Request By:
Patrick Watts, Esq.
General Counsel
Department of Insurance
P.O. Box 517
Frankfort, Kentucky 40602
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Thomas R. Emerson, Assistant Attorney General
James L. Thomerson, Esq., on behalf of his client, The Lexington Herald-Leader Company, has appealed to the Attorney General pursuant to KRS 61.880(4) the reasonableness of fees charged by your Department for copies of records requested by a reporter for The Herald-Leader.
Mr. Thomerson did not furnish copies of any correspondence between the newspaper reporter and your Department relative to any specific incident or situation. This office did, however, receive a letter from you, dated September 15, 1988, in which you advised "of a possible complaint concerning photocopying fees charged by the Department of Insurance." You said you did not witness the incident but were advised that Kit Wagar of The Herald-Leader complained that your photocopying fee of fifty cents per page is unreasonable pursuant to KRS 61.874(2).
You state that for many years KRS 304.4-010(18)(c) set a fee of fifty cents per page for a copy of any document on file with the Commissioner of Insurance. The 1988 session of the General Assembly amended the statute, deleted in part the provision about the fifty cents per page fee, and directed in part that the Commissioner by regulation prescribe the fees charged and the services for which fees shall be charged.
The Department of Insurance enacted a regulation (806 KAR 4:010E) to implement the statute. Section 1(20)(c) of that regulation contains the same provision that formerly was in the statute and it authorizes the fee of fifty cents per page for a copy of any document on file with the commissioner. You thus concluded that since the regulation contains the same fee that previously was set forth in the statute, the fee is reasonable.
Mr. Thomerson maintains that KRS 61.874(2) is controlling and it provides that the public agency may prescribe a reasonable fee for making copies which shall not exceed the actual cost of copying, not including the cost of staff required. He further states that the fee of fifty cents per page for copies is unreasonable and no agency or department may enact a regulation that is contrary to the provisions of a legislative enactment. He concludes by requesting that the Attorney General issue an opinion finding that the fifty cents per page fee charged by the Department of Insurance for copies of public records violates KRS 61.874(2) and that the maximum fee charged per page for copies by public agencies cannot exceed ten cents.
OPINION OF THE ATTORNEY GENERAL
While KRS 304.4-010 formerly authorized the Insurance Department to charge fifty cents per page for copies of records on file with the Department, the statute was amended, effective July 15, 1988, and that section, authorizing that specific sum, was deleted. The Insurance Commissioner under the statute as amended has the authority to enact regulations covering such topics as fees for copies of documents but no precise amount is now statutorily specified in the Insurance Code.
The Insurance Department, in enacting its Administrative Regulations, has incorported into those regulations the same fee schedule which had been set forth in the old statute. No public agency can enact regulations which conflict with or are inconsistent with enactments of the General Assembly. With the repeal of that section of KRS 304.4-010 dealing with the specific charge per page for a copy, the general provisions of the Open Records Act, dealing with costs for copies is applicable.
KRS 61.874(2) provides that, "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."
In OAG 80-209, copy enclosed, we said that KRS 61.874 (2) is a general statute that applies where there is no other applicable fee statute. If there is a specific statutory provision dealing with fees for copies then it would apply as the specific statute governs over a statute of general application. In connection with the cost provisions of KRS 61.874(2), we said the cost computation cannot include the office personnel cost. It can only relate to costs pertaining to the copier machine, paper and allied supplies.
In OAG 82-396, copy enclosed, we said that we could not say precisely what is a reasonable fee per page for copying records. On the basis of the facts presented in that particular situation, we concluded that fifty cents per page is not a reasonable fee.
This office concluded in OAG 84-91, copy enclosed, that what is a reasonable fee depends on the cost of the copier including the costs of operating the machine. If the public agency cannot determine such costs then the manufacturer of the machine may have to be consulted.
We said in OAG 87-80, copy enclosed, that if a public official cannot demonstrate that the cost of the record is covered by another specific statutory enactment then the provisions of KRS 61.874(2) govern as to the cost of obtaining a copy of that record. Any fee charged in excess of the actual cost is in violation of the Open Records Act.
KRS 61.880(2) and KRS 61.882(3) provide in part that
KRS 61.880(2) and KRS 61.882(3) provide in part that in any appeal of a denial under the Open Records Act the burden of proof in sustaining the decision shall rest with the public agency. There is absolutely no proof on the basis of the factors set forth in KRS 61.874(2) that are to be utilized in computing such costs that it costs the Department of Insurance fifty cents per page to produce copies of documents.
The appealing party in part has requested this office to set a maximum fee of ten cents per page as the amount that may be charged in all situations. Not only do we not know what it actually costs all public agencies to produce copies of documents, but under the directives set forth in KRS 61.880(2) and (4), we are limited to ruling as to the validity of what this particular public agency did in this particular fact situation.
It is, therefore, the opinion of the Attorney General that the Department of Insurance is bound by the provisions of KRS 61.874(2) in calculating the fees it charges for copies of documents where such costs are not specifically covered by other statutory enactments. There is no evidence that it costs the Department of Insurance fifty cents per page to produce copies of documents, considering the applicable factors set forth in KRS 61.874(2). Fees charged in excess of the actual costs are in violation of the Open Records Act and the public agency should recalculate the fees imposed to conform to the statutory requirements.
As required by statute a copy of this opinion is being sent to the appealing party, James L. Thomerson, Esq. Either or both of the parties to this appeal have the right to challenge the findings and conclusions set forth in the opinion in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882 .