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Whitley Clerk says she plans to defy open records ruling
Posted On 30 Nov 2011
Nearly two months ago the Kentucky Attorney General’s Office ruled that the Whitley County Clerk’s Office violated the intent of the state open records law by not allowing a man to use a handheld scanning device to copy documents in her office and by charging too much for copies.
The man, who filed the open records law appeal, apparently won his battle to use his handheld scanning device at the clerk’s office and to get copies for 10 cents a page rather than the 50 cents normally charged.
However, the issue seems far from settled.
Whitley County Clerk Kay Schwartz said she plans to keep her policy of barring use of the copying devices in place, and has no plans to change her overall policy of charging 50 cents per copy, but the Kentucky Attorney General’s Office says these policies break the law.
The case in question started after Larry Bailey, a Laurel County resident, was at the Whitley County Clerk’s Office earlier this year doing genealogy research on both his and his wife’s families. He traced his great grandfather back to Whitley County and has uncles buried here, he said.
Bailey wasn’t allowed to use his own handheld scanner or a digital camera that didn’t use flash to make copies, and he balked at the 50 cents per page fee that the clerk’s office was charging for copies.
"There were several copies I needed, but I just couldn’t afford them at 50 cents per page," he said. "I just wanted to make my copies. I wasn’t intentionally trying to stir trouble up for her or anybody else."
He appealed to the Kentucky Attorney General’s Office, which ruled in his favor on Oct. 13 that Schwartz’s office was violating the intent of the Kentucky Open Records Act.
"Absent proof that the condition of the records applicant wished to reproduce using his own imaging equipment was poor, and/or that the equipment he proposed to use was likely to damage the records, Attorney General concludes that Whitley County Clerk subverted the intent of the open records act by denying applicant’s request to make his own copies and advising him that her fifty cent per page copying charge was ‘used toward the maintenance, supplies, and salaries of her office,’" Assistant Attorney General Amye L. Bensenhaver wrote in the open records decision.
"We find that the imposition of a fifty cent per page copying fee subverted the intent of the Open Records Act short of denial of inspection. The Attorney General rejected this argument when it was advanced by the County Clerks Association in 02-ORD-218, declaring that the widely accepted ten cents per page copying fee ‘strikes 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 nonprohibitive charge.’"
Bailey said in an interview Monday afternoon that he was glad Schwartz didn’t appeal the ruling and he was back in the Whitley County Clerk’s Office a couple of weeks ago, and used his handheld scanner without incident.
"Yeah, there wasn’t any problem using the scanner. I didn’t even ask them. I just went in and started using it. I kind of left it up to them to say anything," he said.
Bailey said there were two marriage licenses, which were too big for him to scan with his hand scanner, so he asked the deputy clerks if the copies were 10 cents each.
When he was told the copies were still 50 cents each, Bailey said he asked for a piece of paper to write out a request for 10-cent copies. After that the two deputy clerks conversed and let him have the two copies for 10 cents each.
Schwartz confirmed that Bailey was permitted to use his handheld scanner on that occasion, and received the two copies for 10 cents per page. She added that he is the only one, who has ever complained about the copying fee.
"It is no big deal," she said. "He isn’t a resident of Whitley County. I just feel like he is coming in here taking money away from the county, which provides recording equipment.
"You have to have equipment to record the documents for them to be accessible to him. We have never denied him access to the records that was not even an issue. It is not a lawsuit. It was an opinion.
"He’s had free access to anything. He made all the copies he wanted. He worked for over half a day, and made a lot more copies in my opinion than you would for family records. I still am convinced he is going to resell people’s information."
Schwartz said that she plans to post a policies and procedures notice in her deed recording room that will prohibit people from using handheld scanners and digital cameras to copy documents in her office.
"I’m going to place a policy and procedures notice in the recording room. No, they will not be able to," she said. "As long as I have policies and procedure in place and there is public notice, then I have been told it will not be an issue."
Schwartz said her office is still charging a fee of 50 cents per page for copies.
Allison Martin, Communications Director for Kentucky Attorney General Jack Conway’s Office, said that since the ruling wasn’t appealed within 30 days, it has the force of law.
"The Whitley County Clerk is in violation of the law by charging 50 cents per copy," Martin said.
She said simply posting a notice saying people aren’t allowed to use personal scanning devices or digital cameras to examine and copy records doesn’t make it legal to ban the use of the devices.
Martin said the ruling would apply to anyone and not just Bailey.
"That is the rule of law. It can be enforced by the circuit court there," she said.
Charging 50 cents per page or denying use of handheld scanners would be a civil issue, and not a criminal one, Martin noted.
Schwartz, who is president of the Kentucky County Clerk’s Association, said she decided not to appeal the ruling, and that the association will instead pursue changes in the law with the General Assembly.
The proposed change calls for 50 cent per page charge for any copy whether it is made with a camera, a photocopier or a handheld scanner.
"Any copy will be 50 cents. Any copy, whether it is by a Xerox copier, a handheld scanner, a digital camera, any copies will be 50 cents," she said.
Schwartz said she has no idea what the chances are of getting the legislation passed.
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Is there any new information on this? It appears to me that KRS 64.019 is in direct conflict with the open records act.
See KRS 61.874 Section 3
(3) 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.
In Nelson County they now charge 50 cents per page and site the new statute as reason for the charge and forbidding photography of docs (though none of the people in the office could site the actual KRS statute). It should be clear to anyone that 50 cents per page covers way more than just the costs involved in producing the copy. Any copy place charges between 5 – 15 cents per page. And they are in business to make $ off of the service.
Hey Kay! KRS 64.019 doesn’t ban anything, it just allows Clerks to do so. You still have to answerer to the AG regarding polices. It may not even be constitutional because you failed to use the court to relieve your problem, (Sec 60 KY Constitution). As far as your getting a .50 cent copy fee, wasn’t it included in an emergency act? Look at (Sec 59 KY Constitution). The Bill was part of some new tax laws, but, you want to use it to abridge the Open Records Act, which in no way was amended or repealed, look at (Section 51 KY Constitution). Take a close look at what the statute does allow. Are you going to try charging for hand written copies? Hmm… You may end up losing your precious .50 cents per page all together. I’ll not show my hand on that one right now. I’m scheduled to be laid off from my job by the end of this year. When I do I’ll be going back to school to finish my degree. I’ll have access to the law library there and you’ll be hearing from me after I research case law on this subject. You’ll hear from me in time. PS. I do owe you a thanks for giving me the inspiration to continue and finish my education.
I think it is a shame that a woman gets a payday from the tax payer and treat use like we are( no bodies ) if was to just say I was going to defy a ruling.i would go to jail and I know I look as good as she does guess she has a lot of friends ?
I think they should investigate Kay Swartz and all other clerks that are over charging and not allowing you to recieve the record. If you cant print out an index you should be able to take a picture of the record. County clerk in Laurel County has signs up but no KRS #### to back it up his request. They should charge no more than 10 cents a COPY STATE WIDE.
Obviously you work for Kay.
I am going to request the AG investigate Kay Swartz to see if she has used her position as president of the Kentucky County Clerks Association to hinder the public right to access open records. If she has done this it could be a criminal act. For example if she has encouraged other clerks to break the law or advised them to hinder persons wishing to obtain copies either by personal equipment or 10 cent copies she would be conspiring to deny the legal right to make those copies. She and any clerk who conspires to deny those rights could be committing felonies. She has already admitted to talking to other county clerks about the ruling. If that talk has included the possibility of denying the public from legally obtaining copies it could be illegal. She has openly admitted to conspiring to break the law so an investigation may be warranted. Acting alone she is not criminally negligent but using her power to involve others could be.
@Audrey… the AG ruled that the .50 price was too high. Did you not read the articles on this subject or are you a friend of the clerk? I would say it is the latter given the fact you are making a crazy assertion that Bailey wants her job… it kind of sounds exactly like the crazy crap the Clerk is saying e.g. I am going to ignore state law and saying that she is still not convinced Bailey is using the copies for commercial us…. If she were educated and informed she would know that government does not exist to “make money” it never has and anyone that believes this needs a good lesson in civics, I think. Honestly, I am not sure how anyone can assert that the Clerk is right given the ruling from the AG on this subject. However, this is Whitley County…. Of course, the fact that Clerk did not appeal the ruling means she knew she would lose, right? What is really sad is that she believes developing a policy and posting it negates the law, she is wrong. Public policy must be derived from law, every first year public administration student knows that. I wonder who told her that posting a policy would suffice? It seems it would be a county attorney, right?
I Think .50 cents is a cheap price for copies .most places charge at leat 1.00 a copy or more. Why is someone always trying to make trouble when it
is such a small charge . Maybe he wants her job. you san get all the copies you want on Ancestor.com but you pay almost 300 a year for membership. that is where I got mine and for that price.
ALL WE HAVE TO DO IS VOTE HER OUT SHE WORKS FOR US WE DONT WORK FOR HER
What the Heck is wrong with this CLERK!?!??
Is the copy money for coffee for the clerks office or something? WHy is this such an issue…10 cents is more than enough for a black and white copy…they pay roughly 1 cent for a piece of paper..and you cant fit more than 2 cents worth of ink on it…Give it up lady this isnt you clerks office…it belongs to the people…so CHILL OUT!!! Stop bossing people around and make things easier for people…what are you bored or something…get a dam hobby…. besides stuffing your face and ripping people off for copies. To say that this person was keeping money form the county??? Really does Whitley county run on copy funds?? Fire this Idiot!!!
Talk about arrogance, doesn’t the state pay the employees salaries? If she post’s a sign that prohibits scanners and digital camera’s someone will use an old fashioned film camera. The records are “Public Records” and she has no right to tell people that they can’t make copies using equipment of their own. What if someone comes in and draws the document or is an artist and is able to reproduce the document to an exact replica? Ben Franklin did it in the past before the invention of the printing press and things like that. Is she going to prohibit drawings as well or prevent someone from just writing down the information. If she does I think she needs to be voted out of office. There are other ways to make money besides gouging the public to view and record the records they have a right to record.
This is incredible. I made black and white copies at a print shop on Monday for 10 cents each. They also have equipment and salaries to pay and they sell copies for a profit. I think it would be a good time to have an audit of the Whitley County clerk’s office to find out why they so desperately need 50 cent copies to maintain their office.
They need to get rid of that clerk! Did someone tell her that SHE owns the Clerk’s office or what? Fifty cents a copy is a downright ripoff, and she should be ashamed of herself. It’s condesending people like her that make this world so messed up. You go Bailey…..and I think I will go there and make some 10 cent copies myself. Get a life, clerk lady!