Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in these consolidated appeals is whether the City of West Buechel violated the Open Records Act in its disposition of Tom Fox's September 7, 2016, request to inspect certain bank records of the city. For the reasons that follow, we find that the city both failed to make a timely disposition of the request and subverted the intent of the Act short of a denial of inspection within the meaning of KRS 61.880(4).
Mr. Fox's September 7 letter stated that he was going to "be spending some of my time in West Buechel City Hall" and requested while there to "examine all of the City's bank records from January 1, 2015." He added:
That is my request, in general. Show me everything. But, to be specific, I now request to examine and scan, at my option, each monthly account statement, every check and each deposit slip for the following City bank accounts:
Here Mr. Fox identified eleven of the city's accounts by bank, account number, and description of their use, except for one account for which he had no number and one for which he had no description. He continued:
Clearly, my examination of these bank records cannot be accomplished in just a few hours, or even in only one day. Find me an out of the way corner in City Hall to do my work and this process will not interfere with normal City business. These are not the type of files that are frequently in "active use, " except possibly when the City's independent auditors may, someday, be at work.
On September 9, 2016, Kim Richards, City Clerk/Treasurer, responded in writing: "Due to the scope of the request, please allow up to and including October 3, 2016 to respond." This resulted in Mr. Fox's first appeal on September 18, 2016.
KRS 61.880(1) requires a public agency to make a disposition of a request for public records within three days, excluding weekends and legal holidays. The City of West Buechel failed to do so. KRS 61.872(5) provides for limited exceptions to the three-day rule when "the public record is in active use, in storage or not otherwise available," but only where "a detailed explanation of the cause is given for further delay." Here, the city merely made a vague allusion to "the scope of the request" in support of its three-week delay. Since this is insufficient under the statute, we find that the city committed a procedural violation of KRS 61.880(1).
Mr. Fox's second appeal, dated October 10, 2016, arises from the ultimate disposition of his request, issued by Ms. Richards on October 3, 2016. The response was provided on a form that stated: "We have located the records you requested and you will need to pay a fee for the photocopying of the records. The cost is $ 34.60 for 346 pages at $ .10 per page. The records will be provided upon receipt of your payment."
In his appeal, Mr. Fox advises:
City Clerk-Treasurer Kim Richards has taken the position that City bank records are not available for inspection since the City has opted for paperless online banking, and there are no "original" paper bank statements, cancelled checks or deposit slips in her possession. In lieu of inspection, Ms. Richards offers, ostensibly, to provide copies of all such bank records at the requester's expense, without exception.
Mr. Fox takes the position that he should not be required to pay for copies when his request is merely to inspect the account records at City Hall. The city argues in reply:
[A]n agency is permitted to provide copies of cancelled checks in lieu of originals and subject to the requesting party's payment of copying fees permitted by KRS 61.874(3), and any additional fees that may be charged by a bank to acquire the copies. The check images he requested will need to be obtained from the bank and can be furnished after receipt of bank fees are paid [ sic ].
It appears, therefore, that the 346 pages of records that the city has copied or printed do not include the copies of checks 1 requested by Mr. Fox. We cannot determine from the record whether the city has already requested the check images from the bank, nor what fee the bank charges for that service.
KRS 61.872 makes no distinction between paper and electronic records. KRS 61.872(1) provides: "All public records shall be open for inspection by any person, except as otherwise provided by KRS 61.870 to 61.884, and suitable facilities shall be made available ? for the exercise of this right." KRS 61.872(2) states: "Any person shall have the right to inspect public records. " KRS 61.872(3)(a) provides that "[a] person may inspect the public records ? [d]uring the regular office hours of the public agency. " The City of West Buechel does not dispute that its bank records are "public records" within the meaning of the Open Records Act.
When a person requests to inspect public records maintained in electronic form, "[t]he question of whether on-site inspection of agency records by means of public access to agency computers is required must be decided on a case by case basis, taking into consideration the specific facts and circumstances of each case." 00-ORD-8. When "an alternative mechanism for inspection of the records exists, ? namely, printing out [records] in hard copy form," we have not found that this posed any unreasonable restriction upon inspection. Id. Nevertheless, to "impose fees for onsite inspection" is "legally unsupportable" and subverts the intent of the Open Records Act. 07-ORD-013. Mr. Fox is entitled to inspect the city's bank records on site without being charged a fee, whether the city allows him to use its computers or provides the records in hard copy. With regard to the online banking records, therefore, we find that the city's attempt to charge a fee for copies as a substitute for permitting on-site inspection subverted the intent of the Act.
The cancelled check images, however, present a separate issue. From the city's representations, it is our understanding that these images are not available to view online, but must be obtained from the bank by special request, and that the bank charges a fee to provide them. A public agency must provide copies of cancelled checks when requested, "but '[p]ursuant to KRS 61.874(3), [the agency] may also require payment of the additional cost, if any, incurred in acquiring the copies from the bank.'" 14-ORD-177 (quoting 10-ORD-140). The same principle applies when the request is for inspection, as the public agency must incur these costs to acquire the records from the bank regardless of whether it is for inspection or copies. It appears from the record, however, that the city has not yet informed Mr. Fox of the applicable fees. We therefore find a further violation of KRS 61.880(1) in the failure to make a timely disposition of Mr. Fox's request.
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 must be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.
Footnotes
Footnotes
1 It is not apparent whether any deposit slips exist. If they exist in the exclusive possession of the bank and are subject to fees, the analysis applied to cancelled checks would apply to them also.