May 25, 1995

In re: Nancy Jones/City of Bardwell


This matter comes to the Attorney General on appeal from the City of Bardwell's response to Ms. Nancy Jones's open records request to inspect or get copies of the City's cancelled checks for October, 1994; a copy of cancelled check number 69; being charged $2.00 for a copy of one check, and to inspect and have copies of the original checks and bank state- ments of the General Fund beginning January 1, 1994, until the present date.

Subsequent to receipt of Ms. Jones's letter of appeal, both Ms. Jones and the City have supplied additional documentation and information relative to the appeal. The trail of facts presented to us is less than clear. However, we will attempt to set forth facts which pertain to issues raised on appeal.

On March 23, 1995, via a telephone request from Ms. Jones to Brenda Douglas, Mayor, City of Bardwell, a "Public Records Inspection Application" form was filled out for Ms. Jones. The request was to inspect City checks for October, 1994. The form indicates the requested records were delivered to Ms. Jones for viewing by Ms. Nancy Henley, City Clerk. Mr. Bobby Joe Arnold, Jr., Chief of Police, signed the form as a witness to Ms. Jones's inspection of the records.

In her letter of appeal and in supporting documentation, Ms. Jones indicates that at 9:00 a.m., on March 24, 1994, she went to City Hall to view the City's cancelled checks for October, 1994. She states she asked for copies of the checks and was refused by the Mayor. Ms. Jones also states the Mayor would not give her the refusal in writing. (Note: We are unable to determine from the documents provided whether Ms. Jones inspected the records on both March 23 and March 24, 1995, or whether there is a mistaken date involved.)

On March 28, 1995, Mayor Douglas, on behalf of the City, wrote a memorandum to Ms. Jones stating that due to the cost of producing copies and the volume of requests the City had received, Ms. Jones's request for copies of the October checks and bank statements would be placed on the agenda for the City council meeting on April 3, 1995, to inform council members of the requests and the cost involved.

In addition to the above, on an undated "Public Records Inspection Application" form, Ms. Jones requested to inspect a "Copy of a Copy of Check No. 69." On the form, in a handwritten notation, dated 3-29-95, Ms. Jones indicates she had paid $2.00 for the copy of the check but had not yet received it. Ms. Jones attached a 3-29-95 receipt from the City for $2.00 for a copy.

In another handwritten note, dated March 30, 1995, Ms. Jones states that a charge of $2.00 per record is unreasonable and was done to discourage her from asking for copies of all checks.

Documentation supplied to this office by the City states that when Ms. Jones left City Hall after viewing the copies of the October, 1994 checks, item number 69 was not in with the rest of the copies. All items were numbered in red before being handed to Ms. Jones.

Finally, Ms. Jones, in her letter of appeal, states that she called Mayor Douglas on March 28, 1995, and was told to ask the Audit Committee for an audit report because she was not going to let her see or get copies. Ms. Jones states the Mayor would not give her the refusal in writing.

In a subsequent letter to this office, dated April 10, 1995, Ms. Jones states, "I am sending copies of my requests to council members who make up the Audit Committee which was appointed by Mayor Douglas. Mayor Douglas told me I would have to go through the Audit Committee to see the information I requested. She told me that they had everything I wanted to see."

Along with her letter of April 10, 1995, Ms. Jones enclosed the April 6, 1995 response from Mr. Philip D. King, Bardwell City Council member. Mr. King informed Ms. Jones that the request must be made to the Mayor's office and enclosed a copy of the City's request form. He explained, "The Mayor alone has the day to day management of City business. I cannot grant any request as a council member, but you can rest assured that I will pass your letter on to the Mayor's Office."

Mr. King further informed Ms. Jones that the City Council had voted to charge $2.00 per copy for each item copied and she would need to check with Mayor Douglas or Nancy Henley to find out how many checks and bank statements there are from January 1, 1994, to the present.

Ms. Jones further states in her April 10, 1995 letter that on April 7, 1995, Chief Arnold and a State Police Detective came to her house. Chief Arnold told her that in order to see open records, she must request through him. An appointment was made for Ms. Jones to review records on Wednesday, April 12, 1995, at 9:00 a.m.

By letter to this office dated April 19, 1995, Ms. Jones indicates she reviewed copies of copies of checks from January 4, 1994, to the present. After reviewing the records in the presence of the City Police Officer and the City Clerk, Ms. Jones was asked to sign a statement that she had seen everything. Ms. Jones states she signed the statement but there were checks missing which she had not seen. These apparently were certain payroll checks which she had not requested because she was told she could not see them.

The City's response to Ms. Jones's March 23, 1995 request to inspect the City checks for October, 1994, was consistent with the Open Records Act. The documents indicate Ms. Jones's request was granted and she reviewed those documents on the same date.

Ms. Jones, in her letter of appeal, states she went to view the City's checks for October, 1994, on March 24, 1995. She states the Mayor refused to provide her with copies of the records and would not give her the refusal in writing. To the extent that this factual scenario is accurate, the City acted inconsistently with the Open Records Act.

KRS 61.874(1) and (3) provide:

(1) Upon inspection, the applicant shall have the right to make abstracts of the public records and memoranda thereof, and to obtain copies of all public records not exempted by the terms of KRS 61.878. When copies are requested, the custodian may require a written request and advance payment of the prescribed fee, including postage where appropriate. If the applicant desires copies of public records other than written records, the custodian of the records shall duplicate the records or permit the applicant to duplicate the records; however, the custodian shall ensure that such duplication will not damage or alter the records.

(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. 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.

This office has previously held that a public agency cannot permit a requester to inspect records, but deny him copies of those records. OAG 89-27. Moreover, it is clear from the language of this statute that a person having inspected records is entitled to copies of them upon payment of a reasonable fee. That fee must not exceed the actual cost of copying and may not include the cost of staff required. The right to copies of public records is correlative to the right to inspect those records. A public agency cannot on the one hand release public records for inspection by a requester and, on the other hand, deny the requester the right to copy those records. 94-ORD-47. The public records are either available for inspection and copying or exempt from such under one or more of the exceptions codified at KRS 61.878(1)(a) through (l). If they are exempt from inspection under one or more of the exceptions, the public agency should notify in writing the person making the request stating the specific exception authorizing the withholding of the records and a brief explanation of how the exception applies to the records withheld. KRS 61.880(1).

As to the City charging $2.00 per copy for its public records, this amount is excessive. In Friend v. Rees, Ky.App., 696 S.W.2d 325 (1985), the court found ten cents a copy to be a reasonable fee for reproducing standard hard copy records. 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.

Accordingly, the City is directed to provide Ms. Jones with copies of the records she requested at a reasonable fee consistent with the provisions of KRS 61.874.

In addition, the City acted inconsistently with the Open Records Act in delaying to provide copies of the records until the request for copies could be placed on the April 3, 1995 City Council meeting to inform council members of the requests and the costs involved.

KRS 61.880 sets forth the duties and responsibilities of a public agency when a request is received under the Open Records Act. It requires that a public agency, upon receipt of a request, respond within three working days of the receipt of the request and indicate whether the request will be granted.

Nothing in the statute permits an agency to postpone or delay this statutory deadline while the agency "[begins] the process of identifying and compiling the [requested] records." The burden on the public agency to respond in three working days is, not infrequently, an onerous one. Nevertheless, the only exceptions are found at KRS 61.872(4) and (5). Unless the person to whom the request is directed does not have custody and control of the records, or the records are in active use, in storage, or are not available, the agency is required to notify the requester of its decision within three working days, and to provide the requester with timely access to the requested records.

If the records are not readily available or the task of reproducing voluminous records, covering a long period of time, makes it virtually impossible to meet the time limitations, that circumstance might necessitate a reasonable extension of the three-day period of limitation. 94-ORD-99. However, the burden would be on the public agency to provide a detailed explanation of the cause of the delay and arranging for inspection at the earliest possible date. 94-ORD-75.

As to the issue of the copy of the City's cancelled check, item number 69, it appears that Ms. Jones was provided a copy of that record. However, for the reasons stated above, charging $2.00 for a copy of that check is excessive and in violation of the Open Records Act.

An additional issue raised by Ms. Jones in her letter of appeal is her March 28, 1995 phone call to Mayor Douglas in which Ms. Jones apparently asked for "access to the checks or copies of Bardwell cancelled checks, copies on March 24, 1995." Mayor Douglas advised her to ask the Audit Committee for an audit report because she was not going to let Ms. Jones see or get copies.

It is difficult to assess the Mayor's response, in this regard, because Ms. Jones did not make her March 28, 1995 open records request in writing and, thus, could not forward to this office for review the precise nature or type of record requested. To this extent, Ms. Jones's appeal is procedurally deficient.

However, Mayor Douglas, as official custodian of the City's records, is responsible for the maintenance, care, and keeping of public records, regardless of whether such records are in her actual personal custody and control. KRS 61.870(3). As such, she is the proper person to make decisions concerning the release of the City's public records.

For reasons explained above, the City acted inconsistently with the Open Records Act in allowing inspection of the October, 1994 checks but not providing copies of them. Referring Ms. Jones to the Audit Committee for access to and for copies of the checks would have been appropriate if the Mayor, as official custodian, was authorizing the Audit Committee, the actual possessor of the checks, to allow Ms. Jones to inspect the records. However, the facts before us in this regard are unclear.

In Ms. Jones's March 28, 1995 request to Mr. Philip D. King, City Councilman, she states that pursuant to the instructions of Mayor Douglas she was requesting to inspect the original checks and bank statements of the General Fund and have copies of checks and bank statements beginning from January 1, 1994, until the present date.

Mr. King responded that such a request must be made to the Mayor's office and enclosed a copy of the City's open records request form for her to deliver or mail to the City.

In subsequent documentation, Ms. Jones indicates she reviewed these records on April 12, 1995, at City Hall. The Chief of Police and a State Police Detective were present. Ms. Jones states that, in effect, this environment was not conducive to free and open inspection of the records. This issue was not raised in Ms. Jones's letter of appeal. We will discuss this issue to explain, for the benefit of both parties, what the Open Records Act requires.

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 harassment."

In the documentation provided this office, there is discussion 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 harassment. The policy of the Open Records Act declares that a "free and open examination of public records is in the public interest."

Ms. Jones 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. Nancy J. Jones

P.O. Box 65

Bardwell, KY 42023