Request By:
Honorable Ava Crow
Division of Protection and Advocacy
Department of Public Advocacy
151 Elkhorn Court
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Joseph L. Famularo, Deputy Attorney General
This office is in receipt of your request for a review of OAG 84-268. For the reasons stated belwo, OAG 84-268 is withdrawn and this opinion substituted in its place.
To briefly review, you requested an opinion pursuant to KRS 61.880(4) regarding the reasonableness of fees charged by North Central Comprehensive Care Center, Inc. (NCCCC), for copying records. Your agency is statutorily required to represent persons with developmental disabilities, and to carry out this mandate you secure a release of information form signed by the client or his guardian and then utilize this form to request records from comprehensive care centers. The policy of NCCCC, however, is to charge $5.00 per page for copies of the initial one to five pages and $ .50 for each additional page thereafter.
In OAG 84-268 we held that NCCCC, as a private, nonprofit corporation, was not a public agency as defined by the Open Records law, KRS 61.870(1). The information we received from the Cabinet for Human Resources indicated that NCCCC was not funded by state or local authority. Due to these two findings, we determined that NCCCC was not a public agency.
However, it appears that our information as regards the funding of NCCCC was in error. Ordinarily private, nonprofit corporations are not considered public agencies but they do fall subject to the Open Records law if they derive at least 25% of their funds from state or local authority. It is apparent from NCCCC's statement of operations for March 1984 that NCCCC's revenues from state grants and contracts for services exceed the 25% minimum. (Their budget of $2,504,674.00 for 1984 revenue includes $1,863,303.00 from state grants and contracts for services, or approximately 74%.) As such, NCCCC is a public agency as defined by KRS 61.870(1) and is subject to the Open Records law.
Now that the threshhold question has been resolved, each of your specific questions in your original request will be addressed.
1. Are the charges as computed by NCCCC excessive and in violation of KRS 61.874, (2)?
KRS 61.874(2) provides that a public agency may prescribe a "reasonable fee" for copies of public records. The fee is not to exceed actual cost nor is the cost to include the cost of staff. It is our opinion that $5.00 for copies of the initial one to five pages is unreasonable. Actual cost is to be determined from the cost of operating the machine, which may be obtained from the manufacturer.
2. May a public agency have in effect policies which provide for free copies to some requestors and assess charges to others when providing the same information under the Open Records Act?
It is within the agency's discretion whether or not they impose a fee for copies. KRS 61.874(2). It appears that as long as full access is provided and the records are protected from damage and disorganization, there is no statutory prohibition against the agency waiving a fee for certain requestors.
3. If the costs as computed by North Central Comprehensive Care Center are excessive and this agency has paid these amounts in the past, may we off-set future charges by the amount overpaid in the past?
No statutory penalty is imposed on a public agency for imposition of an unreasonable fee for costs of copies of records. KRS 61.991(2). This office is only statutorily directed to issue opinions, upon request, stating whether an agency's actions were consistent with the provisions of the Open Records law. KRS 61.880(2). We have held that NCCCC was inconsistent in charging a $5.00 fee for the initial one to five pages, and that the fee must reflect the actual cost to NCCCC. However, KRS 61.880 does not provide this office with enforcement power. We still maintain that due to the difficulty in ascertaining the actual costs for past years, which would necessarily require assessment of depreciation as well as past paper, ink, and drum costs, and measuring these costs against the fee charged and number of copies made, it appears that the most equitable solution is to have the agency impose the statutorily required "reasonable fee" and have requestors from that time forward pay that amount. Any action for recovery of fees must be made to the circuit court. KRS 61.882.
4. If a public agency's rules and regulations do not conform to K.R.S. 61.870 to 61.884 as required by K.R.S. 61.876, do the rules and regulations promulgated by the Finance and Administration Cabinet then apply to that public agency until the agency brings its existing rules and regulations into conformance with the Open Records Act?
Again, there is no penalty for failure of the agency to adopt rules and regulations in accordance with KRS 61.876. OAG 78-340. However, the rules and regulations promulgated by the Finance and Administration Cabinet substitute for the agency's own rules and regulations presumably until the agency adopts its own. OAG 81-269. This presumption logically extends to until the agency adopts rules and regulations in conformance with KRS 61.876.
5. Should an agency's policies address the issue of (and are we entitled to) timely access to records?
Agency policies do not have to address the issue of timely access to records. KRS 61.880 provides that the agency must respond to a request for inspection within three days (except weekends and holidays) of receipt of the request. Even if the record is not immediately available, KRS 61.872(4) requires the agency to immediately notify the requestor and designate an inspection date not to exceed three days from agency receipt of the request. By implication, timely access would thus be any time less than three days from agency receipt of the request.
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It is therefore our position that NCCCC is a public agency subject to the Open Records law. Its revenue consists of substantially in excess of 25% funding from state grants and contracts for services. The $5.00 fee for copies of the initial one to five pages appears unreasonable and inconsistent with the actual cost mandate. OAG 84-268 is hereby withdrawn and this opinion is substituted.
This opinion is issued pursuant to KRS 61.880(4). A copy is being sent to North Central Comprehensive Care Center, Inc.