Should a photo or scanned copy of a public record made by an open records requester with his or her personal device be treated as a copy for which the agency can recover a copying fee?
The answer seems obvious. There is no "actual cost" to the agency when the requester take a photo with a smartphone or uses a scanning app to scan the record.
But the answer is less than obvious in Vermont where a feud recently erupted that pits the secretary of state and governor against the attorney general.
Vermont Attorney General T.J. Donovan asserts that public agencies should be able to recover the costs associated with retrieval, review, and redaction of public records even if the requester creates his or her own copy of the record. He bases that position on a recent Vermont Supreme Court opinion recognizing that a requester must be permitted to inspect a redacted record at no cost but must pay for a copy.
https://law.justia.com/cases/vermont/supreme-court/2019/2018-342.html
The case involved a request to inspect bodycam footage that required redaction to protect the identities of juveniles. The cost of redaction, the Vermont Supreme Court concluded, must be absorbed by the agency.
In what was considered a "major win for government transparency advocates," the Vermont Supreme Court ruled in September that inspection is not copying and the public agency therefore could not recover the costs associated with redaction from those exercising the right to inspect.
The Vermont attorney general responded by imposing a policy barring open records requesters from using their personal devices to photocopy or scan public records of *his* agency within a month of the Court's opinion.
Vermont Governor Phil Scott and Secretary of State Jim Condos vigorously dispute Donovan's interpretation of the law. They maintain that the Vermont Supreme Court opinion precludes agencies from charging for inspection *and* copying if the requester makes his or her own copies during inspection "without the use of staff resources and no actual expenses are incurred." The governor has issued a directive to Vermont's state agencies to take a "less restrictive approach," and the secretary of state issued a public denunciation of the attorney general's position.
Vermont Secretary of State Condos condemned the attorney general's position, declaring that it "is not only wrong, it reduces transparency, and places undue burdens on Vermonters." He asked, "If a member of the public snaps a photo of a record their inspecting with a smartphone, what's the cost to the agency? There is none."
Once again, Kentucky's laws provide definitive answers to these questions. We are, for once, spared debate on an issue that might otherwise polarize *our* elected officials.
Only Kentucky's county clerks are authorized to "establish procedures for obtaining copies of records under [their] control, including restricting the use of devices including but not limited to scanners, cameras, computers, personal copiers, or other devices that may be used by an individual seeking a copy of a document maintained by the clerk, but a clerk shall not restrict the ability of any person to make handwritten notes regarding documents and records maintained by the clerk."
https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=40089
The same 2012 law, authorizes county clerks to collect "a per-page fee, not to exceed fifty cents ($0.50) per page, for providing legal size or smaller paper copies of records or documents maintained by the clerk."
No other public agency or official may restrict the use of personal devices to make copies or impose a copying fee that exceeds its "actual costs," *excluding* staff costs.
Based on an early opinion of the Kentucky Supreme Court, a regulation applicable to state agencies, and long years of policy and practice, that fee is fixed at ten cents per page. No public agency can charge a requester to inspect public records, and all costs associated with redaction of public records for inspection *or* copying must be absorbed by the public agency.
https://ag.ky.gov/orom/2017/17ORD244.doc
https://ag.ky.gov/orom/2018/18ORD018.doc
The Kentucky attorney general has taken the analysis a step further in recent months, declaring that if public records are maintained in electronic format, and the requester asks that the records be transmitted to him or her electronically (as opposed to being mailed to him or her on a thumb drive or disc), and electronic transmission is feasible, public agencies can assess no copying fees inasmuch as no actual costs are incurred.
https://ag.ky.gov/orom/2019/19ORD118.doc
Public agencies may protest, but electronic transmission of public records relieves them of a at least one duty under the law â the duty to make and mail hard copies — and, accordingly, lightens their load. Happily, it gives greater import to the notion that "*free* and open examination of public records is in the public interest."
