Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Hartford violated the Open Records Act in the disposition of Mike Nance's March 1, 2005, request for records pertaining to contracts between the City of Hartford, or any agency thereof, and Joe Ford or Ford Communication of Greenville, and records "of monies paid for products, repair of equipment, equipment installation or any other work provided to the City of Hartford for calendar years 2000, 2001, 2002, 2003, 2004, and 2005 to present." For the reasons that follow, we find that the City did not violate the Open Records Act in requiring Mr. Nance to conduct an onsite inspection of the records identified in his request as a precondition to obtaining copies, but that the City subverted the intent of the Act, short of denial of inspection and within the meaning of KRS 61.880(4), 1 by imposing excessive fees for copies of the records in the amount of fifty cents per page.
By letter dated March 3, 2005, Hartford City Clerk Martha L. Vaught notified Mr. Nance that the requested records were available for inspection at City Hall but asked that he make an appointment to review the records. Mr. Nance responded, in a letter dated March 4, that because he had requested copies, the City was obligated to furnish copies. On March 10, 2005, Ms. Vaught again notified Mr. Nance that the requested records were available for inspection at City Hall during regular business hours, per KRS 61.872, and advised that upon review he could obtain copies at a cost of fifty cents per page. On appeal, Mr. Nance questions the City's position that he must inspect the records before obtaining copies and challenges the fifty cents per page fee it intends to impose for those copies. While we agree that the City's copying fees are clearly excessive, we find no error in its decision to condition Mr. Nance's receipt of copies upon inspection of those records.
With reference to the issue of excessive copying fees, we direct the parties' attention to KRS 61.874(3):
The public agency may 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 cost incurred by the public agency, but not including the cost of staff required. If a public agency is asked to produce a record in a nonstandardized format, or to tailor the format to meet the request of an individual or a group, the public agency may at its discretion provide the requested format and recover staff costs as well as any actual costs incurred.
In general, the courts and this office have approved a reasonable copying fee of no more than ten cents per page. In 01-ORD-136, we concluded that the City of Stanford subverted the intent of the Open Records Act, within the contemplation of KRS 61.880(4), when it charged the requester twenty cents per page for copies of public records. We found that the city was statutorily obligated to recalculate its copying charge to reflect either its actual costs or no more than ten cents per page. In approving the latter charge, we reaffirmed the principle that "the courts and this office have struck a reasonable balance between the agency's right to recover its actual costs, excluding staff costs, and the public's right of access to copies of records at a nonprohibitive charge." 01-ORD-136, p. 7. A copy of 01-ORD-136 is attached hereto and incorporated by reference. See also, 04-ORD-100; 04-ORD-217.
Unless the City of Hartford can substantiate that its actual costs exceed ten cents per page, it must recalculate its copying fee to conform to the requirements found at KRS 61.874(3) as construed in 01-ORD-136 and the authorities cited therein. We find no support in existing legal authority for the fifty cents per page copying fee that the City currently imposes and that policy constitutes a subversion of the intent of the Open Records Act within the meaning of KRS 61.880(4).
Nevertheless, we find that existing legal authority clearly supports the City's policy relative to the requirement that open records requesters who reside in, and whose principal places of business are within, the county in which the requested records are located conduct an onsite inspection of the requested records before obtaining copies. KRS 61.872(3)(a) and (b) thus provide:
(3) A person may inspect the public records:
In 00-ORD-211, this office affirmed a similar policy of the Pike County Fiscal Court, observing:
00-ORD-211, p. 5, 6. A copy of 00-ORD-211 is attached hereto and incorporated by reference.
In supplemental correspondence directed to this office following commencement of Mr. Nance's appeal, Hartford City Attorney E. Glenn Miller asserts that Mr. Nance lives and works in Ohio County and that his residence in Beaver Dam is approximately three miles from Hartford. Mr. Nance, who has since communicated with this office, does not refute this assertion. Under these circumstances, we find that the City properly advised Mr. Nance that the requested records were available for inspection at the Hartford City Hall during regular business hours. As a courtesy, the City has asked that Mr. Nance schedule an appointment to conduct his inspection. Although he cannot be required to do so, insofar as restrictions on hours of access cannot be imposed, we encourage him to do so in the interest of mutual cooperation.
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.
Mike Nance804 Valley View DriveBeaver Dam, KY 42320
E. Glenn MillerCity Attorney130 East Washington, Ste. 108Hartford, KY 42347
Footnotes
Footnotes
1 KRS 61.880(4) provides:
If 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.