NOT TO BE PUBLISHED
June 30, 1993
IN RE: Patricia J. Little/Pike County Housing Authority
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the actions of the Pike County Housing Authority in responding to Ms. Jacqueline Ray's May 13, 1993, request for a copy of the Authority's file relating to her. This appeal was submitted on Ms. Ray's behalf by Ms. Patricia J. Little, who is the owner and manager of the Valhalla Mobile Home Park where Ms. Ray is a tenant.
A review of the documents attached to Ms. Little's appeal demonstrates that Ms. Ray has made other attempts to obtain these documents, including a request under the federal Freedom of Information Act dated January 21, 1993. It appears that on February 1, 1993, Ms. Mary Ann Sisco, Section 8 Coordinator for the Housing Authority, responded to this request advising Ms. Ray that she could obtain a copy of her file at $1.50 per page. Apparently, Ms. Ray did not act upon Ms. Sisco's letter, but resubmitted her request for a copy of her file on May 13, 1993. This request was made under the Kentucky Open Records Law. Ms. Ray did not receive a response to this request.
We are asked to determine if the Pike County Housing Authority violated the Open Records Law by failing to respond to Ms. Ray's open records request. For the reasons set forth below, we conclude that the Housing Authority's actions contravened KRS 61.880(1) and KRS 61.874.
KRS 61.880(1) sets forth procedural guidelines for agency response to an open records request. That statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, 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 three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final action.
Pursuant to this provision, the Housing Authority should have either afforded Ms. Ray access to the requested records, or notified her in writing of its decision to deny her request and included a statement of the specific exception authorizing nondisclosure. Since the issue of access to records was obviously not resolved following Ms. Ray's January 21 Freedom of Information request and Ms. Sisco's February 1 response, we believe that the Housing Authority was obligated to comply with the procedural requirements of KRS 61.880(1). As we noted in OAG 90-79, at page 3, "No matter how the public agency views the merits of the request it must respond in writing and in a timely and proper manner." The Pike County Housing Authority is directed to immediately respond to Ms. Ray's open records request.
We remind the Housing Authority that in so doing it is also required to comply with KRS 61.874(2) which provides that "[t]he public agency may prescribe a reasonable fee for making copies of public records which shall not exceed the actual cost not including the cost of staff required." This provision has been interpreted to mean that the fee charged for copies must be based on the actual expense to the agency, excluding the cost of staff. The fee is thus limited to the cost of maintaining copying equipment by purchase or rental and the supplies involved. OAG 80-421; OAG 91-98. In Friend v. Rees,
Ky.App., 696 S.W.2d 325, 326 (1985), the Kentucky Court of Appeals held that ten cents per page was a reasonable reproduction fee under the Open Records Act.
Unless the public agency can demonstrate that the cost of copying is covered by another specific statutory enactment, the provisions of KRS 61.874(2) govern. Any fee charged in excess of the actual cost violates the Open Records Act. The $1.50 per page copying charges accessed by the Pike County Housing Authority is clearly excessive and in violation of KRS 61.874(2). OAG 80-421; OAG 84-268; OAG 89-9.
The Pike County Housing Authority may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
Ms. Gaye Newsome
Pike County Housing Authority
Perry Cline Building
P. O. Box 1468
Pikeville, KY 41502
Ms. Patricia Little
Valhalla Mobile Home Park
Located at Millard