23-ORD-173
July 18, 2023
In re: Bobbie Coleman/Breathitt County Clerk
Summary: The Breathitt County Clerk (the “Clerk”) violated the Open
Records Act (“the Act”) when she failed to timely respond to requests to
inspect records and when she charged a fee for electronic records
without substantiating the actual cost of reproducing those records.
Open Records Decision
On May 22, 2023, Bobbie Coleman (“Appellant”) emailed two requests to the
Clerk to inspect various records relating to the May 2023 primary elections.1 Having
received no response by June 1, 2023, the Appellant initiated her first appeal.
Shortly after the Appellant initiated her first appeal on June 1, the Clerk
responded to the requests and stated only that the County Judge/Executive had
access to the requested surveillance video, but he was “out of town this week.” The
Clerk advised she would attempt to retrieve the video when he returned. As for the
Appellant’s request for the electronic signature rosters, the Clerk advised that her
vendor was “working on” creating the electronic signature rolls and she would provide
those records to the Appellant upon receiving them from the vendor.
While the Appellant’s first appeal was pending, she submitted another request
to the Clerk on May 30, 2023. This time the Appellant asked for a copy of the Clerk’s
most recent contract with the vendor providing video surveillance services of the
1
Specifically, the Appellant sought video surveillance tapes of the election machines from 6:00 p.m.
on May 16, 2023, to 6:00 p.m. on May 17, 2023. The Appellant also sought, “in spreadsheet format (.csv
or .xlsx) [the Clerk’s] complete voter sign-in rosters for every precinct, absentee, early, and election
day voters from the May 2023.”election equipment. On June 9, 2023, the Clerk notified the Appellant the
“documents” were ready, and she would mail them to the Appellant after prepayment
of a $69.40 fee. The Appellant asked the Clerk to substantiate the basis of the fee
because she had asked for electronic copies of records, not hard copies. The Clerk
responded that the documents included the complete electronic signature rolls and a
copy of the requested contract. The Clerk reiterated that prepayment of the fee would
be required before releasing them to the Appellant. The Appellant then initiated her
second appeal to challenge the Clerk’s imposition of the fee.
Under KRS 61.880(1), upon receiving a request for records under the Act, a
public agency “shall determine within five (5) [business] days . . . after the receipt of
any such request whether to comply with the request and shall notify in writing the
person making the request, within the five (5) day period, of its decision.” Or, if
responsive records are “in active use, in storage or not otherwise available,” a public
agency may delay access to them by stating the earliest date on which they will be
available and a detailed explanation of the cause of the delay. KRS 61.872(5). Here,
the Clerk violated the Act twice because neither of her responses to the Appellant’s
requests were timely. The Clerk did not respond to the Appellant’s May 22 requests
until June 1, or seven business days later. She also did not respond to the Appellant’s
May 30 request until June 9, or eight business days later.
With respect to the fee, the Clerk has not substantiated whether the requested
records existed in hard copy or electronic format. Under KRS 61.880(4), “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 . . .
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.” The
Office notes that, with respect to the electronic signature rolls, these records have
been provided to the county clerks in electronic PDF format by the various vendors.
See, e.g., 23-ORD-158 n.2.
Under KRS 61.874(3), “The public agency may prescribe a reasonable fee for
making copies of nonexempt public records requested for use for noncommercial
purposes which shall not exceed the actual cost of reproduction, including the costs
of the media and any mechanical processing cost incurred by the public agency, but
not including the cost of staff required.” However, if “a public agency is asked to
produce a record in a nonstandardized format, or to tailor the format to meet the
request of an individual or a group, the public agency may at its discretion provide
the requested format and recover staff costs as well as any actual costs incurred.” Id.Thus, whether an agency may charge an increased fee for electronic records turns on
whether the records exist in standardized or nonstandardized format.
Under KRS 61.874(2)(b), the standardized format for electronic records is a
record that is “in a flat file electronic American Standard Code for Information
Interchange (ASCII) format.” This Office has previously found that PDF format is a
“standard format” under KRS 61.874(2)(b). See, e.g., 11-ORD-085. As such, the Clerk
may only recover the “actual cost” of reproducing the PDF file for the Appellant’s
inspection. The Clerk has not explained whether she incurred any “actual costs” in
reproducing the electronic signature rolls the vendor provided her pursuant to
contract.2 To the extent the Clerk printed the electronic signature rolls for purposes
of redaction, the Court of Appeals has held that an agency may not pass on the costs
of redaction when reproducing records for a noncommercial purpose. See
Commonwealth, Dep’t of Ky. State Police v. Courier Journal, 601 S.W.3d 501, 508 (Ky.
App. 2020) (the agency’s inability to redact records in its database other than by
manual redaction did not permit it to pass on the reproduction costs to the requester).
The Clerk carries the burden of substantiating her actual cost of reproducing
the electronic signature rolls and the requested contract. See KRS 61.880(2)(c). It is
not clear from this record whether the contract exists in electronic format or hard
copy format only. But the electronic signature rolls do exist in electronic format as a
PDF. While the Clerk should make redactions to that PDF file under
KRS 61.878(1)(a) to remove dates of birth, she cannot pass on to the Appellant the
cost of printing the records and manually redacting them. Ky. State Police, 601
S.W.3d at 508. Accordingly, the Clerk violated the Act by imposing an excessive fee.
See KRS 61.880(4)
A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court under KRS 61.880(5) and KRS 61.882 within 30 days from
the date of this decision. Under 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 proceedings. The Attorney General will accept notice of the complaint
emailed to OAGAppeals@ky.gov.
2
This is in contrast to additional costs some county clerks have incurred from their vendors in
accessing the requested video surveillance records. In those cases, the county clerks faced additional
third-party costs, beyond those part of the original contract, in reproducing the records. This situation
is similar to agencies that incur third-party bank charges for reproducing copies of canceled checks
that had been requested. See, e.g., 23-ORD-152 n.3; 16-ORD-239; 14-ORD-177; 10-ORD-140.Daniel Cameron
Attorney General
s/ Marc Manley
Marc Manley
Assistant Attorney General
#221
#272
Distributed to:
Bobbie Coleman
Becky Curtis
Brendon Miller