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 Kentucky Heritage Council and the Office of State Archaeology subverted the intent of the Open Records Act, short of denial of inspection, by establishing a fee structure that includes a fee for conducting onsite inspection of the agencies' archaeological and historical structures site inventories. For the reasons that follow, and upon the authorities cited, we conclude that the portion of the challenged structure that imposes an onsite inspection fee is legally unsupportable and constitutes a subversion of the intent of the Act.
By letters dated October 26, 2006, and October 31, 2006, Charles M. Niquette, President of Cultural Resource Analysts, Inc., submitted an application to the University of Kentucky's Office of State Archaeology and the Kentucky Heritage Council, respectively, in which he requested that he and his staff be permitted to "continue using the site file data as [they had] in the past -- to conduct onsite inspections of these public records -- without fees . . . ." Mr. Niquette explained that his firm "engage[s] in contract archaeology . . . [to] assist federal, state, and private sector clients meet federally mandated historic preservation compliance obligations . . . ." Continuing, he observed:
In each case, we visited [OSA's and/or KHC's] office[s] and consulted the files to determine whether or not any given study area contained previously recorded archaeological sites and perused applicable reports to determine what was known about the area. These data are essential for assessing the likelihood of finding new sites and gaining an understanding of what is known about the area in general. We also regularly visited your office when preparing proposals to competitively bid new work. In all cases, my employees accessed the site files with little or no assistance from you are your staff.
Mr. Niquette acknowledged his and his staff's obligation to "pay a reasonable fee for . . . copies" of site forms or other documents.
In a response dated November 1, 2006, University of Kentucky Records Custodian Frank Butler characterized Mr. Niquette's letter as an improperly framed request for information, as opposed to a properly framed request for records, asserting that OSA had no obligation to honor the former. 1 Nevertheless, Mr. Butler indicated that OSA would respond to the request. He advised:
From your letter, and based on the records of the secretary of state, it appears that your for-profit company is engaged in a commercial purpose. Your request is to have access to a database at no charge. Please see KRS 61.874 attached hereto relating to fees and non-commercial and commercial requests.
Dr. Crothers advised me that the fee schedule established is in line with other state agencies that maintain such databases, and is designed to cover only our expenses. Even though it seems to your employees that each request takes little time, each request requires our employees' involvement and cumulatively is not insubstantial.
Mr. Butler acknowledged that OSA "previously allow[ed] free access to the database, " but concluded that "we are no longer able to subsidize this expense."
KHC's November 3, 2006, response to Mr. Niquette's application largely mirrored OSA's response. On behalf of KHC, Executive Director David L. Morgan advised:
Your letter indicates that you are a consulting firm that will be using the documents elicited from your searches for a commercial purpose. KRS 61.874(4) provides a mechanism for state agencies to proscribe a reasonable fee for the use of public records for a commercial purpose.
The site check fee currently charged conforms with KRS 61.874(4). The purpose of the fee is not to cover the cost of your employee examining the site records, but rather to offset the cost of updating and maintaining the site inventory records, report libraries, and Geographic Information System coverages (GIS) and databases, so that we can continue to provide this service to preservation consultants. As you are aware, there is a real cost involved with responding to your staff's request for digital data, providing your staff with site numbers, reviewing site forms completed by your staff, entering the site forms into the historic structures site inventory, filing paper records, creating the GIS coverages, and maintaining a report library; not to mention refilling [sic] site forms and reports after your staff completes a site check. Up until this year the Heritage Council has been able to provide this service without having to charge a project specific fee, but due to budget constraints we are no longer able to do so. Therefore we had no choice but to charge a site check fee. But again the fee is not for undertaking the site check, but for the updating and maintenance [of] the historic structures site inventory so that your staff has access to the most up to date data.
On appeal, Mr. Niquette challenges "the decision to charge access fees for onsite inspections of public records . . . ." In support, he cites 97-ORD-8 and 05-ORD-025. 2
In supplemental correspondence directed to this office following commencement of Mr. Niquette's appeal, both the Kentucky Heritage Council and the Office of State Archaeology elaborated on their positions. On behalf of KHC, Commerce Cabinet Deputy General Counsel Catherine York characterized his application as "a request to receive a service for free," asserting that he had:
Never been charged an inappropriate fee for access to or inspection of any public record. The fee involved is for the use of a combination paper and electronic site check database service by a commercial enterprise and compiled by KHC . . . .
The fee charged is appropriate pursuant to KRS 61.874(4) and (6). An agency is permitted to establish a reasonable fee for copies of records and for access to public records by electronic means for commercial purposes.
It was KHC's position that:
The site check fee was created to defray the cost of updating and maintaining the site inventory records, report libraries, electronic Geographic Information System coverages (GIS), and electronic and paper databases. The fee was based on the cost involved in maintaining staff sufficient to research requests for digital data, to compile lists of site numbers, to create the electronic GIS coverages, and to maintain a report library. If the fee was not charged, these databases and other documents could no longer be maintained and the requested documents would no longer be created or even exist.
KHC concluded that Mr. Niquette had "never been charged an improper fee" and that he is "always free to view documents himself, free of charge." 3
Shortly thereafter, OSA submitted its supplemental response to Mr. Niquette's appeal, advancing a number of arguments in support of its position for the first time. OSA maintained that the "'site data file' is not a public record subject to the Open Records Act, " and that the records it contains "are exempt from disclosure because to disclose such information to the public could jeopardize the protection of archaeological sites. " In support, University of Kentucky General Counsel Barbara W. Jones cited the National Historic Preservation Act of 1966, 16 U.S.C. 470, and implementing federal regulations. 4 Alternatively OSA argued that "pursuant to KRS 61.878(6) [sic] the agency is authorized to charge Mr. Niquette a reasonable fee, " noting that he does "not allege that the fee is not in conformity with the provisions of the statute, rather he simply does not want to incur the fee as an expense for his commercial enterprise."
Respectfully, we disagree. Mr. Niquette recognizes his obligation to pay a reasonable fee for copies of records, and understands that as a requester whose underlying purpose may properly be characterized as commercial, 5 he may be required to pay a greater copying fee based on the factors set forth at KRS 61.874(4)(c)1. and/or 2, as opposed to the factors set forth at KRS 61.874(3), relating to requests made for a noncommercial purpose. 6 His objections to the fee structure established by OSA and KHC center on the fact that the structure exceeds the grant of authority found at KRS 61.874 by imposing a standard fee per project for onsite inspection, or "self-access, " as opposed to a fee for copies or for online access. We believe his objections are well-founded.
KRS 61.874 provides, in relevant part:
(1) 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.
. . .
(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.
(4)(a) Unless an enactment of the General Assembly prohibits the disclosure of public records to persons who intend to use them for commercial purposes, if copies of nonexempt public records are requested for commercial purposes, the public agency may establish a reasonable fee.
(b) The public agency from which copies of nonexempt public records are requested for a commercial purpose may require a certified statement from the requestor stating the commercial purpose for which they shall be used, and may require the requestor to enter into a contract with the agency. The contract shall permit use of the public records for the stated commercial purpose for a specified fee.
(c) The fee provided for in subsection (a) of this section may be based on one or both of the following:
(6) Online access to public records in electronic form, as provided under this section, may be provided and made available at the discretion of the public agency. If a party wishes to access public records by electronic means and the public agency agrees to provide online access, a public agency may require that the party enter into a contract, license, or other agreement with the agency and may charge fees for these agreements. Fees shall not exceed:
(Emphasis added.) These provisions speak directly to a requester who wishes to obtain copies of public records or access public records remotely online, authorizing public agencies to establish fees in such cases. These provisions are silent, as is the Open Records Act generally, on establishing fees for onsite inspection regardless of whether the requester's purpose is a noncommercial or commercial one. Simply put, there is no authority for the imposition of fees for onsite inspection or "self-access, " and that portion of the OSA/KHC fee structure constitutes a subversion of the intent of the Open Records Act, short of denial of inspection, within the meaning of KRS 61.880(4).
This office has long-recognized that a public agency cannot "assess the requester any charge for exercising the clearly defined right to inspect public records. " 97-ORD-8, p. 4. 7 That right is firmly rooted in the language of the Act. KRS 61.872(1) provides that "[a]ll public records shall be open for inspection by any person, except as otherwise provided by KRS 61.870 to 61.884, and suitable facilities shall be made available by each public agency for the exercise of this right." Subsection (2) of that provision states that "[a]ny person shall have the right to inspect public records. " KRS 61.872(3)(a) and (b) make it clear that the Open Records Act contemplates records access by two means: onsite inspection during the regular office hours of the agency, 8 or receipt of copies of the records from the agency through the mail. Finally, KRS 61.874(1) provides that "[u]pon inspection, the applicant shall have the right to make abstracts of the public records and memoranda thereof . . . ." As noted, in 1994 the Open Records Act was amended to establish a third mode of access to public records. In addition to onsite inspection and inspection by receipt of copies through the mail, KRS 61.874(6) was enacted to permit online access by means of remote physical connection to the agency's network (as opposed to onsite inspection or "self-access" on agency premises). See, e.g., 05-ORD-025. Discretion rests with the agency to decide whether to provide online access to remote subscribers and to impose fees based on the cost of physical connection to the agency's system, computer time access charges, and, in the case of commercial subscribers, the cost to the agency of the "creation, purchase, or other acquisition of the public records. " KRS 61.874(6)(b) and 61.874(4)(c)(2) .
At the risk of redundancy, we reiterate: the Open Records Act only authorizes public agencies to impose reasonable fees for providing copies of records to an open records request, pursuant to KRS 61.874(3), or permitting the requester to access agency records online by means of remote physical connection to the agency's network, pursuant to KRS 61.874(6). Neither OSA nor KHC can impose fees for onsite inspection and those portions of the fee structure that require payment of fees for onsite inspection or "self-access" are legally unsupportable. We therefore find that these agencies subverted the intent of the Act in the imposition of these fees.
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 Both OSA and KHC question the validity of Mr. Niquette's open records application and subsequent appeal, expressing the view that the application "is outside the scope of the Open Records Act. " Respectfully, we disagree. Although his application and appeal come to us in an unusual procedural posture, that application and appeal raise legitimate open records issues that are, in fact, ripe for review. On November 7, 2006, OSA issued an invoice to Mr. Niquette's firm in the amount of $ 1,000.00 for ten site records checks conducted by Mr. Niquette or a member of his staff. We know of no other way Mr. Niquette could raise the issue of subversion of the intent of the Open Records Act by the imposition of unreasonable, and/or entirely unauthorized fees, than to tender an application for continued onsite inspection at no charge and present proof of OSA's and KHC's refusal to honor said application in their written responses and through the issuance of invoices for onsite site records checks made by Mr. Niquette or his employees.
We find no support in the law for OSA's or KHC's position that Mr. Niquette's application is an improperly framed request for information. It is, instead, a request to conduct an onsite review of records, some electronically stored and some stored in hard copy, of archeological and historic structures inventories, maintained by those agencies, at no charge.
2 Mr. Niquette furnished this office with a copy of the August 23, 2006, memorandum from OSA and KHC notifying archaeological and architectural historical consultants that, pursuant to KRS 61.874(4), and after October 1, 2006, those agencies were "instituting site records check fees for consultants accessing the archaeological and historic structures site inventories" to generate "additional revenues . . . needed . . . to continue to update and maintain site inventory records, report libraries, and Geographic Information System coverages and data bases . . . provided as a service to preservation consultants. " That fee structure was described as follows:
This will be a project specific fee. The fee will be 100 dollars per project. Requests for electronic (GIS) data will not be charged an additional fee. However, requests for paper site checks will incur an additional 40-dollar charge. For those data requests that take more than one hour to complete, there will be an additional charge of 40 dollars per hour. As in the past you will continue to be charged for the copies that you make. You should be aware that in determining an appropriate fee, we did not attempt to recover all of our costs, but only what was needed to continue to update and maintain our respective databases and to be able to respond to data requests from the consulting community. As such in the future it may be necessary to adjust the site check fee, due to additional budget cuts or an increase in expenses associated with maintaining and updating these site inventories. Students and others conducting non-profit research will be exempt from the fee.
In a subsequent memorandum, OSA acknowledged that "most record checks are still done by self-access to the OSA library (73% of the total, digital records = 16% of checks and paper records = 11% of checks), emphasizing that the fees imposed are not fees "for doing site checks," but are instead "fees for access . . . " or, alternatively, "fee[s] for creating the database for commercial purposes . . . ." (Emphasis in original.) Amplifying on the fee structure, OSA explained:
Records checks are done in three ways: 1) self-access to the OSA library, 2) remote request for GIS data, and 3) remote requests for record checks fulfilled by OSA staff in the form of paper maps and information.
1) Consultants doing record checks by self access to OSA will be charged a standard $ 100 fee per project. You may make unlimited visits to the OSA library to conduct background research on each project, and you may stay an unlimited amount of time during business hours.
2) Consultants requesting GIS shape and database files in digital form for specific project areas will be charged a standard $ 100 fee per project. We will continue to encourage consultants to use the electronic GIS records check if possible. There are no additional charges for accessing the OSA library at a later time for additional research on the same project.
3) Consultants requesting record checks in the form of paper maps and information prepared by OSA staff will be charged a standard $ 100 fee per project plus an additional $ 40 per hour per project for our staff to fulfill the request (for a total fee starting at $ 140). If you are unsure about the size or difficulty of your request, contact OSA in advance. There are no additional charges for accessing the OSA library at a later time for additional research on the same project.
[O]nce a project has been registered and the records check obtained by remote request or self-access, there are no additional charges to access the OSA library for additional research on that project.
The memorandum notes that Kentucky Transportation Cabinet projects "are exempt from the OSA fee because KyTC contributes to the creation and maintenance of the GIS database through other obligations," and that "[t]here is no fee for self-access to the OSA library for purposes of preparing a proposal." The memorandum summarizes the fee structure as follows:
Standard records check: $ 100/project
Remote request for paper records check: additional $ 40/project/hour
Remote request for paper or GIS records check for pre-project proposals: $ 40/project/hour
Exceptions:
1. KyTC projects for which a specific contract has been let.
2. Consultants preparing pre-project proposal by self-access to OSA.
3. Students and professionals conducting not-for-profit research.
3 The record on appeal disproves KHC's and the Cabinet's assertions.
4 While it is certainly true that KRS 61.878(1)(k) authorizes public agencies to withhold "[a]ll public records or information the disclosure of which is prohibited by federal law or regulation," and the records at issue in this appeal apparently enjoy protection from public inspection under the referenced federal law and regulation, this does not alter their status as "public records" within the meaning of KRS 61.870(2). That statute defines the term "public record" as "all books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency. " To insure that the public's right to know "is not devalued by the exclusion of items, this term is expansively defined," 05-ORD-72, p. 3, and extends to the site inventories at issue in this appeal insofar as the inventories are, at a minimum, "in the possession of or retained by a public agency. "
Because they enjoy statutory protection and are exempt from public inspection generally, the inventories are not "open records." They are, nevertheless, "public records, " as set forth above, and otherwise subject to the terms and provisions of the Open Records Act. The fact that statutory protection exists for these records avails the OSA naught. OSA concedes that Cultural Resources Analysis, Inc., Mr. Niquette's firm, has, among others, been identified as a firm that meets the "minimum qualifications established by the Secretary of the Interior for Professionalism in Archaeology (Federal Register, Vol. 48, No.190, p. 44739)," and as a firm "experienced in conducting surveys and evaluations of archaeological sites and . . . qualified to carry out Section 106 assessments for federally or federally assisted undertakings in Kentucky." The referenced federal laws authorize restrictions on subsequent disclosure by qualified firms, including Mr. Niquette's firm, but do not otherwise establish conditions for disclosure. Because the records at issue in this appeal are public records under the Open Records Act, questions relating to onsite access, obtaining copies, and reasonable fees are governed by the Act.
5 KRS 61.870(4)(a) defines the term "commercial purpose" as "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 either through commission, salary, or fee." Mr. Niquette readily acknowledges that his is a use of the public records for which he "expects a profit through commission, salary, or fee."
6 We refer the parties to 04-ORD-054, and the authorities cited therein, for an analysis of the reasonableness of copying fees imposed on a commercial user of public records.
7 This decision resulted from a dispute involving access to accident reports and the controversy surrounding the 1994 amendments to KRS 189.635 and KRS 61.870, et seq. That controversy does not alter the point of law for which we cite 97-ORD-8.
8 The right to conduct onsite inspection of public records carries with it the corollary right to obtain copies. The right to obtain copies, in turn, carries with it the corollary duty to pay reasonable copying fees. No fees can be imposed for onsite inspection unless the applicant requests and receives copies.