December 18, 1996

In re: Dennis F. Janes/Transportation Cabinet, Division of Driver Licensing

Open Records Decision

This matter comes to the Attorney General on appeal from the Transportation Cabinet's partial denial of Dennis F. Janes's October 1, 1996, request to inspect various records relating to his client William Wathen. On September 3, 1996, the Cabinet ordered Mr. Wathen to submit to an “in-car driver evaluation” at Frazier Rehabilitation Center. Following the evaluation, the Cabinet advised Mr. Wathen that he was unfit to continue driving, and scheduled a hearing for December 12, 1996, to determine whether his driving privilege should be suspended.

On October 7, 1996, the Transportation Cabinet responded to Mr. Janes's request. Lisa Bowling, Coordinator for the Medical Review Board of the Division of Driver Licensing, furnished Mr. Janes with a copy of a medical form prepared by Dr. Kenneth Hodge, and directed him to submit a $3.00 money order to obtain a copy of Mr. Wathen's driving record. However, Ms. Bowling denied his request for reports prepared by Frazier Rehabilitation Center, advising him that these reports “must be obtained directly from that office.” After submitting a request for the reports to Frazier Rehabilitation Center, Mr. Janes received an invoice from Innovision, a company which had contracted with the Center to copy the reports. The invoice indicated a balance due of $40.00, based on a charge of $15.00 for 15 pages and $25.00 for “postage/supplies/

handling.” It is this charge which Mr. Janes challenges.

Upon receipt of this office's notification of open records appeal, the Cabinet modified its position. On November 25, Ms. Bowling informed this office and Mr. Janes

that she had contacted the Medical Records Department at Frazier Rehabilitation Center, and been advised that Mr. Janes could obtain a copy of the seven page evaluation directly from the Center at a cost of $1.00 per page.

We are asked to determine if the Transportation Cabinet violated provisions of the Open Records Act in responding to Mr. Janes's request. For the reasons set forth below, and upon the authorities cited, we conclude that the Cabinet violated KRS 61.874(3), the reasonable fee provision of the Act.

KRS 61.870(2) defines the term “public record” as “all 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.” All public records are governed by the Kentucky Open Records Act, and are subject to its terms and conditions. KRS 61.874(3) provides that a 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.” The cost for copying nonexempt public records must be calculated on this basis, and no other.

The Transportation Cabinet maintains that copies of the report prepared by Frazier Rehabilitation Center must be obtained directly from the Center at a cost of $1.00 per page. We believe that this position contravenes KRS 61.874(3). The report is a “public record” for purposes of the Open Records Act insofar as it is a document which is “used, in the possession of or retained by a public agency.” Although it may be excluded from the public generally, pursuant to KRS 671.878(1)(a), as a record the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, the report is not exempt as to the requester here, an attorney representing the individual who is its subject. The Cabinet is obligated to furnish Mr. Janes with a copy of the report at a fee not to exceed its actual costs. The courts, and this office, have determined that a charge of ten cents per page is reasonable for a standard 8-1/2 inches x 11 inches paper copy. Friend v. Rees, Ky. App., 696 S.W.2d 325 (1985); OAG 92- 79; OAG 91-210, OAG 87-80; OAG 82-396; OAG 80-421.

The Cabinet expresses concern that its copy of the report prepared by Frazier Rehabilitation Center contains a confidentiality clause at the foot of the facsimile cover sheet warning against “unauthorized dissemination or copying.” It is the opinion of this office that this language, which is standard prescriptive language appearing on facsimile cover sheets, does not relieve a public agency of its duties under the Open Records Act, or otherwise abrogate, abridge, or nullify the Act. The language which appears in the confidentiality clause of the Frazier Rehabilitation Center facsimile cover sheet is aimed at notifying unintended recipients of the facsimile transmission that the records contained therein may be confidential, and should be returned to the sender. It does not constitute an independent basis for denying access to public records.

It should be noted that KRS 422.317(1) mandates:

Upon a patient's written request, a hospital licensed under KRS Chapter 216B or a health care provider shall provide, without charge to the patient, a copy of the patient's medical record. A copying fee, not to exceed one dollar ($1) per page, may be charged by the health care provider for furnishing a second copy of the patient's medical record upon request either by the patient or the patient's attorney or the patient's authorized representative.

(Emphasis added.) Assuming for the sake of argument that the Cabinet had not used, possessed, or retained a copy of the report prepared by Frazier Rehabilitation Center, or, alternatively, that Mr. Janes had not proceeded under the Open Records Act, we believe that this provision may require release of a copy of Mr. Wathen's records without charge. Because this provision is not enforceable under the Open Records Act, but is instead subject to enforcement by the Kentucky Board of Medical Licensure, we decline to comment further on its applicability to the record at issue in this appeal. For our purposes, it is sufficient to conclude that the Transportation Cabinet erred in directing Mr. Janes to submit his request to Frazier Rehabilitation Center when the disputed report was clearly a public record within the scope of KRS 61.870(2), and subject to the reasonable fee provision codified at KRS 61.874(3). The Cabinet should immediately arrange to provide Mr. Janes with a copy of the report at a fee not to exceed its actual costs.

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 KRS61.880(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:

Dennis F. Janes

Segal, Isenberg, Sales, Stewart, Cutler & Tillman

2100 Waterfront Plaza

325 West Main Street

Louisville KY 40202-4251

Lisa Bowling

Medical Review Board

Division of Driver Licensing

Transportation Cabinet

State Office Building

Frankfort KY 40601