The "cost" of access: when agencies frustrate the public's right to know by charging excessive fees

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The News-Democrat & Leader reports that the attorney general last week ruled against the Logan County jailer in an open records dispute involving a magistrate’s request for jail commissary records.

What was the issue that compelled a county magistrate to appeal the county jailer’s handling of the magistrate’s records request?

The issue addressed by the attorney general in 17-ORD-244 was whether the jailer subverted the intent of the Open Records Act in imposing copying fees in excess of $4,500 for records responsive to the magistrate’s request. Leaving aside the issue of whether the jailer legitimately located  over 31,600 responsive records -- or simply sandbagged the magistrate with non-responsive records -- he assessed nearly $1,500 of the copying fee for “deputy overtime hours and benefits” associated with retrieving, reviewing, redacting and reproducing the records.

In the wake of an audit critical of the jail’s record keeping, Magistrate Dickie Carter submitted a request to Jailer Phil Gregory on September 11 for a “list of all checks and deposits written, date, amount, who to and what for” relating to the commissary for the past two years.

Carter indicated that he wished to be notified if the cost of reproducing responsive records would exceed $20, but asked that the jailer waive the copying fee since “disclosure of the requested information is in the public interest and will contribute significantly to the public’s understanding of [how] the commissary account is benefitting the inmates.”

His request was not out of line since KRS 61.878(5) encourages public officials and agencies to share public records “when the exchange is serving a legitimate governmental need or is necessary in the performance of a legitimate government function.”

And although Gregory was not required to honor Carter’s request for a fee waiver, he was required to calculate the copying fee based on statutorily established factors that expressly exclude staff time.

I don’t know, and frankly don’t care, whether there is “bad blood” between these county officials. Nothing is -- or at least should be -- less relevant to an open records exchange than state or local politics and political bickering.

What I do know is that, by its express terms, the Open Records Act  prohibits public agencies from attempting to recover staff costs for reproducing public records that are responsive to an open records request. The Act permits agencies to “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.”

Gregory has held office since 2014. Perhaps he should have familiarized himself with his statutorily assigned duties under the Open Records Act instead of bemoaning the “enormous hardship” to his staff in discharging these duties.

And, if he genuinely believed that Carter’s request was a “personal vendetta” and a “political attack,”  he should have consulted with legal counsel when he received the request to determine if he could successfully deny the request as unreasonably burdensome or intended to disrupt his agency’s essential functions. At a bare minimum, he should have consulted with counsel -- or reviewed the Open Records Act -- to determine how to properly calculate copying fees.

Jailer Gregory is certainly free to consult with legal counsel now for the purpose of weighing his appeal options, but this much I can assure him, “the opinion of the Attorney General’s Office is accurate on this issue.” Any attempt to recover staff costs for copying public records is prohibited by statute and therefore futile.

The Open Records Act is clear on this point. Nevertheless, excessive copying fees are a recurring issue in open records disputes. Anticipating this likelihood, the General Assembly included a provision authorizing attorney general review of disputes involving the imposition of excessive fees to refute agency claims that the fee issue was mooted by disclosure of the requested records.

In addition to reviewing appeals based on denials of open records requests, the attorney general is empowered to review open records disputes “[i]f a person feels the intent of KRS 61.870 to 61.884 is being subverted by an agency short of denial of inspection, including but not limited to the imposition of excessive fees. . . .” The dispute is “subject to the same adjudicatory process as if the record had been denied.”

Public records belong to the public.

Public agencies that persist in imposing excessive copying fees in order to dissuade the public from submitting requests, or in order to generate additional revenue for their agencies, or because they don't like the requester, invite successful legal challenges like 17-ORD-244. The courts and the attorney general ”have struck a reasonable balance between the agency’s right to recover its actual costs, excluding staff costs, and the public’s right of access to copies of records at a non-prohibitive charge.” Public officials should be guided by this principle rather than by frustration, greed, or personal hostility.