Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Nelson County Clerk subverted the intent of the Open Records Act, short of denial of inspection and within the meaning of KRS 61.880(4), by imposing an excessive fee to access property records online. Although the Clerk is not statutorily required to make records available in electronic form, if a public agency such as the Clerk exercises its discretion affirmatively to provide online access, the fees charged shall not exceed the "cost of physical connection to the system and reasonable cost of computer time access charges" per KRS 61.874(6)(a) unless the records are requested for a commercial purpose, 1 as defined in KRS 61.870(4), in which case KRS 61.874(6)(b), authorizing imposition of a reasonable fee based on the factors identified at KRS 61.874(4), governs. 2 In the absence of any evidence to substantiate imposition of the $ 40.00 monthly fee charged here, this office must conclude that said fee was excessive and subverted the intent of the Open Records Act within the meaning of KRS 61.880(4).
By letter directed to Nelson County Attorney Matthew Hite on March 10, 2014, 3 Mr. Shouse asked Mr. Hite to please "identify how the costs relayed allowed your office to arrive at a $ 40.00 per month charge [in the agency's March 4 response to his request made under the Open Records Act] to receive public real estate records from the database from the Nelson County Clerk's Office." Mr. Shouse further inquired as to whether "there is a difference between a one-time request for records and an ongoing account usage request" and requested that Mr. Hite "please identify which line items are required specifically and only to provide real estate records over the internet. " By letter dated March 18, 2014, Mr. Hite explained that Nelson County Clerk Elaine Filiatreau "has advised me that she relied upon KRS 61.874(4) and (6) in establishing the monthly fee for online access." Mr. Hite then advised, in relevant part, that neither the Clerk nor his office is "aware of the ability to request one time records online. There may be a trial or demo period during which access is without cost, but there would be limitations upon this access. You may contact the website provider Business Information Systems at 866-514-5192 for additional information regarding this request." 4 Mr. Hite further stated that he did not understand Mr. Shouse's question regarding "line items" but advised that the Clerk would "be happy to provide whatever information she can" if he could provide clarification. Asserting that the County Clerk has imposed a fee to access real estate records online that far exceeds her cost, as the records are maintained electronically "for their own recordkeeping" and the "only additional cost would be the link to the internet, " Mr. Shouse initiated this appeal by letter dated March 20, 2014.
Upon receiving notification of Mr. Shouse's appeal from this office, Mr. Hite responded on behalf of the Clerk, initially noting that Mr. Shouse's request 5 "is not a request for records that are in the possession or control of [Ms.] Filiatreau and are 'prepared, owned, used in the possession of or retained by . . .' the Nelson County Clerk (KRS 61.870(2)). His request seeks information that would require Filiatreau to create otherwise nonexistent reports or documents." Citing 96-ORD-139, 97-ORD-56, and 02-ORD-012, Mr. Hite maintained that a public agency is not required to create a record to satisfy a request. Mr. Hite further asserted that KRS 61.874(6) authorizes the Clerk to make records accessible in electronic form at her discretion and "to charge a fee for that access. While [Mr.] Shouse may not agree with the fee or the amount of the fee charged for online access, his protest cannot be remedied through the" Open Records Act. Based upon the following, this office respectfully disagrees on the latter point.
Although the initial determination of whether to provide online access to public records is within the discretion of the Clerk, the fees that may be charged once that discretion is exercised affirmatively are not; only the costs identified at KRS 61.874(6)(a) may be recouped in the absence of a commercial purpose; again, the record is silent on this issue with the exception of Mr. Hite's general reference to KRS 61.874(4) and (6). 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). 6 The parties to this appeal seem to agree that discretion regarding whether online access should be provided rests with the agency but disagree as to application of KRS 61.874(6) beyond that. More specifically, resolution of this appeal hinges on subsection (a).
When called upon to render a decision involving statutory interpretation, this office is required "to ascertain and give effect to the intent of the General Assembly."
Beckham v. Board of Education of Jefferson County, 873 S.W.2d 575, 577 (Ky. 1994), citing
Gateway Construction Co. v. Wallbaum, Ky., 356 S.W.2d 247 (1962). "We are not at liberty to add or subtract from the legislative enactment nor discover meaning not reasonably ascertainable from the language used." Id. To determine legislative intent, this office must refer to the literal language of the statute as enacted rather than surmising what may have been intended but was not articulated.
Stogner v. Commonwealth, 35 S.W.3d 831, 835 (Ky. App. 2000). In so doing, we "must construe all words and phrases according to the common and approved uses of language."
Withers v. University of Kentucky, 939 S.W.2d 340, 345 (Ky. 1997). Further, "it is neither the duty nor the prerogative of the judiciary [or this office] to breathe into the statute that which the Legislature has not put there."
Commonwealth of Kentucky v. Gaitherwright, 70 S.W.3d 411, 413 (Ky. 2002), citing Gateway Construction Co., above.
As evidenced by the literal and unambiguous language of KRS 61.874(6)(a) and (b), 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. While public agencies are expressly authorized to require parties requesting online access to enter into a contract, license, or other agreement with the agency in either case, and to charge fees for same, any such fees "shall not exceed" the "cost of physical connection to the system and reasonable cost of computer time access charges." In contrast, "a reasonable fee based on the factors set forth" at KRS 61.874(4)(c) may be charged for agreements if the records are requested for a commercial purpose. Although public agencies have the burden of proving that a fee is based on permissible factors under KRS 61.880(2)(c) , the record in this case is completely silent on the question of whether the $ 40 monthly fee in dispute represents the "cost of physical connection to the system and reasonable cost of computer time access charges" and/or is based on some or all of the factors identified at KRS 61.874(4).
"Both the [Clerk] and the [County Attorney] were afforded an opportunity to explain how the fees imposed on Mr. [Shouse] are tied into the cost factors set forth in KRS 61.874[(6)]. . . . Neither the [Clerk] nor the [County Attorney] offered an explanation for how the fees imposed correspond to these factors." 02-ORD-089, p. 12. Because no "meaningful attempt was made to substantiate the [online access fee] imposed," this office must conclude that said fee was excessive and subverted the intent of the Open Records Act within the meaning of KRS 61.880(4). Id.; 10-ORD-192. If the Clerk can substantiate that the $ 40 monthly 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.
Distributed to:
Mark ShouseElaine FiliatreauMatthew Hite
Footnotes
Footnotes
1 The record is devoid of any information regarding Mr. Shouse's purpose and this office consequently assumes that his purpose is not a commercial one; however, given the lack of evidence to justify imposition of the fee based on the factors identified at KRS 61.874(4)(c), the result of this decision would remain the same regardless. See 10-ORD-192.
2 KRS 64.012, which governs the fees of county clerks generally, and which "overrides the general fee provisions of the Open Records Act, at least insofar as fee guidelines relate to requests made for a commercial purpose," was not invoked nor does it seem to apply here. 02-ORD-89, p. 11; 10-ORD-192.
3 Mr. Shouse advised in his March 20, 2014, letter of appeal that his March 10 letter challenging imposition of the $ 40.00 monthly fee was directed to Mr. Hite because his office issued the March 3 response identifying that charge on behalf of the Clerk.
4 Although not directly relevant in our analysis of the determinative question presented, this office notes that such a referral suggests a misperception of the duties of the Clerk notwithstanding its contractual relationship with a private vendor. See 11-ORD-025 (reaffirming the view that "a public agency contracting with a private vendor for data management services must include provision in the contract to facilitate compliance with the requirements of the Open Records Act" and holding that if the agency "must rely upon Microsoft to retrieve the disputed email server logs, the cost of retrieval must be borne by the district and not by [the requesters]"); 10-ORD-084.
5 Because Mr. Shouse failed to include a copy of his original written request per KRS 61.880(2)(a) and the agency's written response, this office is precluded from otherwise addressing the disposition of that request. Inasmuch as Mr. Shouse's appeal focuses exclusively on the propriety of the $ 40.00 monthly fee charged for providing online access to certain records, and he provided a copy of the letter challenging that fee as well as the agency's response thereto in essentially arguing that imposition of that fee subverted the intent of the Act under KRS 61.880(4), our analysis proceeds accordingly. See 94-ORD-34 ("the rules of procedure governing an open records appeal should be relaxed to permit the greatest possible access to this forum"); compare 11-ORD-073.
6 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, 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.