Request By:
Mr. Haden B. Arnett
Magoffin County Clerk
Salyersville, Kentucky 41465
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
Kimberly K. Greene, Esq., on behalf of her clients, The Courier-Journal newspaper and Mr. Richard Whitt, a staff writer for that newspaper, has appealed to the Attorney General pursuant to KRS 61.880(4) the reasonableness of fees charged by your office for copies of public records obtained by Mr. Whitt.
This office has not been furnished with a copy of Mr. Whitt's letter of request to your office but pursuant to his request you provided him with copies of various documents in your office pertaining to elections. Your office furnished him with 93 pages of documents and charged him $93.00 or $1.00 per page for the copies.
In a letter to you, dated July 1, 1987, Ms. Greene maintained that your charges were excessive and in violation of KRS 61.874(2), a section of Kentucky's Open Records Act dealing with the fees which a public agency may charge for making copies of public records. You have obviously refused to modify the position taken previously by your office and Ms. Greene has filed an appeal with this office concerning the matter.
In her letter of appeal to the Attorney General, which was received November 24, 1987, Ms. Greene again maintains that your charges for copies of public records are excessive and in violation of KRS 61.874(2). She cites several prior opinions of this office in support of her position.
OPINION OF THE ATTORNEY GENERAL
Kentucky's Open Records Law (KRS 61.870 to KRS 61.884) was enacted by the 1976 session of the General Assembly and became effective June 19, 1976. KRS 61.874(2), a section of the Open Records Act dealing with the fees which may be charged by public agencies for copies of public records, states, "The public agency may prescribe a reasonable fee for making copies of public records which shall not exceed the actual cost thereof not including the cost of staff required."
KRS 64.012 sets forth the fees which may be charged for various services by a county clerk. As far as we can determine from the material made available, none of the records and services with which Ms. Greene is concerned are covered by that statute. In OAG 80-209, copy enclosed, at page two, we said in part as follows:
As we said, KRS 61.874(2) is a residual and general statute and applies where there is no other applicable fee statute. Where the county clerk furnishes copies of the clerk's records, KRS 64.012 will apply if any of the language on that schedule is applicable to the particular clerk's record. For example, the fee for a copy of any bond is $1.50 under KRS 64.012, because the language in that schedule says so. But there is no mention in KRS 64.012 of the fee for a copy of a marriage license. In the latter situation, the clerk could charge a reasonable fee, provided the fee does not exceed the actual cost, as set forth in KRS 61.874(2). . . .
In OAG 84-91, copy enclosed, we noted that the "reasonable fee" provision of KRS 61.874(2) applies to county clerks only when there is no other applicable fee statute. KRS 64.012, pertaining to the fees of county clerks, prevails over KRS 61.874(2) only if there is a conflict between the two statutes. Where KRS 64.012 is not applicable the fees charged by a county clerk are governed by KRS 61.874(2) and the cost computation cannot include the officer personnel cost. The fee or cost imposed by the county clerk can only relate to the cost in terms of the copier machine, paper and allied supplies. If need be, the public agency can consult the manufacturer of the copier to determine the cost factor involved. See OAG 83-42, copy enclosed, at page three.
By way of several examples, we concluded in OAG 84-300, copy enclosed, at page two, that a comprehensive care center could not legally charge $5.00 for copies of the initial five pages of a document as such is not a reasonable fee. This office said in OAG 82-396, copy enclosed, at page three, that under the circumstances involved a fee of fifty cents per page was unreasonable. In OAG 80-421, copy enclosed, at page three we were of the opinion that a fee of $1.00 per page for a copy of a public record was unreasonable.
It is, therefore, the opinion of the Attorney General that if the county clerk's office cannot demonstrate that the fee list set forth in KRS 64.012 is applicable to the documents requested by the newspaper reporter, then KRS 61.874(2) applies relative to the costs that a public agency may charge for copies of documents. Under that statute the fee imposed cannot exceed the actual cost of making the copy, not including the cost of staff required. Any fee charged in excess of such actual cost is in violation of the Open Records Act and your office should recalculate the fees charged to conform to the statutory requirements.
As required by statute a copy of this opinion is being sent to the appealing party, Kimberly K. Greene, Esq. If you or the public agency decide not to conform or comply with the conclusions set forth in this opinion you should exercise your right to challenge the opinion in the appropriate circuit court pursuant to KRS 61.880(5).