Request By:
Heather MacWilliamsRamona W. Newman
City Clerk
315 West Second Street
P.O. Box 697
Frankfort, KY 40602-0697Robert C. Moore
City Solicitor
Hazelrigg & Cox
P.O. Box 676
Frankfort, KY 40602-0676
Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the City of Frankfort subverted the intent of the Open Records Act, short of denial of inspection, 1 in charging WTVQ-TV (Action News 36) Investigative Reporter Heather MacWilliams for the cost of staff required, in addition to "the actual cost of reproduction, including the costs of the media and any mechanical processing cost incurred by" 2 the City, in producing the Frankfort Fire Department "payroll including each employee's base pay and any overtime pay they may have received [from] 2001 to present" and "a list of employee training hours as documented for fire incentive pay from 2001 to present." In the absence of any evidence substantiating the City's assertion that staff costs may be recovered per KRS 61.874(3) because the requested payroll and training records are not maintained in a standardized format, 3 this office concludes that $ 537.37 (only $ 24.20 of which is for copies) is an excessive fee, the imposition of which constitutes a subversion of the intent of the Act short of denial of inspection. Although the City is not statutorily obligated to produce records in a nonstandardized format and may recover staff costs if doing so at its discretion, the record is devoid of evidence to justify such action here; in other words, the City has failed to satisfy its burden of proof under KRS 61.880(2)(c).
By letter directed to Ramona Newman, City Clerk, on May 8, 2007, Ms. MacWilliams submitted the request in question; Ms. Newman responded via facsimile on May 16, 2007, 4 by advising Ms. MacWilliams that records containing the information requested were "ready for pickup at City Hall. The charge for this information is $ 537.[37]." 5 Parroting the language of KRS 61.874(3), Ms. Newman further advised Ms. MacWilliams that records she requested "were not in a standardized format and significant staff hours were necessary to meet this request." More specifically, Ms. Newman provided the following itemization of costs incurred:. Payroll Clerk5 hours @ $ 20.10/hou r = $ 100.50. Fire Department6 hours @ $ 32.27/hour = $ 193.62Training Officer. Fire Chief4 hours @ $ 39.68/hour = $ 158.72. Administrative Aide3 hours @ $ 20.11/hour = $ 60.33. Copies242 pages @ 10 cents/page = $ 24.20
Noticeably absent from the City's response is any explanation to support imposition of these charges. 6
Arguing that her written request is both simple and straightforward, Ms. MacWilliams initiated this appeal via facsimile on May 17, 2007. In her view, the request should not "have taken four separate city employees and 18 man hours to complete." It is Ms. MacWilliams' understanding that such information "is stored in a computer data base and easily accessible." 7 In her "extensive experience as a reporter, similar requests to other municipalities have never resulted in such an egregious cost." On Monday, May 21, 2007, this office issued a "Notification to Agency of Receipt of Open Records Appeal" to Ms. Newman and Robert C. Moore, City Solicitor, advising that pursuant to 40 KAR 1:030, Section 2, "the agency may respond to this appeal." Although the Notification further indicated that any response on behalf of the City must be received no later than May 25, 2007, this office has not received a response nor have we been advised of any action taken by the City relative to Ms. MacWilliams' request. 8
In relevant part, KRS 61.880(2)(c) provides that the "burden of proof in sustaining the action shall rest with the agency"; imposition of charges for producing records in a nonstandardized format is no exception. To the contrary, a public agency such as the City has the burden of proof relative to fees it charges for copying public records and must substantiate any departure from the amount deemed reasonable on the basis of the factors identified at KRS 61.874(3). 94-ORD-43, p. 3. Because the City has not attempted to substantiate the assertion that payroll and training records are not available in a standardized format, nor has the City justified the otherwise impermissible fee imposed, despite having two opportunities, the City has necessarily failed to satisfy its burden of proof.
In a number of recent decisions, the Attorney General has addressed the issue of public access to governmental databases, recognizing as a threshold issue, that a "database is unquestionably a 'public record' as that term is defined at KRS 61.870(2)." 03-ORD-214, p. 6, citing 00-ORD-206, p. 7; 06-ORD-148; 04-ORD-176. These decisions also reaffirm that a public agency is not required to produce a record in a nonstandardized format but may exercise its discretion affirmatively and recoup both actual costs and staff costs; however, the instant appeal is distinguishable insofar as the requester did not ask for the records in a particular format nor did the public agency offer any explanation, either beforehand or afterward, of why such extraordinary measures would be required to produce the records or how much the fee would be increased as a result. See 02-ORD-148; 99-ORD-68; 98-ORD-151; 96-ORD-133; 95-ORD-82. Because Ms. MacWilliams has neither asked the City to reformat its existing database for the purpose of satisfying the request nor asked the City to tailor the format in order to meet her particular needs, it was not within the City's discretion to deny the request per KRS 61.874(3). Likewise, the City was not authorized to charge for staff costs without prior consent or any explanation since "the public's right of access to nonexempt records is premised, in part, on the right to obtain those records at a nonprohibitive charge, and because public agencies have a corollary duty to manage and maintain their records so as to facilitate efficient and cost-effective retrieval." 05-ORD-116, p. 1.
In our view, the reasoning contained in 05-ORD-116 is equally applicable on the facts presented although the scarcity of evidence in this appeal prevents a definitive resolution as to whether the format in which the records are normally maintained is properly characterized as nonstandard. Assuming the City has a "pre-existing query, filter, or sort capable of extracting the information" requested, Ms. MacWilliams' request must be considered a standard request; conversely, if the information requested is not contained in a pre-existing query, filter or sort, Ms. MacWilliams' request must be considered nonstandard, in which case the City is permitted to recover staff and programming costs incurred "the first time the request is made." Id., pp. 4-5 (citation omitted). While the City is not statutorily obligated to create a program designed to extract the information requested from its existing database, in the alternative, the City must provide Ms. MacWilliams with a copy of the entire database containing the information requested in standard format. If the City elects to redact any protected information of a personal nature in accordance with KRS 61.878(1)(a), the City, rather than Ms. MacWilliams, must bear the cost of redaction pursuant to KRS 61.878(4) and prior decisions of this office. 05-ORD-129, p. 1; a copy of that decision is attached hereto and incorporated by reference. Until the City substantiates the assertion that payroll and training records are not maintained in a standardized format, the City is not entitled to recover staff costs associated with honoring Ms. MacWilliams' request; $ 537.37 is an excessive fee, the imposition of which constitutes a subversion of the intent of the Open Records Act, in the absence of any supporting evidence.
A party aggrieved by this decision may appeal it by initiating an 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 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.
2 Pursuant toKRS 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 group, the public agency may at its discretion provide the requested format and recover staff costs as well as any actual costs incurred.
3 Generally speaking, inspection of personnel records, especially those documenting the salaries earned by public employees and those which contain qualifications and relevant prior work experience, such as applications for employment and resumes, does not constitute an invasion of privacy in violation of KRS 61.878(1)(a) although certain information may be redacted on that basis. See 07-ORD-056, pp. 5-8 and 05-ORD-037, pp. 3-5; 02-ORD-232.
4 With regard to application of KRS 61.880(1) and KRS 61.872(5), the analysis contained in 05ORD-134 is controlling; public agencies are required to issue a written response within three business days upon receipt of a request. Because neither party addresses the issue on appeal, nor is the record clear on this point, further discussion is unwarranted.
5 Although Ms. Newman first indicates that $ 537.41 is the amount owed (the amount specified in Ms. MacWilliams' letter as well), the accurate total as reflected beneath her calculations, is $ 537.37.
6 In Friend v. Rees , the Kentucky Court of Appeals held that ten cents per page is a reasonable charge for reproducing standard hard copy records; the Attorney General has adopted this position in a long line of decisions, consistently recognizing that "in approving a ten cents per page copying charge 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; 04-ORD-106; 03-ORD-224; 99-ORD-40. Such a policy is entirely consistent with KRS 61.874(1) and 61.874(3).
Of particular significance here, this office has also consistently held that public agencies had to recalculate their copying fees to conform to the requirements of KRS 61.874(3), as construed in 01-ORD-136 and the authorities cited therein, unless the agencies could substantiate that actual costs in excess of ten cents were incurred in reproducing the records at issue. Our holding today is a logical extension of the reasoning in 01-ORD-136 and its progeny.
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7 Given the lack of evidence to the contrary, this office must assume that Ms. MacWilliams' understanding is correct; our analysis proceeds accordingly.
8 In a letter directed to this office via facsimile on May 17, 2007, Ms. MacWilliams argued that when records are requested for a noncommercial use, "agencies cannot charge for the cost of staff labor[,]" quoting the language of KRS 61.874(3) in support of her position. Attached to Ms. MacWilliams' letter, "as further evidence supporting" her appeal, is a copy of an identical request to the Kentucky Fire Commission, also dated May 8, 2007, in response to which Ms. MacWilliams received copies of 627 pages at $ .10 per page for a total cost of $ 62.70 as evidenced by the Commission's response. Noticeably absent is any indication that Ms. MacWilliams forwarded a copy of this correspondence to the City; however, this evidence is persuasive rather than conclusive. In other words, the fact Ms. MacWilliams was able to obtain the records at a more reasonable cost from an entirely separate public agency lends credibility to her position but cannot be viewed as dispositive since the agencies may have different equipment and resources and/or the Commission may have waived the staff costs. Since the Commission is not a party to this appeal nor is our conclusion premised exclusively, or primarily, upon this evidence, further discussion is unnecessary.