23-ORD-213
August 14, 2023
In re: Courtney Gilbert/Green County Clerk
Summary: The Green County Clerk (the “Clerk”) violated the Open
Records Act (“the Act”) when she failed to respond to a request to inspect
records within five business days. The Clerk also violated the Act by
charging a copying fee to facilitate redaction of an electronic record.
Open Records Decision
On May 23, 2023, Courtney Gilbert (“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 2, 2023, the Appellant initiated this appeal.
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.” On appeal,
the Clerk admitted she failed to respond within five business days because she had
been out of the office and did not see the request until her return. Accordingly, the
Clerk violated the Act.
After the appeal was initiated, the Clerk offered to provide a copy of the
surveillance video on a USB flash drive for $10.00, plus postage. The Appellant
agreed to this cost, and therefore, any issue regarding the surveillance video is now
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.”moot. See 40 KAR 1:030 § 6. The Clerk also offered to provide paper copies of the
electronic voter roster at $0.10 per page. Unlike the fee for the surveillance video, the
Appellant does object to the $0.10 per page copying fee because she asked for the
record in electronic format.
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.
To substantiate the cost, the Clerk states she was unable to redact the
electronic version of the record and had to print it to redact the dates of birth and
addresses. 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. 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); see also 23-ORD-
173 (holding another county clerk charged an excessive fee by passing on the cost of
redacting the electronic voter roster to another requester). Accordingly, the Clerk
violated the Act by charging a copying cost that was incurred solely because of the
need to redact the record.
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 notifiedof 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.
Daniel Cameron
Attorney General
s/ Marc Manley
Marc Manley
Assistant Attorney General
#232
Distributed to:
Courtney Gilbert
Jessica R. Baker
Russ Goff