Opinion
Opinion By: Andy Beshear, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Office of the Fayette County Property Valuation Administrator ("PVA") violated the Open Records Act or subverted the intent of the Act, short of denial of inspection, within the meaning of KRS 61.880(4), in regard to Scott Horn's undated request for "full access to the Fayette PVA website for non-commercial purposes." For the reasons stated herein, we find that the PVA violated the Act by refusing to provide a written response, and the PVA subverted the intent of the Act by charging an excessive fee for access to the full functionality of the website with respect to searching public records.
In his letter to PVA David O'Neill, Mr. Horn first invoked the Open Records Act and then stated: "I have registered an account on your website using my email address ? and request that you activate it for full use of the website's functionality. " He added, "Please note that the Kentucky Attorney General has found that non-commercial access of public records cannot have fees applied that exceed the costs of making the information available."
The record does not reflect when the PVA office received Mr. Horn's request, but Mr. Horn recounts that he spoke by telephone to Mr. O'Neill, who told him "that full access to the public database was only available for people who paid the $ 75 annual fee" and further stated that "he would not provide [Mr. Horn] an official written response" to his request. This office received Mr. Horn's appeal on November 15, 2018.
KRS 61.880(1) requires a public agency, after receiving a written request for access to public records, to "notify in writing the person making the request ? of its decision" within three days, excluding weekends and legal holidays. The PVA's refusal to do so within the time provided by KRS 61.880(1) violated the Open Records Act.
In his response to this appeal on November 16, 2018, the PVA explained that his office "is proud to provide a vast collection of property data on its public facing website, " but the annual fee of $ 75.00 is solely for the ability "to search and retrieve properties by owner name." We note the fact that the PVA's website allows the public to search property records by "location address," "parcel number," "legal information," "map," "sales," or "neighborhood" -- all without paying the subscription fee. Only the "owner name" search function is designated "With Subscription Only." 1 By way of justifying the fee, the PVA stated:
Providing this information to the public [online] is a great service, which is not mandated by statute or regulation, but does come at considerable cost to the agency. We believe $ 75 for an entire year is quite reasonable . Any tax payer may come into our office and access the information on our public terminals for free. Or, if a paper copy is required, we will provide it at $ .25 per property record.
(Emphasis added.)
While online access to public records is not mandated by the Open Records Act, a public agency making the decision to do so is not free to charge whatever fee it deems "reasonable" without reference to the factors permitted by statute. KRS 61.874(6) provides:
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 those agreements. Fees shall not exceed :
(a) The cost of physical connection to the system and reasonable cost of computer time access charges ; and
(b) If the records are requested for a commercial purpose, a reasonable fee based on the factors set forth in subsection (4) of this section.
(Emphasis added.) In 07-ORD-143, we affirmed that while "the initial determination of whether to provide online access is within the discretion of the PVA, the fees that may be charged [for such access] are not; only the costs identified at KRS 61.874(6)(a) may be recouped absent a commercial purpose. "
Here, the PVA's office is not directly restricting the public's ability to view individual public records online, but is restricting the full functionality of its website's search capabilities to those who pay the $ 75.00 subscription fee. This fee inherently imposes some hindrance to public access. We find no meaningful distinction, other than a difference of degree, between a monetary barrier to the records themselves and a monetary barrier to a search function that enables the public to locate those records. By way of analogy, a public agency could not maintain two physical sets of its records -- one organized and indexed, the other in random order -- and impose an arbitrary fee to inspect the organized set. The only authorized fee for online access for a noncommercial purpose, under KRS 61.874(6)(a), is "[t]he cost of physical connection to the system and reasonable cost of computer time access charges."
The PVA has made no attempt to substantiate the $ 75.00 annual fee per user under the factors in KRS 61.874(6)(a) , but has merely alleged "considerable cost" and asserted that the fee "is quite reasonable." The record contains no estimate of the agency's marginal or average cost in granting user access, which would constitute essential information to justify a fee under KRS 61.874. Cf. 04-ORD-054, n.4.
Furthermore, in a follow-up letter to Mr. Horn dated November 19, 2018, the PVA asserted that "the $ 75 fee does not cover the cost of the system and is reasonable and necessary to defray some of the cost of maintaining the database. " (Emphasis added.) Fees under KRS 61.874 may not be based on factors extraneous to those enumerated in the statute. 18-ORD-140. For a noncommercial request for access to online records, "[t]he cost of physical connection to the system and reasonable cost of computer time access charges" are the only permissible bases for calculating a fee, and the PVA has offered no evidence of those costs. Because "no meaningful attempt was made to substantiate the [$ 75.00] fee[] imposed" 2 under those criteria, we must conclude that it was "an excessive fee, imposition of which subverted the intent of the Open Records Act within the meaning of KRS 61.880(4)." 3 10-ORD-192.
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 http://qpublic9.qpublic.net/ky_fayette_search2.php (last visited Nov. 20, 2018).
2 02-ORD-89.
3 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,' ? 'this holding will, of course, not stand.'" 10-ORD-192 (quoting KRS 61.874(6)(a) and 02-ORD-89).