Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that although the Bell County Sheriff did not violate the Open Records Act in denying Bell County Volunteer Fire Department Chief David A. Miracle's open records request, to the extent that request implicated accident reports, on the basis of KRS 189.635(5), Bell County Dispatch and Bell County Emergency Medical Services subverted the intent of the Act, within the meaning of KRS 61.880(4) , 1 by imposing excessive fees for copies of CAD reports and "landing zone" records, respectively.
On October 10, 2013, Chief Miracle requested access to "[a]ll BCVFD CADs reports for the calendar year 2011 and for 2012 to present date, . . . information from police reports from the sheriff's office of all (10-46) accident[s], with injury, that the BCVFD responded to in this same time period, . . . [and] information from EMS reports for all landing zones (LZs) set up by the BCVFD at the request of EMS . . . includ[ing] the parties involved, their contact information as well as their insurance providers and the contact information for them." Each public agency responded by indicating that the requested records would be available within thirty days. Shortly thereafter, Sheriff Bruce Bennett notified Chief Miracle that 104 responsive traffic accident reports had been located and could be retrieved from the Sheriff's office at a standard copying charge of $ 5.00 per report for a total of $ 520.00. Bell County 911 Dispatch Supervisor Linda S. Wyatt notified Chief Miracle that 213 responsive Computer Aided Dispatch (CAD) reports had been located and could be retrieved at a cost of $ 5.00 per copy for a total of $ 1,065.00. Bell County EMS Director Josh Peters notified Chief Miracle that he had "a report completed with a total of 80 records from a destination 'Landing Zone' " which could be retrieved at a cost of $ 5.00 per record for a total of $ 400.00. Upon receipt of these responses, the Bell County Volunteer Fire Department initiated this appeal, through counsel, challenging the imposition of excessive copying fees.
In supplemental correspondence directed to this office, the Bell County Attorney defended the $ 5.00 per report copying fee. He explained:
The Bell County Dispatch has approximately two hundred thirteen (213) reports that appear to meet the BCVFD's criteria. In order to collect that information, Linda Wyatt, Bell County 911 Dispatch supervisor, would have to pull up all two hundred thirteen (213) reports on the computer located in the dispatch office and print them out one at a time. All the reports consist of multiple sheets. The printer that dispatch uses is a color-copy laser printer that is not designed for speed. It is also expensive. A printer cartridge costs one hundred sixty dollars ($ 160). Dispatch estimates that the reports will generate will over six hundred (600) pages.
As regards the request to the Bell County Ambulance Service, it was necessary to sort through all the reports and find EMS reports for all landing zones set up by the BCVFD. The EMS records are not categorized to generate that information. So, the Bell County EMS director, Josh Peters, had to manually pull all the run numbers. Then he turned the manually generated information over to the county's billing agent to obtain the requested information. Pursuant to the Health Insurance Portability and Accountability Act, all the health information had to be redacted before the reports could be generated. After two weeks, Bell County EMS received the eighty (80) reports requested.
In closing, the County Attorney advised that because the Sheriff was statutorily foreclosed by KRS 189.635 from disclosing accident reports he would not release the reports and the issue of copying costs was therefore moot. We affirm the Sheriff's reliance on KRS 189.635(5) to support nondisclosure of the accident reports to the BCVFD but find no support in the law for the imposition of a $ 5.00 per report copying fee for CAD reports and landing zone records. Having failed to establish that the actual cost associated with copying each report, meaning "the cost of the media and any mechanical processing cost incurred by the public agency, but not including the cost of staff required," 2 was equivalent to $ 5.00 per record/report, Bell County 911 Dispatch and Bell County EMS subverted the intent of the Open Records Act, short of denial of inspection, by imposing excessive fees for copies. KRS 61.880(4).
The Bell County Sheriff is statutorily foreclosed from releasing copies of accident reports to the BCVFD. KRS 189.635 governs access to accident reports. At sections (5) and (8), that statute provides:
(5) All accident reports filed with the Department of Kentucky State Police in compliance with subsection (4) above shall not be considered open records under KRS 61.872 to 61.884 and shall remain confidential except that the department may disclose the identity of a person involved in an accident when his or her identity is not otherwise known or when he or she denies his or her presence at an accident. Except as provided in subsection (9) of this section, all other accident reports required by this section, and the information contained in the reports, shall be confidential and exempt from public disclosure except when produced pursuant to a properly executed subpoena or court order, or except pursuant to subsection (8) of this section. These reports shall be made available only to the parties to the accident, the parents or guardians of a minor who is party to the accident, and insurers or their written designee for insurance business purposes of any party who is the subject of the report, or to the attorneys of the parties.
(8) The report shall be made available to a news-gathering organization, solely for the purpose of publishing or broadcasting the news. The news-gathering organization shall not use or distribute the report, or knowingly allow its use or distribution, for a commercial purpose other than the news-gathering organization's publication or broadcasting of the information in the report. A newspaper, periodical, or radio or television station shall not be held to have used or knowingly allowed the use of the report for a commercial purpose merely because of its publication or broadcast.
In construing these provisions, the Attorney General has observed:
KRS 189.635(5), in tandem with KRS 61.878(1)(l), requires that a public agency deny a request for copies of accident reports not submitted by parties to the accident, the parents or guardians of a minor who is party to the accident, the insurers of any party who is the subject of the report, the attorneys for the parties, and news gathering organizations "solely for the purpose of publishing or broadcasting the news." KRS 189.635(8). This specific confidentiality provision overrides the general rule of openness mandated by the Open Records Act.
06-ORD-024, p. 5 citing 02-ORD-155, p. 4. It recognizes only the specifically enumerated exceptions found in the concluding sentence of KRS 189.635(5) and in KRS 189.635(8). Whatever the BCVFD's intended use of the accident reports, KRS 189.635 erects a barrier to disclosure. To the extent the Bell County Sheriff initially agreed to release the reports, his position was inconsistent with the statute. His ultimate disposition of the BCVFD's request was consistent with the statute, and we find no error in the denial of this portion of Chief Miracle's request.
KRS 189.635(7) authorizes the Kentucky State Police to "promulgate regulations . . . to set out a fee schedule for accident reports made available" pursuant to the referenced provisions. KSP has done so at 502 KAR 15.010, establishing a five dollar fee for paper copies and a ten dollar fee for copies obtained from its website. However, neither the statute nor the regulation extend authority to that agency, or any agency, to charge a five dollar fee for CAD reports or landing zone reports obtained under the Open Records Act. On this issue, 01-ORD-136 is dispositive. That decision, a copy of which was appended to the BCVFD's letter of appeal, reaffirms the reasonableness of a ten cents per page copying fee where no express statutory authority for imposition of a higher copying fee exists 3 or where the agency cannot substantiate that the higher copying fee it seeks to impose represents its actual costs, meaning the cost of media 4 and mechanical processing 5 but not including the cost of staff required. KRS 61.874(3). The arguments advanced on behalf of Bell County 911 Dispatch and EMS to substantiate copying fees in excess of ten cents per page are unpersuasive. These agencies subverted the intent of the Open Records Act, short of denial of inspection, by attempting to impose a five dollar per record/report copying fee, and it is incumbent on each of them to recalculate that fee to reflect the actual costs of copying incurred, not including staff costs.
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.
Distributed to:
James E. ParsonsDavid A. MiracleNeil WardBruce BennettLinda S. WyattJosh PetersAlbey Brock
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 KRS 61.874(3).
3 For example, KRS 189.635(7) and 502 KAR 15:010.
4 KRS 61.870(7) defines the term "media" 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[.]"
5 KRS 61.870(8) defines the term "mechanical processing" 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."