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 Clark County Generation Center, Inc., violated the Open Records Act in the disposition of Pamela Blackburn's August 2, 2005, request for records relating to the Center and maintained by the Clark County Fiscal Court and the Clark County Treasurer. For the reasons that follow, we find that the Center, through its de facto records custodian, 1 the Clark County Fiscal Court and the Clark County Treasurer, violated the Act in refusing to provide Ms. Blackburn with copies of records she was permitted to inspect based on the argument that her request was not specific and that production of copies of the already inspected records would place an unreasonable burden on these agencies. Nevertheless, we do not find that the agencies' proposed ten cent per page copying fee was excessive or otherwise improper under the Open Records Act as long as the agencies have developed a uniform policy on the imposition of copying fees and not a policy that is only selectively enforced. Finally, while we cannot compel these agencies to reduce the proposed copying fee, in light of Ms. Blackburn's offer to supply her own copying paper, we encourage the agencies to reduce that fee, based on the value of the materials provided, in the interest of promoting the spirit, if not the letter, of the Open Records Act.
In correspondence dated August 3, 2005, Clark County Treasurer Henry Branham notified Ms. Blackburn that the records identified in her August 2 request were available for inspection during regular office hours. On August 5, 2005, Ms. Blackburn conducted an onsite review of the three file folders produced for inspection consisting of a divided folder transmitted to Mr. Branham from his predecessor and two folders "he had kept since becoming treasurer." She thereafter requested copies of all records in the file folders with the exception of janitorial receipts and was advised, upon inquiry, that she would be assessed a ten cent per page copying fee. Contesting the fee in light of recent statements by Clark County Judge/Executive John W. Meyers to the effect that "the county did not charge anyone for copies," Ms. Blackburn was directed to "leave everything the way [she] had it stacked so [that Mr. Branham] could make copies for [her] on Monday." On August 9, 2005, Ms. Blackburn was notified by facsimile transmission that her request for copies was denied "because the request covers too broad a category and the documents are not described with specificity, as noted in OAG 76-375. " 2 This appeal followed.
In subsequent correspondence directed to this office, Jude Meyers amplified on the facts giving rise to this appeal and the legal arguments advanced in support of the agencies' denial of her request for copies. He explained that "[u]pon attempting to comply with her request, we determined that it was a very broad request and not specific in the nature of information [Ms.] Blackburn may have wanted." Further, he noted her objections to imposition of a copying fee. Mr. Branham advised, in a separate letter, that the agencies "denied the request for copies, not because of the cost of the copies, but because we felt this would place an unreasonable burden on our office, and she did not specifically describe any of the records she wanted copies." Both Judge Meyers and Mr. Branham indicated that Mr. Branham has since "resigned as treasurer of Clark County Generations Center, Inc.," and that all records related to the Center have been transferred to its Director, Julie Woosley. 3
It is the decision of this office that Ms. Blackburn is entitled to copies of the records she was permitted to inspect on August 5 and that the arguments advanced by the agencies in support of denying her copies are without merit. On several occasions this office has held that, "[r]efusal to supply a copy of a record, after inspection has been permitted, is an action inconsistent with KRS 61.874(1)." OAG 89-40, p. 3; OAG 92-30; 94-ORD-47; 94-ORD-104; 94-ORD-113; 98-ORD-8; 01-ORD-113; 02-ORD-210; 04-ORD-053. KRS 61.874(1) provides:
Upon inspection, the applicant shall have the right to make abstracts of the public records and memoranda thereof, and to obtain copies of all public records not exempted by the terms of KRS 61.878. When copies are requested, the custodian may require a written request and advance payment of the prescribed fee, including postage where appropriate. If the applicant desires copies of public records other than written records, the custodian of the records shall duplicate the records or permit the applicant to duplicate the records; however, the custodian shall ensure that such duplication will not damage or alter the original records.
In construing this provision, the Attorney General has observed:
It is abundantly clear from the language of this statute that one having inspected records is entitled to copies of them upon payment of a reasonable fee. [Footnote omitted.] That fee must not exceed the actual cost of copying, and may not include the cost of staff required. The right to copies of public records is thus correlative to the right to inspect those records. Accordingly, a public agency cannot on the one hand release public records for inspection by a requester, and on the other hand deny the requester the right to copy these records. See, e.g., OAG 89-27; OAG 89-43; OAG 89-66. The public records are either available for inspection and copying, or, under one or more of the exceptions codified at KRS 61.878(1)(a) through [(l)], they are not.
94-ORD-47, p. 3.
The agencies do not assert that the requested records enjoy statutory protection or that the records were inadvertently released for inspection and the agencies should not be estopped from refusing to provide copies. OAG 83-140; OAG 90-117. Instead, the agencies maintain that Ms. Blackburn's request for copies was not sufficiently specific and that to now produce copies would impose an unreasonable burden. 4 We give little credence to the agencies' arguments where, as here, the requested records have been retrieved and produced for inspection and the requester has identified and separated into "stacks" the records she wishes to have copied. The "burden" thereafter associated with production of copies of the records is one that agencies are statutorily required to shoulder per KRS 61.874(1). It is not incumbent on the requester to identify specific records for copying when she has expressed a desire to obtain all the records, with the exception of janitorial receipts, and placed them in stacks to facilitate copying. The record on appeal is devoid of evidence, clear and convincing or otherwise, of an unreasonable burden. Accordingly, we find that the agencies violated KRS 61.874(1) by refusing to honor Ms. Blackburn's request for copies of previously inspected public records.
Turning to the issue of copying fees, we find no error in the agencies' proposed ten cent per page fee as long as the policy implementing the fee has been, and is, consistently and uniformly enforced. KRS 61.874(3) authorizes public agencies to "prescribe a reasonable fee for making copies of nonexempt public records . . . 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." The agency may require advance payment of the prescribed copying charge, including postage if appropriate. KRS 61.874(1) ("[T]he custodian may require a written request and advance payment of the prescribed fee"); KRS 61.872(3)(b) ("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"); see also, 94-ORD-90 and 95-ORD-105. In
Friend v. Rees, Ky. App., 696 S.W.2d 325 (1985), the Kentucky Court of Appeals held that 10 cents per page is a reasonable charge for duplication of hard copy records under the Open Records Act. For this reason, the Attorney General has consistently held that unless an agency can substantiate that its actual cost for making photocopies is greater than 10 cents per page, any copying charge which exceeds this amount is presumptively excessive. OAG 80-421; OAG 82-396; OAG 84-91; OAG 87-80; OAG 89-9; OAG 91-193; OAG 91-200; 92-ORD-1491; 94-ORD-77; 99-ORD-186; 01-ORD-114.
While KRS 61.874(3) clearly authorizes a public agency to develop a uniform policy under the terms of which it imposes a reasonable copying charge, it does not authorize a policy of selective enforcement. As an open records requester, Ms. Blackburn stands in the same shoes as any other records applicant, and must be accorded the same treatment. If these agencies wish to implement such a uniform policy, and have not already done so, they must formally adopt a rule or regulation per KRS 61.874(3), in tandem with KRS 61.876(1) and (2), and display a copy of the rule, along with the other rules required by KRS 61.876, in a prominent location accessible to the public. The agencies cannot, however, single out Ms. Blackburn for disparate treatment.
With reference to Ms. Blackburn's offer to provide her own copying paper to reduce the agency's costs of reproduction, we find no direct authority on this question in the Open Records Act. On at least two occasions, however, we have encouraged public agencies to which similar offers had been extended, to accept the offers in the interest of promoting the "spirit of cooperation" which informs the Act. Thus, at page 6 and 7 of 00-ORD-74, we observed:
In 99-ORD-186, we recognized that although the Open Records Act contained no provision authorizing a public agency to accept a requester's offer to supply his own copying paper to defray the cost of copies, we noted that the Open Records Act contemplated a spirit of cooperation between the parties. In that appeal, the public agency, consistent with this spirit of cooperation, expressed its willingness to accept the requester's offer and reduce the copying fee for reproducing the documents by the value of the materials he provided. However, as noted above, the decision as to whether to make such an accommodation is subject to the discretion of the agency.
We leave it to these agencies to exercise their discretion on this question in the contemplated spirit of 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.
Pamela BlackburnClark County 5th District Magistrate102 Dry Fork RoadWinchester, KY 40391
John W. MeyersClark County Judge/Executive34 S. Main Street, Room 103Winchester, KY 40391
Henry BranhamClark County TreasurerClark County Courthouse34 South Main, Room 103Winchester, KY 40391
Gardner D. Wagers Clark County AttorneyJames Clark Judicial Center, 1st Floor17 Cleveland AvenueP.O. Box 733Winchester, KY 40391-0733
Footnotes
Footnotes
1 The status of Clark County Generation Center, Inc., as a public agency for open records purposes is not in dispute. The Articles of Incorporation attached to Ms. Blackburn's appeal indicate that its funding is derived from the Clark County Fiscal Court and the City of Winchester, as well as from the state. Moreover, its Board of Directors is comprised of the Clark County Judge/Executive, the Mayor of the City of Winchester, two magistrates of the Clark County Fiscal Court, two Commissioners of the City of Winchester Board of Commissioners, and one person "jointly selected" by the Fiscal Court and the Board of Commissioners. Thus, the Generation Center is a public agency within the meaning of KRS 61.870(1)(h) and (k), and required to comply with the requirements of the Open Records Act. This includes the requirement, found at KRS 61.876(1) and (2), that the Center adopt rules and regulations to provide full access to its records and display a copy of the rules and regulations in a prominent location accessible to the public. Those rules and regulations must, among other things, identify by title and address the Center's official records custodian for open records purposes. Because the Center has not adopted and posted its open records rules and regulations, Ms. Blackburn directed her request to Henry Branham, Clark County Treasurer, whose predecessor in office had apparently assumed responsibility for "the maintenance, care, and keeping" of the Center's records.
2 To the extent that OAG 76-375 dealt with the right of an agency to refuse to create a list, as opposed to the duty of an agency to provide copies of records already inspected, it is inapposite.
3 For purposes of this appeal this fact has no relevance. The Clark County Fiscal Court and Mr. Branham were the de facto custodians of the requested records at the time of Ms. Blackburn's request and responded accordingly.
4 Although the agencies do not cite any statutory provision authorizing their refusal to produce copies on the basis of an unreasonable burden, we assume the agencies are referring to KRS 61.872(6), which provides:
If the application places an unreasonable burden in producing public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records or mail copies thereof. However, refusal under this section shall be sustained by clear and convincing evidence.
"To prevent agencies from exploiting this provision as a means of circumventing the requirements of the Open Records Act, " this office has observed, "the legislature has provided that refusal under this section be sustained by clear and convincing evidence. " 00-ORD-72, p. 2.