Request By:
Open Records Appeal
File Identification No. 90-384
Kelly Mark Easton, Esq.
Stites & Harbison
600 West Main Street
Louisville, Kentucky 40202J. Michael Brown
Director of Law
City of Louisville
Room 200, City Hall
Louisville, Kentucky 40202-2771
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Gerard R. Gerhard, Assistant Attorney General
By letter of February 27, 1990, Kelly Mark Easton, Esq., has appealed under Open Records provisions, regarding certain elements of the City's February 22, 1990 response to his February 20, 1990 request to inspect, and thereafter copy, certain records of the City of Louisville.
Kentucky Revised Statute (KRS) 61.880(2) provides, in substance and in part, that the Attorney General shall, upon request of one who has been denied inspection of a record held by a public agency, issue a written opinion stating whether the denying agency acted consistent with Open Records provisions (KRS 61.870 to 61.884).
FINDINGS IN BRIEF
The City of Louisville's actions were not consistent with Open Records provisions where, in contravention of KRS 61.872(1), it denied a requester the use of a film reader-printer and a cassette tape player, thereby failing to provide suitable facilities for inspection of its records. Additionally, the City failed to act consistent with Open Records provisions where, in contravention of KRS 61.874(2), it established a $ .25 per page fee for copies of records, when such fee was not based upon the actual cost, exclusive of personnel expenses, for making copies.
FACTUAL BACKGROUND
By request dated February 20, 1990, Kelly Mark Easton, Esq., asked to inspect and make copies of the following records of the City of Louisville, for the period January 1, 1970, to December 31, 1983:
1. Minutes of the Board of Aldermen;
2. Tapes of Board meetings;
3. Ordinances and resolutions considered or passed;
4. Notes, diaries, personal records or other materials generated by any person who was a member of the Board of Alderman during such period;
5. Any and all other documents or other records which in any way reference or reflect matters considered or action taken by the Board.
By response dated February 22, 1990, Winston King, on behalf of the City of Louisville, granted inspection regarding items 1-3, above, and denied inspection regarding items 4 and 5. Mr. King's response noted that records associated with items 1 and 3 were on 35mm film, and that the city did not have a reader-printer available for Mr. Easton's use. Further, Mr. King noted, the tapes associated with item 2 were on regular size cassette tapes, and the city did not have listening and copying equipment available for Mr. Easton's use in connection with such tapes. Mr. King indicated that while the city was required to allow inspection of the records in question, it was not required to make copies, but that if copies were desired, there would be a $ .25 per page charge.
In a March 1, 1990 letter to the Attorney General responding to Mr. Easton's appeal, you indicated, in substance, citing KRS 61.876(1), that allowing Mr. Easton's firm to utilize the single reader-printer of the City's Archive Department would disrupt essential functions of that office in responding to citizens' requests for copies. A similar assertion was made regarding a cassette player. Regarding the $ .25 per page charge for copying, you indicated the city believed such fee to be reasonable when compared with the fees charged by other local government agencies.
Mr. Easton's February 27, 1990 letter of appeal, his March 7, 1990 reply to your March 1, 1990 letter, and a telephone conversation with him indicate that he is concerned with only two issues: (1) The city's indication that the firm will not be permitted to utilize the Archive Department's sole reader-printer for 35mm film, and similarly will not be permitted to utilize the city's cassette player, and (2) the $ .25 per page copying charge. Accordingly, the opinion set forth below will address only those issues.
OPINION OF THE ATTORNEY GENERAL
KRS 61.872(1) provides, in part:
(1) All public records shall be open for inspection by any person, except as otherwise provided by KRS 61.870 to 61.884, and suitable facilities shall be made available by each public agency for the exercise of this right.
[Emphasis added.]
KRS 61.874 provides:
(1) Upon inspection, the applicant shall have the right to make abstracts of the public records and memoranda thereof, and to obtain copies of all written public records. When copies are requested, the custodian may require a written request and advance payment of the prescribed fee. If the applicant desires copies of public records other than written records, the custodian of such records shall permit the applicant to duplicate such records, however, the custodian may ensure that such duplication will not damage or alter the records.
(2) 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 denying use of the reader-printer and cassette recorder, the city of Louisville has failed to act consistent with KRS 61.870 to 61.884. Mr. Easton and his firm (and client) stand in no different shoes than any other citizen in requesting to inspect public records. KRS 61.872(1), supra, provides that suitable facilities shall be made available by each agency to permit inspection of public records. The City's blanket denial of access to the reader-printer and cassette player is inconsistent with such requirement. The City should arrange with Mr. Easton for scheduled use of the equipment in question so that Mr. Easton is provided reasonable access to suitable facilities to inspect public records, as presumably would be afforded any other requester. Such scheduled use may, of course, take into account reasonable access to the equipment by the city for its internal purposes as well as for access that must be afforded to other requesters.
The City's imposition of a $ .25 per page charge for copies of records, upon the belief that such fee is reasonable "when compared with fees charged by other local government agencies . . ." is also inconsistent with KRS 61.870 to 61.884, and in particular, KRS 61.874(2), supra. The City may base a copy fee only upon the actual cost of making copies. Accordingly, the City should determine such cost, and establish a fee consistent with that cost. Such fee may take into account the cost of the copier, paper, and related supplies, but may not include staff costs associated with making copies. Cf., OAG's 82-396; 84-91; 89-9.
The City of Louisville may have a right, pursuant to KRS 61.880(5), to appeal the findings of this opinion.
As required by statute, a copy of this opinion is being sent to Kelly Mark Easton, Esq.