NOT TO BE PUBLISHED
November 27, 1996
In re: John Wilson/City of Somerset
Open Records Decision
This matter comes to the Attorney General on appeal from the City of Somerset's handling of a series of open records requests submitted by John Wilson on October 15, 1996. In seven separate letters, Mr. Wilson requested copies of:
1) The City of Somerset's policy governing open records requests, including memoranda and letters sent to city departments and personnel concerning open records requests;
2) Minutes and audio cassettes of the October 14, 1996, meeting of the Somerset City Council;
3) All correspondence to or from the firm of Mayes, Sudderth, Etheredge, Inc. for the year 1996;
4) Minutes of the Somerset Board of Adjustments for 1995 and 1996;
5) Bylaws of the Somerset Planning Commission and the Somerset Board of Adjustment;
6) Minutes of the Somerset Planning Commission for 1995 and 1996;
7) Minutes of the City Council for 1995 and 1996.
On behalf of the city, Joe L. Travis responded to Mr. Wilson's requests. In a letter dated October 18, 1996, Mr. Travis stated that the city would not honor Mr. Wilson's requests, which he characterized as burdensome, overreaching and simply harassment. Continuing, Mr. Travis observed:
We have complied with your numerous requests in the past and will continue to try and cooperate, particularly since these are public records. However, without some curtailment of your voluminous requests or some valid or reasonable explanation for same, plus payment of reasonable expenses and costs involved in providing these materials, we will not comply with further requests.
In a subsequent letter, dated October 23, 1996, Mr. Travis advised Mr. Wilson that his request for the 1995 and 1996 minutes of the city council, board of adjustments, and planning commission falls under KRS 61.835 which is outside the open records statute. Pursuant to . . . that provision, he stated that Mr. Wilson could inspect the minutes at the City Clerk's office during regular business hours. With respect to the remaining records identified in Mr. Wilson's request, Mr. Travis advised him that the city clerk would need sufficient time to gather these records and determine the fees for copying and mailing said records. Upon prepayment of all fees and costs of mailing, including fees and costs for records previously requested but not claimed, Mr. Travis stated, the records would be forwarded to Mr. Wilson.
On November 4, 1996, Mr. Travis submitted a supplemental response to Mr. Wilson's open records appeal. He again expressed consternation at the breadth of the requests, and Mr. Wilson's failure to claim copies of records previously prepared for him, but affirmatively stated that the requested records would be available to Mr. Wilson on or before Friday, November 8, 1996. In closing, he observed:
[T]he City of Somerset has tried in good faith to supply the numerous records Mr. Wilson has requested in the past and is now requesting. However, we feel Mr. Wilson should also act in good faith. We have asked Mr. Wilson to review these records at the Clerk's Office and tell as [sic] which ones he wants in order to save both parties time and expense. However, he has refused this reasonable request.
We are asked to determine if the City of Somerset violated provisions of the Open Records Act in responding to Mr. Wilson's October 15 open records requests. For the reasons set forth below, and upon the authorities cited, we conclude that the city's response constituted a partial violation of the Act.
Although the city has made somewhat contradictory statements about its intention to require prepayment of copying costs, including postage, we believe that such a requirement is entirely consistent with KRS 61.872(3)(b). That statute provides:
(3) A person may inspect the public records:
(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.
See also, KRS 61.874(1). 95-ORD-90, a copy of which is attached hereto and incorporated by reference, is dispositive of this issue. At page 2 of that decision we declined to question the clearly expressed intent of the legislature requiring prepayment of a reasonable fee for copies. In view of the problem of unclaimed records which the city has experienced in the past, we believe that a prepayment policy would be prudent.
What constitutes a reasonable fee is more problematic. KRS 61.874(3) provides:
The public agency may prescribe a reasonable fee for making copies of nonexempt public records 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.
We direct the parties' attention to 96-ORD-159, a copy of which is attached hereto and incorporated by reference. Although the city has not indicated how it intends to calculate the copying charge, Mr. Travis states that an individual may be hired to retrieve and copy the records, and that the city intends to charge Mr. Wilson for copies of records which he previously requested but has not claimed. In our view, the city cannot properly charge Mr. Wilson for the unclaimed records or the additional staff hired to satisfy his request. Such charges do not reflect its actual cost, including the costs of the media and any mechanical processing cost . . . , but not including the cost of staff required.
With respect to the city's obligation to provide Mr. Wilson with copies, we direct the parties' attention to 96-ORD-186, a copy of which is attached hereto and incorporated by reference. Pursuant to KRS 61.872(3)(b), the city must provide copies, upon request and prepayment of copying charges, to an applicant who lives or works in a county other than the county where the public records are located.
In its initial response, the city asserted that Mr. Wilson's requests were burdensome, overreaching and simply harassment, and refused to honor them. In the absence of clear and convincing evidence to support this assertion, we find that the city's reliance on KRS 61.872(6) was misplaced. We believe that 94-ORD-86, a copy of which is attached hereto and incorporated by reference, is controlling. To the extent that the city relied on this provision to originally deny Mr. Wilson's request, it violated the Open Records Act.
As a precondition to honoring subsequent requests, the city demanded that Mr. Wilson offer a reasonable explanation for his voluminous requests. This demand is inconsistent with the provisions of the Act, and in particular KRS 61.872(2). That statute provides:
Any person shall have the right to inspect public records. The official custodian may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected. The application shall be hand delivered, mailed, or sent via facsimile to the public agency.
This provision is exclusive. The custodian of records can require no more than a written application, signed by the applicant, describing the records to be inspected. The custodian cannot require the applicant to explain why he or she needs the records. Thus, in Zink v Commonwealth, Ky. App., 902 S.W.2d 825, 828 (1994), the Kentucky Court of Appeals noted that its analysis does not turn on the purposes for which the request . . . is made or the identity of the person making the request. We believe that 94-ORD-101, a copy of which is attached hereto and incorporated by reference, is controlling.
The City of Somerset advances the argument that the minutes of public agencies fall[ ] under KRS 61.835 which is outside the open records statute. For this reason, the city maintains that they are available for inspection only on public agency premises, and not by receiving copies through the mail. We do not agree. KRS 61.870(2) defines a public record as:
[A]ll books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency. Public record shall not include any records owned or maintained by or for a body referred to in subsection (1)(h) of this section that are not related to functions, activities, programs, or operations funded by state or local authority.
There can be little doubt that although KRS 61.835 compels the creation of minutes of public agency meetings, and thus that the minutes are governed by the Open Meetings Act, they are also governed by the Open Records Act as records which are prepared, owned, used, in the possession of or retained by a public agency. Requests for such records must be accorded the same treatment as any other request under the Open Records Act. Pursuant to KRS 61.872(3)(b), an applicant may receive copies of minutes through the mail if his or her residence or place of employment is outside the county in which the public records are located, if he or she precisely describes them, and if they are readily available within the agency. We believe that Mr. Wilson is entitled to receive copies of minutes by mail upon prepayment of reasonable copying charges.
On October 18, the City of Somerset denied Mr. Wilson's requests. Three business days later, the city advised him that his request would be honored after the clerk had had sufficient time to gather the records and determine the appropriate fees. On November 4, the city notified Mr. Wilson and this office that the records would be available on November 8. A delay of this duration raises the issue of timely access to public records. We direct the parties' attention to 94-ORD-134, and in particular the discussion at pages 9 through 12, which we believe is dispositive of this issue. A copy of that decision is attached hereto and incorporated by reference. In view of the breadth of Mr. Wilson's request, and the number of documents it encompasses, we believe that a reasonable extension of the three day period for response was appropriate. Nevertheless, it is our opinion that the city was obligated to provide him with a detailed explanation of the cause for the delay, and advise him of the earliest date the records would be mailed to him. To the extent that it failed to do so, the city violated the Open Records Act.
We remind the parties to this appeal that in resolving an open records dispute:
[T]he Attorney General is not concerned with heroes and villains. Our review is limited to the legal and factual issues with which we are presented. Our decisions reflect a reasoned and objective resolution of these issues. It is our statutory duty to enforce the rights and obligations of the parties in an open records dispute, not to malign or praise those parties.
93-ORD-99, p. 4. We encourage the parties to work, in a spirit of cooperation, toward a resolution of the various issue raised in this appeal.
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
Amye L. Bensenhaver
Assistant Attorney General
132 Glendale Lane
Somerset KY 42501
Joe L. Travis
Travis, Pruitt & Associates
207 East Mt. Vernon Street
Post Office Drawer 30
Somerset KY 42502-0030