September 5, 1996

In re: Carol Napier/Pike County Board of Education

Open Records Decision

This matter comes to the Attorney General on appeal from the Pike County Board of Education's response to Carol Napier's July 16, 1996, request for various financial records, and other records relating to the operation of the Pike County school system. In a letter dated July 18, 1996, Bruce Hopkins, director of communications for the school system, responded to Ms. Napier's request as follows:

Many of the items you requested may be viewed and/or copied at the Central Office of the Pike County School System on the South Mayo Trail at any time during regular business hours of 8:00 a.m. to 4:30 p.m. However, many of the breakdowns you requested will require preparation by Mr. Joe Taylor, Financial Analyst. Since Mr. Taylor was on vacation this week, I am unable to supply you with that data at this time. However, this will be forthcoming within 30 days, and I will contact you when this material is available.

Additionally, I have asked Mr. Neal Smith, Board Counsel, to respond to item number 11 in your request, since the report you requested was made verbally to members of the Pike County Board of Education and no written summation was delivered.

Dissatisfied with this response, Ms. Napier initiated an appeal to the Attorney General.

In her letter of appeal, Ms. Napier explains that because she works and maintains the same office hours as the Board's central office, it is not possible for her to conduct an on-site inspection of the records. She advises this office that she works in Floyd County, and not in Pike County where the records are located. Ms. Napier also objects to the Board's failure to adhere to the three day statutory deadline for agency response to a records request and records access.

In a follow-up letter to this office, Neal Smith elaborated on the Board's position. He advised:

KRS 61.872 provides that “all public records shall be open for inspection by any person. . . “. That statute further provides that the person requesting the documents may inspect the public records during regular office hours or by mailing copies of the records from the agency “to a person whose residence or principal place of business is outside the county in which the public records are located”. It is my understanding that Ms. Napier lives in Pike County and thus the Board would not be required to copy and mail these records to Ms. Napier. In addition it is my understanding that the Board can charge a reasonable fee for copying these records at the School Board offices. The only guidelines that I can find for the definition for reasonable fee is provided in KRS 342.035(7) which restricts photocopying fees in workers' compensation cases to $.50 per page.

Mr. Neal reaffirmed the Board's willingness to accommodate Ms. Napier, and to provide her with unrestricted access to the records identified in her request during regular business hours.

We are asked to determine if the Pike County Board of Education violated the provisions of the Open Records Act in responding to Ms. Napier's request. For the reasons set forth below, we conclude that the Board's response violated KRS 61.872(3)(b), requiring agencies to mail copies of public records at the request of the applicant, and upon prepayment of copying and postage charges, and KRS 61.872(5), requiring public agencies to afford the applicant timely access to those records.

KRS 61.872(3)(a) and (b) establishes guidelines for records access under the Open Records Act. That statute provides:

(3) A person may inspect the public records:

(a) During the regular office hours of the public agency; or

(b) By receiving copies of the public records from the public agency through the mail. The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency. If the person requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing.

The statute thus contemplates records access by one of two means: On-site inspection during the regular office hours of the agency, in suitable facilities provided by the agency, or receipt of the records from the agency through the mail. Although the term “principal place of business” has a technical meaning in the law, we believe that the legislature, in using this language, intended to facilitate the broadest possible access to public records. Consistent with the principle that “free and open examination of public records is in the public interest,” codified at KRS 61.871, it is the opinion of this office that the term “principal place of business” is synonymous with the term “principal place of employment.” Any other interpretation of this language would lead to an absurd result. Thus, a requester who both lives and works in the same county where the public records are located may be required to inspect the records prior to receiving copies. A requester who lives or works in a county other than the county where the public records are located may demand that the agency provide him with copies of records, without inspecting those records, if he precisely describes the records and they are readily available within the agency. Because she works in Floyd County, Ms. Napier clearly falls within the latter category. Having precisely described the records to which she wishes access, and agreed to pay for copies in advance, she is entitled to receive copies by mail. See 95-ORD-52.

With respect to the Board's failure to afford Ms. Napier timely access to all of the existing records identified in her request, we note that the only exceptions to the general rule of notification and records access within three business days are found at KRS 61.872(4), (5), and (6). If the person who receives the request does not have “custody or control” of the records, he or she is obligated to notify the requester, and furnish the name and address (location) of the actual custodian. If the record is “in active use, in storage or not otherwise available,” the custodian must immediately notify the requester and designate a place, time, and date for inspection within three days of receipt of the request. If further delay is necessary, the custodian must provide a detailed explanation of the cause of the delay, and designate the earliest possible date, time, and place on which the records will be available for inspection. If the request for records is an unreasonably burdensome one, or the custodian believes that repeated requests are intended to disrupt essential functions of the agency, he or she may refuse to permit inspection or mail copies of the records. It is not an acceptable practice to postpone access by as much as thirty days while an open records request is processed. 93-ORD-134, a copy of which is attached hereto and incorporated by reference, contains a lengthy analysis of the concept of timely access. 93-ORD-134, page 4 through 6. We believe that that decision is dispositive of the instant appeal, and urge the Pike County Board of Education to reevaluate its policies relative to public records access to insure that records requests are satisfied in a timely fashion.

Turning to the issue of reasonable copying charges, we find that KRS 61.874(3) is controlling. That statute provides for the imposition of a reasonable fee for making copies “which shall not exceed the actual cost of reproduction, including the costs of the media and any mechanical processing cost incurred . . . , but not including the cost of staff required.” In Friend v Rees, Ky. App., 696 S.,W.2d 325 (1985), the Court of Appeals found that ten cents a copy was a reasonable fee for reproducing standard hard copy records. The Attorney General has adopted this position in a long line of decisions. See, e.g., OAGs 84-91, 88-74, 89-9, 91-98, 91-210, 92-79, 92-ORD-1491, 93-ORD-44, 94-ORD-43, 95-ORD-82, 96-ORD-3. Unless the Pike County Board of Education can substantiate that its actual costs for reproducing records exceeds ten cents per page, it must provide copies to Ms. Napier at this cost.

A party aggrieved by this decision may appeal it 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 proceeding.

A. B. Chandler III

Attorney General

Amye L. Bensenhaver

Assistant Attorney General



Distributed to:

Carol Napier

Concerned Citizens for Pike County

1803 Hurricane Creek Road

Kimper KY 41539

Bruce Hopkins

Director of Communications

Pike County School System

P. O. Box 3097

Pikeville KY 41502

Neal Smith

Todd & Smith

P. O. Box 1079

Pikeville KY 41502-1079