Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Letcher County Property Valuation Administrator subverted the intent of the Kentucky Open Records Act, short of denial and within the meaning of KRS 61.880(4), 1 by imposing an excessive fee on requesters with a "commercial purpose" 2 for accessing certain public records available on his website. Because the appellant, Ray Gough, had a "commercial purpose" in requesting access, 3 the PVA was authorized to recover the "cost of physical connection to the system and reasonable cost of computer time access charges" per KRS 61.874(6)(a) in addition to a "reasonable fee" based upon the factors identified at KRS 61.874(4) 4 per KRS 61.874(6)(b). In the absence of evidence to substantiate imposition of the $ 400.00 fee imposed on Mr. Gough, however, which neither the PVA nor the Finance and Administration Cabinet, Department of Revenue has provided, this office must conclude that such a fee was excessive and subverted the intent of the Act.
By letter dated July 26, 2010, Mr. Gough, acting on behalf of Hazel Enterprises, LLC, advised the PVA that he was enclosing a "money order and invoice for $ 400.00 for online access to PVA records" in order to "prepare for the delinquent tax sale." Mr. Gough "officially assert[ed]" his company's "objection to the price of $ 400.00," but indicated they had "no other choice at this time to access these public records. " By letter directed to "Randy Hall, Letcher County PVA" on August 2, 2010, Mr. Gough requested "[c]opies of all receipts and[/]or records [documenting expenses incurred] in creating the online subscription website/ database that can be subscribed to for the rate of $ 400.00 to access 600 properties," "[c]opies of all receipts and[/]or records [documenting expenses] incurred for the recurring upkeep such as maintenance or hosting for the same said [sic] website/ database since it was created," and "[c]opies of all receipts or records of income received form subscriptions to the website/ database since it was created."
In a separate letter also sent on August 4, 5 Mr. Gough advised the PVA that "[h]aving no other option" due to "being on the other end of the state we subscribed to your online website/ database. " Mr. Gough reiterated his belief that "$ 400.00 to access a database for public records is in violation of KRS 61.874" as it "exceeds the cost to your agency of media, mechanical processing, and staff required to produce a copy of the public record or records and exceeds the cost to your agency of the creation, purchase, or other acquisition of the public record [s]." As a "remedy," Mr. Gough suggested that $ 50.00 was a reasonable fee and requested a $ 350.00 refund. Mr. Gough noted that Hazel Enterprises subscribed to the Mercer County PVA website for $ 50.00 "unlimited for one month," Scott County charged $ 44.00 to access 400 records, Jefferson County charged $ 25.00 "unlimited for one month," Kenton County charged $ 25.00 for 12 hours of unlimited access, Lyon County charged $ 10.00 for 24 hours of unlimited access, and Fayette County charged nothing.
Having received no response to either of his letters, Mr. Gough contacted the PVA by telephone on August 16 to check on the status of his "request" and "complaint." By letter dated August 19, the PVA advised Mr. Gough that based on their conversations of August 16 and 17, he was enclosing "a copy of the invoice for the setup and maintenance fees for the Letcher County PVA website, [and] a list of the subscribers and subscription fees paid . . . to date[.]" The PVA also returned Mr. Gough's check and indicated that his office would also receive "a recurring bill in April 2011 for the amount of $ 3,800[,]" which Mr. Gough could verify by contacting "Todd at [QPUBLIC, LLC] P O Box 3578 DeLand, Fl 32723-3579."
By letter dated August 24, Mr. Gough initiated this appeal, indicating that his "complaint" is "based on an alleged violation of KRS 61.874 where the fee they charged us to access their online database was $ 400.00." Noting that he finally received a written response from the PVA "a full 16 days after they signed for our request and complaint [sent by certified mail]," 6 Mr. Gough correctly observed that said response "did not address the complaint in any way." Although the copies received "were not exactly the specific records" 7 that Mr. Gough requested, he noted those records "do show that the Letcher [C]ounty PVA [O]ffice has sold subscriptions in the amount of $ 2,060.00 in a four month period which averages $ 515.00 per month. The receipts of expenditures show that the cost to their office is $ 4,000.00 per year, which averages [to] $ 333.33 per month." Accordingly, Mr. Gough argued, the PVA "charged us more than their cost of media, mechanical processing, and staff required [or] the creation, purchase, or other acquisition of the public record [s]." Because the list provided "shows that they have 5-12 users for this online website" in the office, Mr. Gough asserted that "the full burden of the $ 4,000.00 annual fee should not fall on the subscribers alone." In the absence of any explanation of how or if the fee imposed is based on the permissible cost factors identified at KRS 61.874 or supporting documentation of any kind, this office agrees that $ 400.00 is an excessive fee, imposition of which subverted the intent of the Act per KRS 61.880(4) .
As previously indicated, the PVA did not address Mr. Gough's objection regarding imposition of the $ 400.00 fee. On August 31, 2010, this office issued a "Notification to Agency of Receipt of Open Records Appeal" to PVA Randy Hall, indicating that "[p]ursuant to 40 KAR 1:030 Section 2, the agency may respond to this appeal." The Notification further indicated that his response "must be received no later than Tuesday, September 7, 2010." A copy of the Notification was also forwarded to Jeff Mosley, General Counsel for the Department of Revenue, and Letcher County Attorney Harold D. Bolling. 8 As of today, Mr. Mosley is the only person from whom this office has received any kind of a response. His letter of September 7 merely advised that the Finance and Administration Cabinet is not the custodian of the records to which Mr. Gough sought access in his August 7 request, and the agency therefore "possesses no documents responsive to his request." The Cabinet did not address the primary issue raised in his appeal, namely, whether the PVA imposed an excessive fee, and the agency later declined an opportunity to elaborate upon its position. In sum, the PVA has not attempted to justify imposition of the $ 400.00 fee based upon the relevant statutory factors nor has anyone acting on his behalf.
In 1994, KRS 61.874(6) was enacted to establish a third method (in addition to onsite inspection and receipt of copies through the mail) of providing access to public records under the Open Records Act - online access to public records in electronic form. Pursuant to KRS 61.874(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). 9 The parties to this appeal seem to agree that discretion regarding whether online access should be provided rests with the agency but essentially disagree as to application of KRS 61.874(6) beyond that.
As the literal and unambiguous language of KRS 61.874(6)(1) and (b) evinces, the General Assembly intended to distinguish between the fees generally imposed for online access and those which may be imposed when the records are requested for a commercial purpose as in this case. Public agencies may require parties requesting online access to enter into a contract, license, or other agreement with the agency in either case, such as the "subscription" agreement which prompted this appeal. Public agencies may also charge fees accordingly; however, such fees "shall not exceed" the "cost of physical connection to the system and reasonable cost of computer time access charges" if the requester does not have a commercial purpose and may not exceed that amount plus "a reasonable fee based on the factors set forth" at KRS 61.874(4)(c) even if the requester does have a commercial purpose. The record in this case is completely silent on which of those factors, if any, the PVA relied upon to determine the amount of the challenged fee.
Among the documents provided to Mr. Gough in response to his related but separate request for public records were two invoices from QPUBLIC, LLC, the first dated April 29, 2010, for "construction of the PVA website including all static pages and searchable database" ($ 1,500.00), "online mapping module" ($ 1,500.00), and "online aerial photography" ($ 1,500.00), minus a "Parcel Size Discount" of $ 700.00 for a total of $ 3,800.00, and the second dated May 3, 2010, for "Domain name registration and hosting for letcherpva.com" ($ 200.00). Both invoices cover the period from May 2010-April 2011. Also included were a subscription list created on April 28, 2010, and the "PVA Open Records Commercial Fee Guidelines," which, in relevant part, contain the "Commercial Website Fee Guidelines" and provide the following Website Subscription Fee Schedule:
120 records/year $ 100
300 records/year $ 200
600 records/year $ 400
1200 records/year $ 750
Noticeably absent from the Schedule is any reference to a statutory or a regulatory basis for it. Equally lacking is any mention of the factors upon which said figures were premised.
In 02-ORD-089, the Jefferson County PVA and the Department of Revenue (then Revenue Cabinet) cited KRS 133.047(4) 10 in providing a cost breakdown (which is lacking here) that was calculated on the basis of the "PVA Open Records Fee Guidelines" to a requester with a non-commercial purpose. Noting that the reasonable fee schedule the Cabinet is empowered to develop is "to be used in compensating for the cost of personnel time . . . ," and that "no additional cost factor is identified in the statute, and the 'personnel time' cost factor cannot be included in copying charges when the request is made by a person" with a non-commercial or non-business purpose, this office "question[ed] whether to have legal effect, these fees, as they relate to requests made for commercial or business purposes, should be promulgated into regulation pursuant to KRS 13A.100(3)." 02-ORD-89, p. 11. Because the fees imposed were not based on a commercial purpose in that case, "and because the fees do not, in any event, exist in administrative regulation, " this office analyzed the propriety of the fees under the reasonable fee provision of the Open Records Act, KRS 61.874, rather than following the line of decisions "recognizing that a specific enactment of the General Assembly relating to copying fees, such as the fee schedule for county clerks codified at KRS 64.012, overrides the general fee provisions of the Open Records Act, at least insofar as fee guidelines relate to requests made for a commercial purpose. " Id., p. 11.
This appeal is factually distinguishable from 02-ORD-89 insofar as the requester does have a commercial purpose, and the PVA therefore is permitted to recover the cost of "personnel time" (or the cost of "staff" in Open Records parlance). 11 However, the significant fact is that our analysis must also proceed under KRS 61.874 because KRS 133.047(4), which is not even referenced anywhere in the record on appeal here, but more importantly, is not a specific legislative enactment such as KRS 64.012, does not appear to have a corresponding regulation containing specific fees nor has the PVA provided a cost breakdown. 12 As in 02-ORD-89, "[b]oth the PVA and the Revenue Cabinet (Department of Revenue) were afforded an opportunity to explain how the fee[] imposed on [the requester is] tied into the cost factors set forth in KRS 61.874[(4)]. Neither the PVA nor the [Department of Revenue] offered an explanation for how the fee[] imposed correspond[s] to these factors." Id., p. 12. Because "no meaningful attempt [or any attempt in this case] was made to substantiate the . . . fee[] imposed," this office must conclude that $ 400.00 is an excessive fee, imposition of which subverted the intent of the Open Records Act within the meaning of KRS 61.880(4). 02-ORD-89, p. 12; compare 03-ORD-025 (then Revenue Cabinet demonstrated reasonableness of charge for copies requested for commercial purpose based on factors identified at KRS 61.874(c) on behalf of PVA). If the PVA can substantiate that said fee actually reflects the "cost of physical connection to the system and reasonable cost of computer time access charges," and/or "a reasonable fee" based on the cost of "media, mechanical processing, and staff, " and/or the cost of creation, purchase, or other acquisition, "this holding will, of course, not stand." Id.
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.
Ray GoughRandy HallJeff Mosley
Footnotes
Footnotes
1 KRS 61.880(4) provides:
If a person feels the intent of [the Open Records Act] 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 In accordance withKRS 61.870(4):
(a) "Commercial purpose" means 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.
(b) "Commercial purpose" shall not include:
1. Publication or related use of a public record by a newspaper or periodical;
2. Use of a public record by a radio or television station in its news or other informational programs; or
3. Use of a public record in the preparation for prosecution or defense of litigation, or claims settlement by the parties to such action, or the attorneys representing the parties.
3 Neither party addresses the issue directly; however, a review of the record as a whole confirms that Mr. Gough had a commercial purpose within the meaning of KRS 61.870(4)(a).
4 KRS 61.874(4) provides:
(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 that agency. The contract shall permit use of the public records for the stated commercial purpose for a specified fee.
Subsection (c), which identifies the permissible cost factors, will be discussed later in the decision.
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5 Although Mr. Gough cited KRS 61.846 and labeled his protest a "complaint," KRS 61.846 is a provision of the Open Meetings Act, rather than the Open Records Act, just as "complaint" and "remedy" are terms generally utilized in reference to the former whereas "request" is utilized in reference to the latter. Mr. Gough also mischaracterizes his Open Records Appeal as a "Kentucky Open Meetings Act Violation Appeal"; nevertheless, whether a public agency such as the PVA subverted the intent of the Open Records Act within the meaning of KRS 61.880(4) by imposing an excessive fee is a justiciable issue under the Open Records Act. Our analysis proceeds accordingly.
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6 The PVA clearly violated the mandatory terms of KRS 61.880(1) in failing to issue a written response within three business days of receiving the request. In failing to either comply with KRS 61.880(1) or properly invoke KRS 61.872(5) (by citing this provision and providing a detailed explanation of the cause for delay as well as the date on which the records would be available), the PVA violated the Act from a procedural standpoint. No explanation for this violation has been offered in response to Mr. Gough's appeal.
In responding to future requests, the PVA should be guided by the longstanding principle that procedural requirements of the Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5. See, for example, 07-ORD-187, pp. 3-6 (applying KRS 61.880(1) and 61.872(5)).
7 Because Mr. Gough's appeal otherwise seems to focus exclusively on the propriety of the fee imposed, or the disposition of his "complaint," it appears that he may have been provided with all of the existing responsive documents, and the Attorney General has expressly recognized that "questions relating to the verifiability, authenticity, or validity of records disclosed under the Open Records Act are generally not capable of resolution under the Act," further discussion of issues related to the disposition of his "request" is unnecessary. 05-ORD-236, p. 3.
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8 This office inadvertently failed to issue a copy of the Notification to Mr. Bolling initially, but mailed a copy to him on September 7, 2010, advising that his response was due by September 15, 2010.
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9 In relevant part,KRS 61.874(4) provides:
(c) The fee provided for in subsection (a) of this section may be based on one or both of the following:
1. Cost to the public agency of media, mechanical processing, [defined at KRS 61.870(7) and (8), respectively] and staff required to produce a copy of the public record or records;
2. Cost to the public agency of the creation, purchase, or other acquisition of the public records.
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10 In relevant part,KRS 133.047(4) provides:
[N]otwithstanding the provisions of KRS 61.874 the Revenue Cabinet shall develop and provide to each property valuation administrator a reasonable fee schedule to be used in compensating for the cost of personnel time expended in providing information and assistance to persons seeking information to be used for commercial or business purposes. Any person seeking information on his own property, or any other person, including the press, seeking information directly related to property tax assessment, appeals, equalization, requests for refunds, or similar matters shall not be subject to fees for personnel time.
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11 The record is silent as to whether the PVA based his fee partially upon this cost factor.
12 The PVA did not cite or appear to rely upon a certain regulation but independent research by the undersigned counsel revealed 103 KAR 3:030, Section 1(172), pursuant to which the PVA Open Records Commercial Fee Guidelines "shall be used by the PVA to establish fees to be charged for the cost of reproduction, creation, or other acquisition of records." This language is consistent with KRS 61.874(4)(c) but no evidence has been presented to establish that some or all of the $ 400.00 fee at issue was based upon any of those factors.
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