Request By:
Mr. Donald W. Blevins
Fayette County Clerk
Fayette County Courthouse
Lexington, Kentucky 40507
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Thomas R. Emerson, Assistant Attorney General
Mr. Kit Wagar has appealed to the Attorney General pursuant to KRS 61.880(4) the reasonableness of fees charged by your office for copies of documents he requested.
This office has not been furnished with a copy of the correspondence you received from Mr. Wagar concerning his request. We have only received a copy of your bill to Mr. Wagar's newspaper in the amount of $29.00 for "58 copies at 50 per page."
Mr. Wagar's letter of appeal to this office, dated January 13, 1989, maintains that the fee of 50 per page for copies is excessive. He has described the records in question as "various property and corporate records on file at the clerk's office."
OPINION OF THE ATTORNEY GENERAL
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.
KRS 64.012, a copy of which is enclosed, sets forth the fees a county clerk may receive for various services, including costs for producing copies of certain records. Neither party to this appeal has specifically identified the documents involved. However, if the county clerk was furnishing copies of documents included under KRS 64.012 then the specific fee schedule set forth in that statute would apply, rather than the general provisions of KRS 61.874(2) relative to copies.
In OAG 82-396, copy enclosed, we dealt with the fee provisions of KRS 61.874(2). While we could not say precisely what is a reasonable fee per page for copying records, we did say that on the basis of the facts presented in that particular situation 50 per page is not a reasonable fee. See also OAG 88-74, copy enclosed.
This office concluded in OAG 84-91, copy enclosed, that what is a reasonable fee depends upon 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.
If the public agency cannot demonstrate that the cost of a copy of a document 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 [KRS 61.874(2)] is a violation of the Open Records Act.
It is, therefore, the opinion of the Attorney General that if the county clerk cannot demonstrate that the records involved are included under the provisions of KRS 64.012, then the amount to be charged for copies of the records is governed by KRS 61.874(2). Unless the county clerk can demonstrate that it actually costs 50 per page to provide copies of documents, considering the applicable factors set forth in KRS 61.874(2), he 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 Mr. Kit Wagar. Either or both of the parties to this appeal has 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.