NOT TO BE PUBLISHED
April 4, 1996
In re: Nancy Arnett Rayburn/Office of the Kenton County License Inspector
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the response of the Office of the Kenton County License Inspector to Ms. Nancy Arnett Rayburn's open records request for certain information contained in records maintained by the agency.
By letter dated November 8, 1996, Ms. Rayburn requested the following information:
The name of the business, the business owner, the business address, the business telephone number, how the business is organized (sole proprietorship, partnership or corporation), whether the business plans to have employees and the date of application for the occupational license applications for the period January 1, 1995 to October 31, 1995. If a printout of all of this information is not available or does not exist, then I am requesting to inspect all occupational license applications for the period January 1, 1995 to October 31, 1995.
By letter dated November 9, 1995, Mr. Larry Klein, License Inspector, Kenton County Fiscal Court, responded to Ms. Rayburn's request, stating in relevant part:
The financial records maintained by this Office are confidential. It will take some time to review my legal authority to provide the information you have requested. I will give you an answer to your request no later than November 22, 1995.
Please contact me if you have any questions regarding this matter.
By letter dated November 28, 1995, Ms. Rayburn wrote Mr. Garry L. Edmondson, Kenton County Attorney, asking him to review Mr. Klein's response to her request. In this letter, she states:
As you can see from his letter, he did not provide timely access to public records. He did give me the information requested on November 20, 1995. The information I requested was given to me in two forms. One included 43 pages of handwritten account numbers and business name. The other information I received was a 400 page print-out which is a standard master list of all businesses in Kenton County. The 43 pages had a total of 1,046 business names. The print-out allows 17 businesses per page. Since I only requested business from 1-1-95 to 10-31-95, I should only pay for the information I requested. The 1,046 businesses would have filled 62 pages (1046/17 businesses per page). The total pages which I should be charged for is 43 hand written pages plus 62 print-out pages for a total of 105 pages. Mr. Klein charged me for the 400 print-out pages plus 43 handwritten pages for a total of 443 x .10 per page which amounted to $44.30. According to the Open Records Act, the fee shall not exceed the actual cost of copying. I'm sure the actual cost of copying my information is closer to .03 per copy. Which is what is charged by most copying services (Office Max, Mail Boxes Etc.). Therefore my total cost should be 105 sheets at .03 per page for a total of $3.15. I would like a refund in the amount of $41.15 (44.30 - 3.15).
Please advise me and Mr. Klein as to the law regarding this situation.
In her letter of appeal to this office, dated December 6, 1995, Ms. Rayburn, in pertinent part, states:
As you can see he [Mr. Klein] did not supply the information in a timely manner. We agreed to compromise on the information he did supply, it was limited to the business name, the business address, and the business phone number. In general, Mr. Klein has been very uncooperative.
When Mr. Klein did give me the information, I feel that he overcharged me as a deterrent for requesting the information in the future. I wrote to Garry Edmondson, Kenton County Attorney, regarding my overpayment on November 28, 1995, he had not responded by December 6, 1995 so I telephoned him to get his opinion on the matter. He stated that .10 was reasonable and that it was probably more than that with staff time. I said the law required that the amount paid be the actual not reasonable cost excluding staff time. Also in the letter to the county attorney, I discussed being charged for information I didn't request. His response was that in order to give me the information I requested, they had to give me the entire listing and therefore I should be charged for the entire printout.
When I was talking with the county attorney on December 6, 1995, I asked that he put his opinion in writing. He said he didn't have to jump through hoops for me and that he didn't have time to write me a letter. The county attorney was very disrespectful to me on the phone and stated that he knew I wanted the information to troll for clients. Why I'm requesting the information is irrelevant and should not be considered.
The reason I'm writing to you is to obtain your opinion regarding what documents I should be charged for and your opinion on the actual cost that I should be charged. Although $44.30 is not a great deal of money and an amount I'm willing to pay for the information, I feel that Mr. Klein is angry that I didn't just take his word for the fact that the information was confidential in our previous conversations prior to my studying the Kentucky Open Records Law and discovering that in fact what I was requesting was information that should be made available to me. I feel he is overcharging me an actual cost as well as the number of pages purely as a deterrent to my requesting the information in the future.
Subsequent to receipt of the letter of appeal and as authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, this office received a response from Mr. Garry L. Edmondson, Kenton County Attorney, on behalf of the County, regarding the issues raised in the appeal.
In his letter, Mr. Edmondson states in part:
There was discovered a hand written list (which is created by office personnel in order to assign new account numbers) that list was offered to the applicant and she accepted same. To pull out just that limited information would be a considerable task. Pursuant to KRS 61.872 the license inspector has no duty to create a record that does not exist.
The applicant is quite mistaken in her belief that it makes no difference why she is requesting the information. KRS 61.8745 sets a penalty for anyone using public information for a commercial purpose without disclosing same. TROLLING for clients is a commercial purpose and upon request by the license inspector should have been disclosed, then a negotiated price for the records would have been established.
We are asked to determine whether the actions of the Office of the Kenton County License Inspector in regard to Ms. Rayburn's open records request were in compliance with the Open Records Act. For the reasons which follow, it is the decision of this office that the agency's response was consistent in part and inconsistent in part with the Act.
KRS 61.880 sets forth the duties and responsibilities of a public agency relative to a request received under the Open Records Act. Subsection (1) of that provision requires that a public agency, upon receipt of a request for records under the Act, respond in writing to the requester within three working days of receipt of the request, and indicate whether the request will be granted. If the public agency denies all or any portion of the request, the response must include a statement of the specific exception authorizing the withholding, and a brief explanation of how the exception applies to the record withheld.
In general, a public agency cannot postpone or delay this statutory deadline. The burden on the agency to respond in three working days is, not infrequently, an onerous one. Nevertheless, the only exceptions to this general rule 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 afford the requester timely access to the requested records. 93-ORD-134. If, on the other hand, the records are in use, in storage, or otherwise unavailable, the agency must immediately so notify the requester, and designate a place, time, and date for inspection not to exceed three days from receipt of the request unless a detailed explanation of the cause is given for further delay and the place, time and earliest date on which the public record will be available for inspection. KRS 61.872(5).
Although the response to Ms. Rayburn's request was within the prescribed time, it was deficient because it did not set forth a statutorily authorized basis for either delaying production of the records beyond the statutory deadline or withholding the requested records. The Open Records Act does not authorize an agency to delay action on an open records request pending review of the applicability of a given exception to the Act or to do legal research. 92-ORD-1620. To the extent it failed to provide a statement of the specific exception authorizing withholding the records and a brief explanation of how the exception applied to the records within three working days, or, in the alternative, to release the records she requested, the response of the Office of the Kenton County License Inspector was procedurally deficient and inconsistent with the Open Records Act.
As to the issue regarding what documents Ms. Rayburn should be required to pay for and how much should be charged, we find that the agency's actions were consistent with the Open Records Act.
Pursuant to KRS 61.880(2)(c) and 40 KAR 1:030, Section 3., the undersigned contacted Mr. Klein to obtain additional information regarding the documents and issues involved in this appeal. Mr. Klein explained that the 43 page document was a handwritten log of new businesses maintained by the agency. The 400 page printout was a master list of all businesses, including new businesses, in the county. The two documents together provided Ms. Rayburn with the information she was seeking. The printout listed the businesses in alphabetical order, rather than by date of application for the occupational license. Mr. Klein stated that it would have required a considerable amount of time for the agency to search through the printout to extract the information requested by Ms. Rayburn as the computer was not programmed to provide the information in the format in which Ms. Rayburn requested. Mr. Klein stated that Ms. Rayburn accepted and paid for the printout in its existing format.
Ms. Rayburn contends the printout contains more pages and information than she requested. She states that the printout allows 17 businesses per page and that the 1,046 businesses from the handwritten pages would have filled 62 printout pages (1046/17 businesses per page). Thus, Ms. Rayburn concludes that she should have only been charged only for a total of 105 pages (43 + 62) rather than for 443 pages (43 + 400).
For the reasons which follow, we conclude that the Office of the Kenton County License Inspector acted consistent with the Open Records Act by providing the requested records in their existing format and assessing a charge of ten cents per page for the records copied.
KRS 61.874(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.
Ms. Rayburn was given the information she requested in two forms, 43 pages of handwritten account numbers and business name and the 400 page standard master list printout. The printout was in the standardized format in which the agency maintained the requested business records. Ms. Rayburn argues that this format contains more information than she requested, and that the information that she requested could be reduced from 400 pages to 62 pages. However, according to Mr. Klein, to produce the records in this format would require a different format than that in which the records were currently kept.
Under KRS 61.874(3), if the public agency is asked to produce a record in a nonstandardized format, the agency may, in its discretion, provide the requested format and recover staff costs as well as actual costs incurred. A requester must either accept the records requested in the standardized format maintained by the agency or negotiate with the agency to produce the records in a nonstandardized format. It is, of course, well settled that a public agency is not required to create a document that does not already exist in order to satisfy a request. 95-ORD-82. If the requester wants the records produced in a nonstandardized format and the agency agrees to do so, then the agency may charge for both staff costs and actual costs.
In this instance, the Office of the Kenton County License Inspector acted consistent with the Open Records Act in providing Ms. Rayburn with the records she requested, accepted, and paid for in the existing 400 page format.
As to the issue of the cost per copy, a public agency may only assess a reasonable copying charge for public records not to exceed its actual costs, excluding staff time required. This office has long recognized that unless an agency can document that its actual costs are greater than ten cents per page, both the courts and this office are unwilling to countenance higher copying charges. See, e.g., Friend v. Rees, Ky. App., 696 S.W.2d 325 (1985); OAG 80-421; 94-ORD-77; 95-ORD-110. In Friend v. Rees, supra, the Kentucky Court of Appeals held that ten cents per page was a reasonable copying charge under the Open Records Act. We believe that this rule still applies when a request is made for copies of public records, and the requester's purpose is a noncommercial one. Accordingly, we conclude that the charge of ten cents per page was not excessive as such has been recognized as a reasonable copying charge for public records.
Moreover, an agency may require a generalized statement of the intended use of the public record when such is necessary to aid in the determination of appropriate fees to be assessed should the request involve use of the non-exempt records for a commercial purpose. KRS 61.874(4). This is particularly so in situations, such as in the instant appeal, where the agency believes that the inspection is for commercial purposes. 95-ORD-17.
In addition, if nonexempt public records are requested for a commercial purpose, the public agency, pursuant to KRS 61.874(4)(c), may establish a reasonable fee based on one or both of the following:
1. Cost to the public agency of media, mechanical processing, and staff required to produce a copy of the public record or records;
2. Cost to the public agency of the creation, purchase, or other acquisition of the public records.
KRS 61.874(5) provides:
It shall be unlawful for a person to obtain a copy of any part of a public record for a:
(a) Commercial purpose, without stating the commercial purpose, if a certified statement from the requestor was required by the public agency pursuant to subsection (4)(b) of this section; or
(b) Commercial purpose, if the person uses or knowingly allows the use of the public record for a different commercial purpose; or
(c) Noncommercial purpose, if the person uses or knowingly allows the use of the public record for a commercial purpose. A newspaper, periodical, radio or television station shall not be held to have used or knowingly allowed the use of the public record for a commercial purpose merely because of its publication or broadcast, unless it has also given its express permission for that commercial use.
KRS 61.8745 mandates that a person who violates subsections of KRS 61.874 shall be liable to the public agency from which the public records were obtained for damages in the amount of:
(1) Three (3) times the amount that could have been charged for the public record if the actual commercial purpose for which it was obtained or used had been stated;
(2) Costs and reasonable attorneys' fees; and
(3) Any other penalty established by law.
This statute puts a requester on notice that failing to disclose that the requested records are to be used for a commercial use shall subject the requester to sanctions. 95-ORD-17. Accordingly, if the requested records are to be used for a commercial purpose, the requester should so state and the agency would be entitled to recover its costs for production of the records as authorized under KRS 61.874(4).
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
JAMES M. RINGO
ASSISTANT ATTORNEY GENERAL
Nancy Arnett Rayburn, CPA
Rayburn & Company LLP
525 West Fifth Street
Covington, Kentucky 41011-1209
Kenton County Fiscal Court
P. O. Box 792
303 Court Street, Room 207
Covington, Kentucky 410 12