within the office of the PVA but instead was located within the office of the County Clerk. This was above and beyond the duty placed upon the PVA by the Act, but was in accordance with KRS 61. 872(4) had Mr. Norfleet actually requested a document rather than merely information. Mr. Norfleet's only response to this is that the PVA's statement is "obviously not true." The PVA is required only to assess property. See, KRS 132.420, Allphin v. Butler. Ky. 619 S.W.2d 483, 484-85 (1981). Assessment of property is separate and distinct from the application of tax rates. See, e.g., McCracken Fiscal Ct. v. McFadden, 275 KY. 819, 122 S.W.2d 761 (1938). Entities other than the PVA levy taxes and set the specific tax rates. See, e.g., KRS 65.125, 68.100, 75.015, 82.085, 132.017, 132.220. The County Clerk prepares all tax bills for the sheriff to collect upon. KRS 133.220. The PVA is not the custodian of the local tax rates. The proper entity to which a request should be directed is the County Clerk. Mr. Norfleet's appeal with regard to the PVA's referral to the County Clerk must be denied.
Next Mr. Hodge addressed Mr. Norfleet's complaint about the PVA requiring prepayment for copies of the requested records prior to providing him the records. In his response, he stated, in part:
. . . With regard to the request that Mr. Norfleet remit the fees charged prior to the PVA providing the requested documents, the PVA's request is specifically sanctioned by the Act. KRS 61.872(3)(b) states: "If the person requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing. " (Emphasis added). Thus, the PVA is completely within the provisions of the Act by requesting that Mr. Norfleet remit fees charged prior to mailing the requested documents. . . .
Finally, Mr. Hodge addressed the reasonableness of the amount of fees charged by the PVA. In his response, Mr. Hodge stated that the PVA intended to provide Mr. Norfleet with copies of fourteen property cards. Addressing the costs, he explained:
Each of these cards is printed on the front and back of the card, requiring twenty-eight copies to be made. At the standard rate of $ 0.10 per copy, the total cost for these copies is $ 2.80. To mail these copies along with a one page responsive letter at a first class rate, as requested by Mr. Norfleet, would cost approximately $ 1.52.
(Footnote omitted). Mr. Hodge, asserting that the request was for a commercial purpose, addressed the cost of staff. In his response, he explained:
The cost of the staff time needed to respond to the request was estimated at two hours by Denny Miller, a Branch Manager for the Cabinet who has been working closely in Knox County for the Acting PVA, Jeff Cress, during this time of transition for the PVA. This estimate included the time needed to research and locate the property cards for the parcels in question, to make all necessary copies of the cards, to return the original cards to their proper location within the PVA's office, to calculate all charges to be made to Mr. Norfleet, to prepare a letter in response to Mr. Norfleet's request including the amount of the charges, and to assemble the complete package to be sent to Mr. Norfleet after payment of the required fees including preparing a cover letter and obtaining and applying the correct amount of postage. The Deputy PVA who would perform these tasks receives a yearly salary of $ 28, 500 or $ 14.62 per hour, Thus the cost of the two hours of staff time required to respond to Mr. Norfleet's requests is $ 29.24.
The amount charged Mr. Norfleet was $ 32.00, an amount calculated by reference to the PVA Open Records Commercial Fee Guidelines issued by the Cabinet in accordance with the Act and KRS 133.047. The total cost for copies, postage, and staff time as estimated above is $ 33.56. Thus, the $ 32.00 charged Mr. Norfleet is both reasonable and supportable. Mr. Norfleet's appeal with regard to the amount charged by the PVA must be denied.
(Footnote omitted).
We are asked to determine whether the actions of the PVA violated the Open Records Act. For the reasons that follow, we find that, with the exception of a procedural deficiency, the actions of the PVA were in compliance with the requirements of the Act.
KRS 61.880(1) governs agency response to an open records request. That statute requires public agencies to respond in writing, and within three business days, to all open records requests, regardless of the identity of the requester or the nature of the records requested. If the agency elects to deny access to all or part of the records requested, it must cite the exception authorizing nondisclosure and briefly explain its application to the record withheld. Thus, the agency's duty under KRS 61.880(1) is to respond to an open records request in writing within three business days after its receipt, advising the requester as to what the agency's disposition of the request will be. In this regard, we agree with the Cabinet's argument that an agency's duty under the Open Records Act is to respond to an open records request within three business days.
In the instant appeal, it is undisputed that the PVA failed to discharge this statutory duty by responding to Mr. Norfleet's request within three business days after its receipt. Its failure to do so constituted a procedural violation of the Open Records Act. We remind the agency that the procedural requirements of the Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5.
Moreover, we agree with the Cabinet's position that the PVA's response advising that the requested tax records or information concerning the various tax rates should be directed to the County Clerk was consistent with the Open Records Act and decisions of this office. As Mr. Hodge correctly notes, some of Mr. Norfleet's requests were for information, rather than for specific records, and for lists of information. An agency is not obligated to honor requests that constitute a request for information as opposed to a request for specifically described records. The Open Records Act addresses requests for records, not requests for information. In 95-ORD-131, p. 2, we observed:
Requests for information, as distinguished from records, are outside of the scope of the open records provisions. See, e.g., OAG 89-77. Our position is premised on the notion that "[o]pen records provisions address only inspection of records . . . [and] do not require public agencies or officials to provide or compile specific information to conform to the parameters of a given request."
Moreover, this office has also long recognized that a public agency is not obligated to compile a list or create a record to satisfy an open records request. See, e.g., OAG 76-375; OAG 90-101; 96-ORD-251.
We also agree that the PVA properly advised Mr. Norfleet that it did not have the various tax rate records and notified him that those records were located in the office of the County Clerk. KRS 61.872 (4) provides:
If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.
Accordingly, we conclude that the PVA's response was in compliance with KRS 61.872(4) and did not constitute a violation of the Open Records Act.
We further find that the PVA properly could require prepayment of copying fees and mailing charges prior to mailing the requested records. That statute provides:
(3) A person may inspect the public records:
(b) By receiving copies of the public records from the public agency through the mail. 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 after he precisely describes the public records which are readily available within the public agency. If the person requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing.
(Emphasis added.) We believe that such a requirement is entirely consistent with KRS 61.872(3)(b).
Finally, we conclude that the PVA's charge for records requested for a commercial purpose were reasonable. The Cabinet, in its response, indicated that the amount charged Mr. Norfleet was $ 32.00, an amount calculated by reference to the PVA Open Records Commercial Fee Guidelines issued by the Cabinet in accordance with the Open Records Act and KRS 133.047.
KRS 133.047(4) provides in relevant part
Real property tax returns and accompanying documents submitted by a taxpayer shall be considered confidential under the provisions of KRS 131.190 . Other real property records in the office of the property valuation administrator shall be subject to the provisions of KRS 61.870 to KRS 61.884. However, notwithstanding the provisions of KRS 61.874 the Revenue Cabinet shall develop 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 used for commercial or business purposes. . . .
In 96-ORD-271, we discussed the issue of the application of KRS 61.874 when there is another specific fee statute, such as in KRS 133.047. In that decision, we stated:
This office has consistently taken the position that KRS 61.874 is a residual and general statute, and applies where there is no other applicable fee statute. 96-ORD-3; OAG 80-209; OAG 84-91; OAG 87-80; OAG 89-9; OAG 92-79. Thus, in an appeal, under KRS 61.880(4), where the issue is whether the costs for records are excessive or not, we first look to see if there is a specific fee statute that would apply to the records for which copies are requested.
KRS 133.047 directs the Cabinet to establish a reasonable fee schedule. Apparently applying this schedule, the PVA's invoice to Mr. Norfleet indicated that its charge for the requested records was $ 32.00, based on the following calculations: "Knox Woods Apartment $ 19.00 (1 Building @ $ 5.00, 7 Buildings @ $ 2.00; Maplewood Apartment $ 13.00 (1 Building @ $ 5.00, 5 Buildings @ $ 2.00."
In demonstrating the reasonableness of this charge, the Cabinet applied the reasonable fee test set forth in the Open Records Act for copies of records requested for commercial purposes. KRS 61.874(4)(c) provides:
The fee provided for in subsection (a) of this section may be based on one or both of the following:
Applying the test set forth in KRS 61.874(4)(c)1., the Cabinet established that the cost of producing the requested records to be used for a commercial purpose was $ 33.56. 1 This charge was based on $ 0.10 per copy for twenty-eight pages ($ 2.80); first class postage rate, as requested by Mr. Norfleet, ($ 1.52); and two hours staff time at a rate of $ 14.62 per hour ($ 29.24). The Cabinet indicated that the hourly amount was calculated by dividing the yearly salary of $ 28,500 by 1950 hours, which is 37.5 hours for 52 weeks, which is in accordance with the method used by the Kentucky Personnel Cabinet to calculate hourly rates. Under these facts we conclude that the Cabinet has established that the PVA's charge of $ 32.00 for the requested records was reasonable.
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 Because both statutes call for the establishment of a reasonable fee to be charged for providing copies of public records to be used for a commercial purpose, we conclude that the Cabinet could properly apply the tests set forth in KRS 61.874(4)(c) in establishing its fee was reasonable.