May 19, 1995

In re: Shirley Phillips/City of Bardwell


This matter comes to the Attorney General on appeal from the City of Bardwell's response to Ms. Shirley Phillips's March 30, 1995 and April 6, 1995 requests to inspect and have copies of the City of Bardwell's checks and bank statements of August and September, 1994.

In her April 18, 1995 letter of appeal, Ms. Phillips states that her initial request to inspect and get copies of the City's August and September, 1994 checks and bank statements was made on March 30, 1995. She states that she made this request by filling out a form at City Hall. A copy of this request was not forwarded by Ms. Phillips with her letter of appeal.

In her April 6, 1995 request to inspect, Ms. Phillips requests to inspect "checks and bank statements of August & September, 1994." She states that she never received a response to her March 30, 1995 request.

On April 6, 1995, Ms. Brenda Douglas, Mayor, responded on behalf of the City. She began by stating the Bardwell City Council voted that copies of city documents be paid for in advance at a rate of $2.00 per copy. She then responded that the council agreed that it get an Attorney General's opinion as to whether or not employees' pay checks are subject to open records laws. Mayor Douglas stated Ms. Phillips could have a copy of the August and September bank statements as soon as the council heard from the Attorney General.

The City's response was procedurally deficient because it failed to set forth the specific exception authorizing the withholding of the records requested and a brief explanation of how the exception applies to the records withheld as required by KRS 61.880(1). For example, if the City was relying on the privacy exception, i.e., the checks contained information of a personal nature where the public disclosure would constitute a clearly unwarranted invasion of personal privacy, it should cite KRS 61.878(1)(a), and explain what the unwarranted invasion of personal privacy is. Withholding disclosure of public records until the public agency gets an opinion from the Attorney General is not a valid or recognized exception under the Open Records Law.

Ms. Phillips's appeal is procedurally deficient in that she failed to forward a copy of her initial March 30, 1995 written request to inspect the public records, which forms the basis of her appeal, as is required by KRS 61.880(2)(a). Failure to forward the written request to inspect a public record renders an appeal deficient as not properly perfected. This office cannot consider open records appeals unless the statutory procedures are followed.

Moreover, because the initial written request was not provided, we are unable to determine the precise nature and type of the checks requested. In OAG 92-13, we explained that one of the purposes of a written request is to circumvent disputes relative to the identity of the records requested. The documents provided discussed, at different times, cancelled checks and payroll checks. We have addressed the issue of cancelled checks in another appeal involving Ms. Phillips and the City. For information and future purposes, if the issue between the parties involves payroll checks, this office has previously held that disclosure of salaries of public employees does not constitute an unwarranted invasion of their personal privacy. In OAG 90-30 (copy enclosed), we stated, "Amounts paid from public coffers are perhaps uniquely of public concern. We believe the public is entitled to inspect records documenting exact amounts paid from public monies, to include amounts paid for items, or for salaries, etc." We also noted that if some of the information contained on payroll records or checks (e.g., social security numbers, home addresses, telephone numbers, tax withholdings, etc.) is deemed confidential, the public agency could supply a copy of the records upon which such information did not appear.

It is further the decision of this office that the City's charging Ms. Phillips and the public $2.00 per copy for all City documents made in response to open records requests is excessive and inconsistent with the Open Records Act.

KRS 61.872(3) provides:

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. 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.

The actual cost of copies not including staff costs is all that may be charged unless a specific charge for a given type of record is provided for by statute. OAG 94-38. A fee of $2.00 per page would be unreasonable and excessive. In OAG 80-421, we indicated a $1.00 per page charge was unreasonable. In OAG 82-396, we indicated that, under facts there involved, a charge of 50¢ per page was unreasonable.

There are additional matters which are mentioned in Ms. Phillips's letter of appeal and in the additional documentation supplied by both parties, but which are not raised as issues on this appeal. We address those matters here for the information and benefit of both parties. They involve the time when a requester may review public records; the environment surrounding the place where public records are being inspected; and the security of those documents.

KRS 61.872(3)(a) provides that a person may inspect the public records during the regular office hours of the public agency. In circumstances where there are limited employees or irregular office hours, the Open Records Act contemplates that the public agency and the requester mutually agree to a time and place convenient to both for review of the public records. In OAG 92-117, this office advised that "[p]ublic agencies must work, in a spirit of cooperation, with individuals who request to inspect their records to insure that those individuals are afforded timely access to the records they wish to inspect."

In regard to the environment of an inspection of public records, an individual should expect to review public records in an environment which is conducive to effective inspection. In 93-ORD-39, we explained that "[w]hile a requester cannot expect the agency to provide facilities offering the enforced silence of a library, he may certainly expect that those facilities will afford him adequate opportunity to inspect the records without interruption, and without harrassment."

Finally, there is discussion in the documentation provided of a certain record missing after a previous inspection of the City's records. We will reach no conclusion in this regard. Suffice it to say, the official custodian of the public records is responsible for the safekeeping of the city records. If there is a concern over the safekeeping of those records, it is certainly provident to have someone monitor the public inspection of the records. However, this monitoring should only go so far as to protect the security of the records and not serve as a means of harrassment. The policy of the Open Records Act declares that a "free and open examination of public records is in the public interest."

Ms. Phillips or the City of Bardwell may challenge this decision 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 should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.







Distributed to:

Ms. Brenda Douglas, Mayor

City of Bardwell

Box 280

Bardwell, KY 42023

Ms. Shirley Phillips

Box 323

Bardwell, KY 42023