NOT TO BE PUBLISHED
96-ORD-117
May 23, 1995
In re: Joe Wagner/Paducah Police Department
OPEN RECORDS DECISION
This matter comes to the Attorney General as an appeal by Joe Wagner, an inmate at Western Kentucky Correctional Complex, to the Paducah Police Department. On November 13, 1995, Mr. Wagner requested a copy of the “drug transaction tape pertaining to Officer Lawrence Acree, Bruce St. Clair and Joe Wagner, dated November 19, 1991, at the residence of Joe P. Smith.” Mr. Wagner enclosed with his request a check for $3.00 to cover the cost of the tape.
On January 19, 1996, Captain Bill Gordon, a drug enforcement officer, responded on behalf of the Police Department. In his response, Captain Gordon stated that since the incident occurred over four years ago, the tapes and files in question had been “closed and moved to destruction.” Continuing, he stated that the tapes had been archived and were difficult to work with. [1] Finally, he noted that he was confused about which tape Mr. Wagner actually wanted, since there were a number of tapes implicated by the request, and that Mr. Wagner failed to provide adequate funds to reproduce and ship the tapes.
We are asked to determine if the Paducah Police Department's actions were consistent with the Kentucky Open Records Act. For the reasons set forth below, we conclude that the Paducah Police Department's response, although procedurally deficient, was substantively correct.
We begin by noting that the Police Department's response was inconsistent with the procedural requirements of the Open Records Act. KRS 61.872(5) provides:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, 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.
In 93-ORD-43, this office, in dealing with the above-quoted statutory provision, said in part as follows:
This section may be invoked only if a record is “in active use, in storage or not otherwise available. . . .” Any notification of a delay in affording access to the record in excess of three days must be accompanied by a detailed explanation of the cause and a statement of the earliest date, time, and place on which it will be available for inspection. KRS 61.872(5) does not permit an agency to postpone its decision for reasons other than those enumerated in the statute.
In 95-ORD-132, this office said in part that if the records requested are not readily available, that circumstance might necessitate a reasonable extension of the three-day period of limitation. However, the burden is on the public agency to provide a detailed explanation of the cause of the delay and to arrange for inspection at the earliest possible date. See also, 95-ORD-130.
It is, therefore, the decision of the Attorney General that while the Paducah Police Department has belatedly provided an explanation as to why the records requested are not available for inspection, that entity violated the Open Records Act by not furnishing to the requesting party the earliest date on which those records will be available for inspection. The public agency should immediately advise the requesting party in writing as to the earliest date on which those records will be available.
Turning to the substantive issue in this appeal, we find that the Paducah Police Department properly advised Mr. Wagner that he must pay, in advance, a reasonable fee for copying the tapes and sending them to him. This office has previously stated that requiring advance payment of reproduction costs and postage is consistent with the Open Records Act.
In OAG 91-210, this office dealt with 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[(3)].
Friend v. Rees, 696 S.W.2d at 326. (Emphasis added.) We believe that this case is dispositive of the present appeal. See also, 92-ORD-1363; 94-ORD-90. [2]
The Paducah Police Department's prepayment 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 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
tg/1598
Distributed to:
Joe Wagner, #111705
Western Kentucky Correctional Complex
P.O. Box 5000
Eddyville, Kentucky 42038-5000
Captain Bill Gordon
Paducah Police, Drug Enforcement
P.O. Box 2267
300 South Fifth Street
Paducah, Kentucky 42002-2267
[1] Since Captain Gordon does not specifically state that the tapes are unavailable, this office will assume that the tape can be retrieved.
[2] The criteria for determining the reasonableness of copying fees are set forth at KRS 61.874(3), and include the cost of media and mechanical processing (meaning paper and xerox machine costs), but not including the cost of staff time required. The Paducah Police Department should insure that the $17.00 charge reflects these costs, and these costs alone.