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 Spencer County Fiscal Court violated the Open Records Act in the disposition of Randy Skaggs' June 12, 2006, request for financial and operational records relating to implementation of KRS 258.195 1 for the period from June 2005 to May 2006. For the reasons that follow, we find that the fiscal court properly responded to that request by transmitting to Mr. Skaggs a copy of the "Agreement for Enforcing Animal Ordinances and Sheltering Services" entered into with the Kentucky Humane Society for the provision of animal control services, and advising him that additional financial and operational records could be obtained from the Humane Society. However, the fiscal court erred in imposing a $ 2.00 copying charge for the eight page document furnished, and in failing to provide him with any additional responsive records in its custody or advise him that no other responsive records reside in its custody.
On June 12, Mr. Skaggs requested that the Spencer County Fiscal Court mail him copies of records identified as follows:
1. Records or documentation indicating, referring to, or pertaining to your county's "animal control officer"
a. the name of the animal control officer and the length of time of his or her employment
b. the animal control officer's weekly, monthly, or annual financial compensation
c. hours per week worked as an animal control officer and whether part-time or full-time
d. animal control officer's employment by the county in another department or job capacity
e. animal control officer's accreditation or certification and training programs attended.
f. specific types of lists, records, and reports kept weekly, monthly, and yearly which address or pertain to stray or unwanted dogs and cats and owner relinquished animals (just a few sample copies, not for the entire year)
g. animal control officer's vehicle type and whether furnished by the county or is privately owned by the animal control officer
h. Number of dogs euthanized by gunshot, date, and reason why
2. Records or documentation indicating, referring to, or pertaining to your county's "animal control shelter"
a. printed and published location of the animal shelter including the street address and telephone number (telephone directory listing would be satisfactory) and photographs of facility if available
b. ownership of the animal shelter by the county, privately owned business, individual, or nonprofit organization (and their pertinent names, mailing address, and telephone number)
c. copies of all contractual agreements between county and nonprofit organization, shelter owner, or operator if not county owned
d. name of the part-time or full-time director or manager of the animal shelter and the number of animal shelter employees and whether part-time or full-time
e. itemization of total annual operating costs and expenditures (including all salaries) plus yearly budget ( from June, 2005 through May, 2006 )
f. printed and published hours of operation (copy of)
g. method of euthanization utilized and amount spent per year ( from June, 2005 through May, 2006 ); receipts too
h. number of animals (dog, cats, puppies, and kittens) euthanized per month and total for the entire year ( from June, 2005 through May, 2006 )
i. method of disposal of dead animals
3. Records or documentation indicating, referring to, or pertaining to your county's "application for financial help"
a. letter of application to the Kentucky Department of Agriculture's Animal Control Advisory Board for a grant with which to construct an animal shelter or improve upon the existing one[.]
Mr. Skaggs agreed to prepay reasonable copying charges not to exceed ten cents per page and the cost of postage.
On June 15, 2006, Spencer County Judge/Executive David Jenkins responded to Mr. Skaggs' request by releasing to him the eight page agreement referenced above, and requesting that Mr. Skaggs remit $ 2.00 for the associated copying costs. He thereafter suggested that Mr. Skaggs contact the Kentucky Humane Society "for information regarding the animal control officer, shelter, and/or financial records . . . ."
The Spencer County Fiscal Court properly provided Mr. Skaggs with a nonexempt public record that was responsive to his request within three business days of receipt of that request. Its actions were, to this extent, consistent with the requirements of KRS 61.880(1) which provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
Its actions were also consistent with the underlying purpose of the Open Records Act as articulated by the Kentucky Supreme Court:
The public's right to know is premised upon the public's right to expect its agencies properly to execute their statutory functions. In general, inspection of records may reveal whether the public servants are indeed serving the public, and the policy of disclosure provides impetus for an agency steadfastly to pursue the public good.
Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Company, Ky., 826 S.W.2d 324, 328 (1992) (emphasis added). Disclosure of the records Mr. Skaggs requested clearly advances an open records related public purpose by enabling the public to monitor the fiscal court's compliance with KRS 258.195 .
The fiscal court also properly notified Mr. Skaggs that responsive records could be obtained from the Kentucky Humane Society. Its actions were, to this extent, consistent with the requirements of KRS 61.872(4) which 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.
The fiscal court fully discharged its obligations under KRS 61.872(4) by notifying Mr. Skaggs that information to which he requested access could be obtained from the Humane Society.
However, we find that the Spencer County Fiscal Court erred in imposing a twenty-five cents per page reproduction charge for the document furnished to Mr. Skaggs. On this issue, KRS 61.874(3), formerly codified as KRS 61.874(2), provides:
The public agency may prescribe a reasonable fee for making copies of nonexempt public records requested for use for noncommercial purposes 2 which shall not exceed the actual cost of reproduction, including the costs of the media 3 and any mechanical processing 4 cost incurred by the public agency, but not including the cost of staff required.
Although the language of this provision has been slightly modified, the meaning and import are the same: The fee charged for copies should be based on the actual expense to the agency, not including the cost of staff. OAG 80-421; OAG 82-396; OAG 84-91; OAG 88-74; OAG 89-9; OAG 91-98; OAG 91-200. The fee is thus limited to the cost of maintaining copying equipment by purchase or rental, and the supplies involved. In Friend v. Rees, Ky. App., 696 S.W.2d 325 (1985), the Kentucky Court of Appeals held that ten cents per page is a reasonable reproduction charge under the Open Records Act. In the absence of proof that the Spencer County Fiscal Court's reproduction charges exceed ten cents per page, we find that the twenty-five cent charge imposed was unreasonable.
We further find that it is incumbent on the fiscal court to produce any remaining documentation in its possession substantiating compliance with KRS 258.195 such as receipts, ledgers, and budgetary or bookkeeping entries. The agreement with which Mr. Skaggs was furnished establishes the financial and operational terms governing the Humane Society's provision of services to the county. Subsection 4(a), for example, requires the Humane Society to "provide quarterly and annual reports of enforcement and sheltering activities, to include registrations and user fees collected" to the fiscal court. These quarterly and annual reports almost certainly contain information responsive to Mr. Skaggs' request. Subsection 6 requires Spencer County to compensate the Humane Society in the amount of $ 50,200.00 for the four year term of the agreement, and Subsection 7 requires the county to pay $ 5,000.00 to the Humane Society for "one-time start costs." Again, documentation substantiating compliance with these provisions would fall within the parameters of Mr. Skaggs' request. We urge the Spencer County Fiscal Court to review the records it maintains under its agreement with the Humane Society, and to disclose any remaining responsive records to Mr. Skaggs for a copying charge not to exceed ten cents per page.
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.
Randy Skaggs
David JenkinsSpencer County Judge/ExecutiveP.O. Box 397Taylorsville, KY 40071
Ruth A. HollanSpencer County AttorneyP.O. Box 395Taylorsville, KY 40071
Footnotes
Footnotes
1 KRS 258.195 provides as follows:
(1) The governing body of each county shall employ, appoint, or contract with an animal control officer, or shall contract with an entity that employs, appoints, or contracts with an animal control officer, and shall establish and maintain an animal shelter as a means of facilitating and administering KRS 258.095 to 258.500. One (1) or more counties may enter into intergovernmental agreements for the establishment of regional animal shelters, or may contract with entities authorized to maintain sheltering and animal control services. Animal shelters shall meet the standards provided by KRS 258.119(3)(b) within three (3) years after July 13, 2004. Governing bodies may adopt additional standards and ordinances related to public health, safety, enforcement, and the efficient and appropriate operation of their shelters and their animal control programs.
(2) Cities may employ, appoint, or contract with animal control officers, or may contract with an entity that employs, appoints, or contracts with animal control officers, for the enforcement of this chapter and local animal control ordinances within their corporate limits. Cities may enter into agreements with the counties for the enforcement of the county's animal control ordinances. The agreement shall include, but shall not necessarily be limited to, setting out the jurisdiction and the duties of the animal control officer respective to the agreement.
(3) Animal control officers shall have the authority to issue uniform citations, local citations, or local notices for the enforcement of the provisions of this chapter, the provisions of the Kentucky Revised Statutes relating to cruelty, mistreatment, or torture of animals, and animal control ordinances in their respective jurisdictions.
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2 Guidelines for establishing fees for nonexempt public records requested for commercial purposes are set forth at KRS 61.874(4)(a), (b), and (c).
3 Defined at KRS 61.870(7) as: "the physical material in or on which records may be stored or represented, and which may include, but is not limited to paper, microform, disks, diskettes, optical disks, magnetic tapes, and cards[.]"
4 Defined at KRS 61.870(8) as: "any operation or other procedure which is transacted on a machine, and which may include, but is not limited to a copier, computer, recorder or tape processor, or other automated device."
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