Request By:
Terry Whittaker
Holli Harrison
Paul R. Markgraf
Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Elsmere Police Department violated, or subverted the intent of the Kentucky Open Records Act in the disposition of Terry Whittaker's request to inspect "[a]ny and all personnel records available under the Open Records Act" relating to 11 named police officers, including but not limited to, "application(s) for employment, prior work history, training records, acknowledgements of receipts of policies or procedures, commendations, reprimands, on-the-job misconduct complaints, internal investigations of misconduct, findings of the internal investigations, disciplinary actions, letter(s) of resignation/discharge/termination, requests for employment verification, authorizations to release information from the personnel file" and other documents of this nature. Insofar as the EPD failed to provide requester with timely access, the EPD violated KRS 61.880(1) and KRS 61.872(2) and (3); 1 likewise, the EPD acted in contravention of 95-ORD-82 and its progeny in essentially charging a fee to comply with KRS 61.878(4). 2
In a timely written response, Elsmere City Attorney Paul R. Markgraf responded to Ms. Whittaker's request on behalf of the EPD, initially advising that because "police personnel files are maintained by the [EPD]" the request had been forwarded to that agency. Because the "detailed request involves a substantial amount of research and the redaction of personal information, " Mr. Markgraf asserted that it was "impossible to review and compile this information within three (3) days. Once each file is researched, the appropriate papers will need to be copied to redact information of a personal nature under KRS 61.878(1)(a)." Then, copies of the "redacted papers" will be made available for inspection and "you will be charged $ .05 for each copy, payable in advance." Citing unspecified "additional exceptions and exemptions under the Open Records Act, " Mr. Markgraf indicated that he would have to "review these files to assist the [EPD] in determining what may be permissible to inspect. " Because he is "not a full-time employee of the City," Mr. Markgraf anticipated that "it may take seven (7) to (10) days to accomplish this review." As a council member, Ms. Whittaker was further advised that complying with her written request "may result in diminished police supervision." In conclusion, Mr. Markgraf noted that Ms. Whittaker would be "contacted when this review is completed with a date you may inspect the records and with the cost of the photocopying involved."
By letter dated August 1, 2008, Ms. Whittaker initiated this appeal challenging the "decision of the City of Elsmere to charge $ .05 per page for copying and redacting documents of the City" that she wishes to inspect. In addition, Ms. Whittaker takes issue with the EPD's "failure to provide the earliest date and time the public record [s] will be available for review as indicated in KRS 61.872(5)." However, she will "defer to the Kentucky Attorney General's opinion of whether Mr. [] Markgraf" provided a detailed explanation of the cause for delay as required by KRS 61.872(5), and whether "KRS 61.878(5) is applicable 'intra-agency' between the administrative and legislative branches of the City of Elsmere."
Upon receiving notification of Ms. Whittaker's appeal from this office, Mr. Markgraf supplemented his response on behalf of the EPD, initially advising that a line of prior decisions confirm that "personnel files, by their nature, contain personal information which is exempt except by court order under KRS 61.878(1)(a), (g), (h) and (i). As such, each individual file must be reviewed to redact excepted information." Because the excepted information must be "redacted in a manner which makes it unavailable to the reviewer," portions of the records must be photocopied in order to respond to Ms. Whittaker's request. "The original copy of such materials should not be altered." Quoting the language of KRS 61.874(3), Mr. Markgraf contends that the EPD "may prescribe a reasonable fee for making copies of non-exempt public records, " and further asserts that "5 cents per page is extremely reasonable."
In support of this position, Mr. Markgraf relies upon OAG 90-108, in which this office held that a charge of 10 cents per page for the copies requested was not excessive as to an indigent inmate based on
Friend v. Rees, Ky. App., 696 S.W.2d 325 (1985). Given that a case of "blank paper" is $ 41.99 per case at Staples, Mr. Markgraf respectfully submits that "the cost of the copier, toner and maintenance agreement would necessitate a charge of no less than 5 cents per page" for the documents containing redactions; however, the original copies of non-exempt documents "may be reviewed and copied as desired for" Ms. Whittaker. In Mr. Markgraf's view, "this charge is reasonably made to the requestor under an Open Records request because, absent such a request, the photocopies would not be necessary to make the redactions. "
With regard to Ms. Whittaker's allegation relative to KRS 61.872(5), Mr. Markgraf explains that her written request was not received until the morning of Monday, July 28, 2008. Although he "attempted to respond by facsimile on July 30, 2008," he was unsuccessful as the attached confirmation report demonstrates. "However, copies were post-marked and mailed on July 30, 2008 to Ms. Whittaker, Mayor Bradford and Chief Greene," which is "clearly within three business days." According to Mr. Markgraf, "a delay of seven to ten days is not unreasonable" as the request "covers the personnel files of 11 different officers," the "City of Elsmere is currently operating very short-handedly, and the City Attorney has been requested to review whether police records fall within the exceptions" codified at KRS 61.878(1)." This period of time "is nowhere close to the three (3) months reflected in OAG 92-35, but less than the two (2) weeks found to be reasonable in that ruling."
In addressing Ms. Whittaker's question regarding the "interaction" of the administrative and legislative branches of the City, Mr. Markgraf notes that although Ms. Whittaker is a member of the Elsmere City Council, "the Elsmere City Council has not requested these records. Nor was the request made by Ms. Whittaker done as a member of the Elsmere City Council." To the contrary, Ms. Whittaker "did not identify herself as a member of the City Council" when making other such requests to different agencies (Grant County Sheriff Chuck Dills, for example). Since "there is no 'intra-agency' issue," Mr. Markgraf does not believe this office needs to address her contention. 3
Because the EPD has not alleged that any of the records in question are "in active use, in storage or not otherwise unavailable," nor did the agency invoke KRS 61.872(5) in delaying access, the question of whether a "detailed explanation" was provided is not determinative. In addition, the agency's interpretation of KRS 61.874(3) is based on the flawed premise that a public agency is entitled to recover the costs associated with redacting material pursuant to KRS 61.878(4) before making the records available for inspection. 4
Addressing the procedural issue presented, this office finds that the EPD issued a timely written response within three business days; however, the EPD erred in failing to also make redacted copies of the requested personnel files available for inspection within that period of time given that KRS 61.872(5) was not invoked nor does it apply inasmuch as the records are not "in active use, in storage or not otherwise available[.]" 5 As a public agency, the City of Elsmere/EPD is obligated to comply with the procedural and substantive provisions of the Open Records Act. More specifically, KRS 61.880(1) contains the guidelines for responding to requests made pursuant to the Act.
In relevant part, KRS 61.880(1) 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.
In applying this provision, the Attorney General has consistently observed:
"The value of information is partly a function of time." Fiduccia v. U.S. Department of Justice, 185 F.3d 1035, 1041 (9th Cir. 1999). This is a fundamental premise of the Open Records Act, underscored by the three day agency response time codified at KRS 61.880(1). Contrary to [the City's] apparent belief, the Act contemplates records production on the third business day after receipt of the request , and not simply notification that the agency will comply. In support, we note that KRS 61.872(5), the only provision in the Act that authorizes postponement of access to public records beyond three business days, expressly states:
Additionally, we note that in OAG 92-117 . . . this office made abundantly clear that the Act "normally requires the agency to notify the requester and designate an inspection date not to exceed three days from agency receipt of the request." OAG 92-117, p. 3. Only if the parameters of a request are broad, and the records implicated contain a mixture of exempt and nonexempt information, and are difficult to locate and retrieve, will a determination of what is a "reasonable time for inspection turn on the particular facts presented. " OAG 92-117, p. 4. In all other instances, "timely access" to public records is defined as "any time less than three days from agency receipt of the request." OAG 82-300, p. 3; see also 93-ORD-134 and authorities cited therein. Pursuant to KRS 61.872(5), "any extension of the three day deadline for disclosure must be accompanied by a detailed explanation of the cause for the delay, and a written commitment to release the records on the earliest date certain. " 01-ORD-38, p. 5.
01-ORD-140, pp. 3-4 (emphasis added). As in 01-ORD-140, this office must conclude that insofar as the EPD failed to produce the records for inspection within three business days, albeit by a relatively small margin and seemingly in good faith under extenuating circumstances, 6 the fact remains that Ms. Whittaker did not receive "timely access" to the records.
In a seminal decision addressing these duties, the Attorney General emphasized that "[n]othing in the statute permits an agency to postpone or delay this statutory deadline . . . The burden on the public agency to respond in three working days is, not infrequently, an onerous one. Nevertheless, the only exceptions to this general rule are found at KRS 61.872(4) and (5)," neither of which the agency invoked here. 93-ORD-134, p. 3. More recently, this office reiterated that any extension of this deadline for disclosure "must have a statutorily recognized basis [records in active use, in storage or not otherwise available], must be accompanied by a detailed explanation of the cause for delay, and must be premised on a written commitment to release the records on the earliest date certain. " 08-ORD-021, p. 6 (original emphasis). If none of the conditions are satisfied, as in this case, 7 a public agency is required to notify the requester of its decision within three working days, and to afford the requester timely access to the requested records . 02-ORD-165, p. 3, citing 93-ORD-134. On this issue, 07-ORD-179 is controlling; a copy of that decision is attached hereto and incorporated by reference.
In light of this conclusion, the question becomes whether the EPD subverted the intent of the Open Records Act "short of denial of inspection" within the meaning of KRS 61.880(4) by imposing excessive copying fees. More specifically, this office must determine whether a public agency is entitled to recover costs associated with making redacted copies available for inspection; the unequivocal answer is "no." In 95-ORD-82, the Attorney General analyzed KRS 61.847(3) as it relates to the duty imposed on public agencies to "separate the excepted and make nonexcepted material available for examination" pursuant to KRS 61.878(4). Of particular significance, this office held that separating excepted material is not equivalent to producing a record in a specially tailored format or nonstandardized format within the meaning of KRS 61.874(3) as required for a public agency to recover staff costs; rather, agencies are required to discharge this duty under KRS 61.878(4) and must bear the cost of redaction . Id., p. 4. "If it is necessary to separate confidential from non-confidential information in order to permit the inspection, examination, or copying of public information, the [public] agency shall bear the cost of such separation." Id. (Citation omitted.) In our view, 95-ORD-82 is controlling on the facts presented; a copy of that decision is attached hereto and incorporated by reference. When viewed in conjunction, KRS 61.878(4), which mandates redaction of excepted material when it is commingled with excepted material, and the reasonable fee provision found at KRS 61.874(3), which specifically excludes the cost of staff required, leave no doubt as to the General Assembly's intention that public agencies bear the cost of redaction. Id. See also 98-ORD-33; 07-ORD-162. Any other conclusion would result in subversion of the intent of the Open Records Act, within the meaning of KRS 61.880(4), through the imposition of excessive fees. 8
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 Pursuant to KRS 61.872(2):
Any person shall have the right to inspect public records. The official custodian may require written application, signed by the applicant with his name printed legibly on the application, describing the records to be inspected. The application shall be hand delivered, mailed, or sent via facsimile to the public agency.
In relevant part, KRS 61.872(3) provides that a person may inspect public records during "the regular office hours of the public agency [.]"
2 Because the agency's reliance on KRS 61.878(1)(a) as the basis for withholding certain documents and information is consistent with prior decisions of this office and is not challenged here, consideration of this issue is unwarranted. With regard to accessibility of personnel files, the analysis contained in 03-ORD-012 is controlling; a copy of that decision is attached hereto and incorporated by reference.
3 With regard to application of KRS 61.878(5), the analysis contained in 01-ORD-119 is determinative; a copy of that decision is attached hereto and incorporated by reference. See 96-ORD-177. While exchange of otherwise exempt public records by public agencies has been deemed a "laudable goal," and is one that has been strongly encouraged, the Attorney General has concluded that "each agency must retain a reasonable measure of discretion to decline the invitation to share its records." 96-ORD-177, p. 7. Here, the agency has not denied access; however, a denial could not be deemed a violation for this reason insofar as KRS 61.878(5) is not a mandatory provision. 01-ORD-119, p. 6. See 07-ORD-063, pp. 8-9 (encouraging the agency to reconsider its position in light of the unique facts presented) . To the extent Ms. Whittaker and the EPD are part of the same agency, i.e., the City, a reasonable amount of mutual cooperation would certainly be consistent with KRS 61.878(5) although the record is unclear as to whether she is acting in her official capacity as a member of the City Council.
4 On August 28, 2008, after this decision was already completed, the EPD supplemented its prior written responses, advising Ms. Whittaker that when redactions were necessary, "photocopies were made and the personal information was obliterated with permanent marker." According to Mr. Markgraf, she will be charged "5 cents per copy made for the redacted pages" which, upon payment, she will be entitled to keep; copies of "non-redacted records are available at the cost of 10 cents per copy." Attached to the agency's letter is a copy of a sheet documenting the number of pages copied from each police officer's file "and the number of pages for which redactions were necessary." In proposing to charge Ms. Whittaker a fee of $ 15.50 to inspect or, in the alternative, $ 76.00 to receive copies ($ 15.50 for the redacted copies in addition to the $ 60.50 properly charged for copies of the remaining documents if requested) of the records at issue, the EPD subverted the intent of the Act within the meaning of KRS 61.880(4), for the reasons outlined at pp. 8-9. To the extent the EPD asks Ms. Whittaker to "call at least two hours ahead so Chief Greene will be available to answer questions or provide verification concerning the copies[,]" the EPD imposes another impermissible restriction on access.
5 Even assuming that any of these conditions were satisfied, the agency's response does not contain the requisite "detailed explanation of the cause for delay" nor does it specify the "earliest date" on which the records will be available for inspection. Although the EPP anticipated having the records available in seven to ten days, KRS 61.872(5) "envisions designation of the place, time, and earliest date certain , not a projected or speculative date, when the records will be available." 01-ORD-38, p. 7 (emphasis in original).
6 On appeal, Mr. Markgraf advises that Elsmere's "'Records Custodial Staff" includes two persons: The City Clerk/Treasurer, Holli Harrison who is currently out of the office on Emergency Medical/Family Leave," and Assistant Clerk/Typist Jessica Ryan, who "was hired approximately four weeks ago to replace another individual who left the City's employment for a similar job with the City of Erlanger, Kentucky." Police Clerk Joyce Jump "attends to the day-to-day clerical duties" at the EPD; Mr. Markgraf serves on a part-time basis. As the Attorney General has often noted, the duty to respond to an open records request, "and to afford the requester timely access to the records identified in his request is . . . as much a public servant's legal duty as any other essential function." 00-ORD-117, p. 5. Accordingly, the "temporary unavailability of the City Clerk does not relieve the City of its obligations under the Open Records Act. " 96-ORD-238, p. 3.
7 Although this office appreciates the staffing issues the City is facing, as a public agency, the City/EPD is required to have a mechanism in place "to ensure the timely receipt and efficient processing of requests" made under the Act. 05-ORD-064, p. 6. If the records custodian "goes on vacation, or is unable to attend to his duties because of illness, or an accident, the agency is obligated to designate another person to review and handle open records requests" in the custodian's absence. 02-ORD-165, p. 3. "Neither the press of business nor the absence of the official custodian justifies a delay in providing access to public records. " Id. In other words, it is "incumbent on [the City/EPD], as it is on any public agency, to make proper provision for the uninterrupted processing of open records requests." 01-ORD-140, p. 6.
8 To clarify, Mr. Markgraf's analysis of the reasonable fee provision is otherwise consistent with prior decisions of this office such as 01-ORD-136, a copy of which is attached hereto and incorporated by reference. In Friend v. Rees, Ky. App., 696 S.W.2d 325 (1985), the Kentucky Court of Appeals declared that a fee of ten cents per page for hard copy records is a reasonable fee; however, a public agency is not authorized to recover any fee merely to redact otherwise nonexempt records in preparation for inspection as the City/EPD proposed here.