NOT TO BE PUBLISHED

96-ORD-79

April 9, 1996

In re: James E. Fairrow/Madisonville Police Department

OPEN RECORDS DECISION

This matter comes to the Attorney General on appeal from the actions of the Madisonville Police Department relative to James Fairrow's request for copies of numerous records relating to his arrest for the murder of Brian Dolin.

On March 20, 1996, this office wrote to Captain Marc Boggs informing him that Mr. Fairrow had not yet received a response to his open records request. On March 20, 1996, this office received a letter from Mr. Joe A. Evans, City Attorney for the City of Madisonville, who responded on behalf of Captain Boggs. In his letter, Mr. Evans informed this office that on March 20, 1996, the City of Madisonville responded to Mr. Fairrow's request by providing the requested information with the exception of “interviews on one microcassette and interviews on eleven separate video tapes.” Relying on KRS 61.874(1) and KRS 61.872(3)(b), Mr. Evans advised Mr. Fairrow that in order for him to receive the information on the tapes, the “City of Madisonville has requested that he advance the City the reasonable costs of $10.00 per video tape to cover the cost of reproducing the tape and mailing same exclusive of the staff time associated with making the copies.”

We begin by noting that the City's response was inconsistent with the procedural requirements of the Open Records Act. KRS 61.880(1) provides:

Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a

statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.

The Madisonville Police Department's response to Mr. Fairrow's March 5, 1996, request was issued on March 20, 1996, approximately eleven days after the statutory deadline. This violation is mitigated by the fact that the request was originally misdirected and belatedly forwarded to the City Attorney for a response. Nevertheless, we urge the Madisonville Police Department to review KRS 61.880(1) to insure that future responses conform to the Open Records Act.

The question presented in this appeal is whether the Madisonville Police Department violated the Open Records Act by requiring advance payment of reproduction and copying charges. For the reasons set forth below, and based on the authorities cited, we conclude that the Police Department properly required payment of reasonable fees attendant to Mr. Fairrow's request.

In OAG 91-210, this office addressed the propriety of assessing reasonable copying charges to inmates. At page 2 of that opinion, we observed:

In Friend v. Rees, Ky App., 696 S.W. 2d 325 (1985), the Kentucky Court of Appeals addressed a similar question, holding that an inmate is entitled to a copy of an open record upon compliance with a reasonable reproduction charge. Inmate Friend asserted that he was entitled to copies at no cost under the Kentucky Open Records Act. The Court of Appeals flatly rejected his position, noting:

[T]he Chief Clerk's office offered to provide copies of . . . [Friend's] records provided he tender the fee of ten cents per page. A public agency is authorized to prescribe reasonable fees for making copies of public records. KRS 61.876(1)(c) and KRS 61.874(2).

Friend v. Rees, 696 S.W.2d at 326. (Emphasis added.) We believe this case is dispositive of the present appeal.

[The inmate] has been advised that a copy of the requested records will be released to him when he has sufficient funds in his inmate account. You have not denied his request, but have implemented the rule announced in Friend v. Rees, supra, and KRS 61.874(2). Your actions were therefore entirely consistent with the Open Records Act.

We believe that OAG 91-210, along with the court's opinion in Friend, is dispositive of this current appeal. See also, 92-ORD-1363; 94-ORD-90 (copies enclosed).

The Madisonville Police Department's policy is entirely consistent with the Open Records Act and the rule announced in Friend v. Rees. It is not appropriate for this office to question the clearly expressed intent of the legislature requiring prepayment of a reasonable fee for copies. KRS 61.874(1); KRS 61.872(3)(b).

A party aggrieved by this decision may challenge it by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General must be notified of any action in circuit court but shall not be named as a party in that action or in any subsequent proceedings.

A.B. CHANDLER III

ATTORNEY GENERAL

AMYE L. BENSENHAVER

ASSISTANT ATTORNEY GENERAL

tmg/305

Enclosures

Distributed to:

Mr. Ron Hunt, Police Chief

37 East Center Street

P.O. Box 705

Madisonville, Kentucky 42431

Mr. Joe A. Evans, III

City Attorney

P.O. Box 705

Madisonville, Kentucky 42431

James E. Fairrow, #96767

Otter Creek Correctional Complex

P.O. Box 5000

Wheelwright, Kentucky 41669