Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Department of Juvenile Justice (DJJ) violated the Open Records Act by requiring the Juvenile Post Disposition Branch (JPDB) of the Department of Public Advocacy to pay for copies of records requested by its employees prior to receiving the requested records.
In his letter of appeal, Timothy G. Arnold, Manager, (JPDB), provided the following background of the current dispute:
Throughout its history, JPDB had never been charged for records. Following a dispute with a different entity of the Justice and Public Safety Cabinet regarding access to records, the attorney for the Justice Cabinet, Hon. Emily Dennis, stated that the requested records would be provided upon payment of 10 cent per page copying charge. Several days later on March 29, 2006, DJJ first demanded payment of $ 6.30 for 63 copies provided with that letter. (See, March 29, 2006 Letter from Tom Gilsdorf, Exhibit B, at pg.2). Since that time, DJJ has consistently identified a charge for each records request See e.g. April 4, 2006 Letter from Tom Gilsdorf (requesting payment of $ 24.10), Exhibit C), or specifically stated that such a charge would be waived as de minimus. In a letter dated May 17, 2006, DJJ granted a request for copies of some of its standard operating procedures, but refused to provide those records unless JPDB paid a total of $ 276.10 - $ 175.70 for that request, and $ 100.40 for the prior requests (See May 17, 2006 Letter from Tom Gilsdorf, Exhibit D).
(Footnotes omitted.)
It is JPDB's position that state regulations prohibit requiring payment of fees for records requested by state employee of state administrative agencies acting in their official capacity. In support of this position, Mr. Arnold argued:
KRS 61.876(3) states that "The Finance and Administration Cabinet may promulgate uniform rules and regulations for all state administrative agencies. " 200 KAR 1:020 is the regulation which the Finance and Administration Cabinet promulgated under that authority, and purports to set forth the open records process for all state agencies. 200 KAR 1:020, Section 3(1), which sets forth what fees may be charged for an open records request states that "[t]he fees established herein shall not be collected for copies of records requested in the course of their employment by employees of state administrative agencies . . ." (Emphasis added.) The language speaks for itself.
After receipt of notification of the appeal, Emily Dennis, Staff Attorney, Justice and Public Safety Cabinet, responding on behalf DJJ, addressed the issues raised in the appeal, advising in relevant part:
. . . the DJJ seeks from JPDB a reasonable fee for making copies of non-exempt public records, the advance payment for which an agency is authorized to require under the Kentucky Open Records Act. See KRS 61.874(3), KRS 61.874(1), and KRS 61.872(3)(b) . . . .
KRS 61.874(1) provides that a records custodian may require a written request and advance payment of fees for copies, and if applicable, postage. DJJ policy 132.1 -- Open Records Law provides that the official custodian or designee shall respond in writing to open records requests and may include in the response a determination that "[t]he fee shall be paid to the custodian or designee prior to the release of copies of the public record." The fact that DJJ previously did not require pre-payment from the JPDB does not mean that DJJ management was bound to continue this practice indefinitely. DJJ's policy regarding open records has been in place since 2001 and DJJ further placed JPDN on notice of its intent to require payment for requested copies in its open records responses to JPDB beginning with its responses on March 29, 2006.
(Footnotes omitted.)
In support of the DJJ's position that the Open Records Act authorizes the DJJ to charge a fee and require advance payment from JPDB for copies of its records, Ms. Dennis argued:
The clear and unambiguous language of the Kentucky Open Records Act permits the DJJ to require advance payment for copies of its records. See KRS 61.874(3), KRS 61.874(1), and KRS 61.872(3)(b) . A public agency is not required to provide free copies of records under the Open Records Act, even to inmates who claim to be indigent. Friend v. Rees, 696 S.W.2d 325 (Ky. App. 1985). Mr. Arnold's interpretation of 200 KAR 1:020, Section 3(1) directly conflicts with several statutory provisions in the Kentucky Open Records Act that authorize state agencies to require pre-payment of the reasonable cost (deemed at ten cents per page) for copies of records plus postage where applicable. See KRS 61.874(3), KRS 61.874(1), and KRS 61.872(3)(b). Regarding the validity of administrative regulations, the Kentucky Supreme Court has stated that "regulations may not exceed the scope of the statutory provisions on which they are based, and are 'valid only as subordinate rules when found to be within the framework of the policy defined by the legislature.'" Faust v. Commonwealth, 142 S.W.3d 89, 98-99 (Ky. 2004) citing Flying J. Travel Plaza v. Commonwealth, 928 S.W.2d 344, 347 (Ky. 1996). To the extent that the Legislature granted the Finance and Administrative Cabinet discretionary authority under KRS 61.876[3] to promulgate uniform administrative rules and regulations regarding the implementation of the Kentucky Open Records Act, it is incorrect to conclude that the Finance Cabinet has authority to promulgate regulations that conflict with or modify existing statutes. See KRS 13A.100 and KRS 13A.120(2)(i). As stated by the Kentucky Supreme Court, an "agency cannot by rules and regulations, amend, alter, enlarge or limit the terms of legislative enactment. " Camera Center, Inc. Revenue Cabinet, 34 S.W.3d 39, 41 (Ky. 2000). To the extent Mr. Arnold attempts to enforce 200 KAR 1:020 Section 3(1), the Office of the Attorney General should recognize that his interpretation renders the provision null, void, and unenforceable as it directly conflicts with KRS 61.874(3), KRS 61.874(1), and KRS 61.872(3)(b).
(Footnote omitted.)
KRS 61.874(3), KRS 61.874(1), and KRS 61.872(3)(b) and 200 KAR 1:020, Section 3(1) are clearly in conflict. The statutes direct "The public agency may prescribe a reasonable fee for making copies of nonexempt public records . . ." KRS 61.874(3); "the custodian may require . . . advance payment of the prescribed fee, including postage where appropriate." KRS 61.874(1); and "If the person requesting the public records requests that copies be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing. KRS 61.872(3)(b). (Emphasis added). 200 KAR 1:020, promulgated by the Finance and Administration Cabinet under authority of KRS 61.876(3) sets forth uniform rules governing public access to public records maintained by state administrative agencies. 200 KAR 1:020, Section 3(1), sets forth what fees may be charged for an open records request, but states that "[t]he fees established herein shall not be collected for copies of records requested in the course of their employment by employees of state administrative agencies . . ." (Emphasis added). In our view, the statute and the regulation cannot be reconciled.
In addressing the issue of a conflict between an administrative regulation and a statute, this office in 97-ORD-136, pages 2-3, explained:
"Administrative regulations properly adopted and filed have the full effect of law and are required to be enforced." Harrison's Sanitarium, Inc., v. Department of Health, Ky., 417 S.W.2d 137, 138 (1967). To be valid, such regulations:
Henry v. Parrish, 307 Ky. 559, 211 S.W.2d 418, 422 (1948). Simply stated, regulations are valid as long as they are consistent with the statutes authorizing them.
If, on the other hand, a regulation "exceeds statutory authority or [is], in some way, . . . repugnant to the statutory scheme, " it is invalid. Revenue Cabinet v. Joy Technologies, Inc., Ky. App., 838 S.W.2d 406, 409 (1992); Robertson v. Schein, 305 Ky. 528, 204 S.W.2d 954 (1947); Curtis v. Belden Electric Wire & Cable, Ky. App., 760 S.W.2d 97 (1988). Fundamental to this rule of law is the proposition that "encroachment upon the legislative power would be in direct violation of Sections 27 and 28 of our Constitution." Id. The rule codified at KRS 13A.120(2)(i) which provides that "an administrative body shall not promulgate administrative regulations . . . which modify or vitiate a statute or its intent." Thus, "an administrative agency cannot, by its rules and regulations, amend, alter, enlarge, or limit the terms of a legislative enactment. " Curtis at 99.
The statutes direct that public agencies may charge a reasonable fee for copying and mailing public records and may require prepayment for the records prior to delivery. The regulation establishes a reasonable fee of ten (10) cents per copy for public records, but then states, this fee shall not be collected for copies of records requested by State employees in the course of their employment.
In promulgating 200 KAR 1:020, Section 3(1), the Finance and Administrative Cabinet, has limited the terms of KRS 61.874(3), KRS 61.874(1), and KRS 61.872(3)(b) in a manner which is repugnant to the statutory scheme. Although a public agency has the discretion as to whether it will waive the charge of a reasonable fee for copies of public records, it cannot be required to waive the charge by regulation, where the legislature has clearly mandated that it may charge a reasonable fee for copies of records and mailing, where appropriate, and may require prepayment prior to delivery. KRS 61.874(3), KRS 61.874(1), and KRS 61.872(3)(b). Accordingly, we conclude that the DJJ may properly charge a fee and require advance payment from JPDB for copies of its records.
Because the foregoing is dispositive of the appeal, we need not address other bases set forth by the DJJ in support of its actions relative to the issue herein decided.
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.