Request By:
Ms. Joy Witt, R.R.A.
Assistant Director
Medical Records Department
University of Kentucky Hospital
800 Rose Street
Lexington, Kentucky 40536-0084
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Amye B. Majors, Assistant Attorney General
As attorney for Ms. Mamie Jewell Reynolds, Mr. Richard Clay has appealed to the Attorney General pursuant to KRS 61.880 your response to his request for "copies of all medical records generated following [Ms. Reynolds'] admission to the [Medical Center] on February 3, 1991, through her discharge, plus any followup visits." Mr. Clay agreed to assume responsibility for the reasonable expense of copies. A medical authorization for release of records, signed by Ms. Reynolds, was attached to the request.
In response to Mr. Clay's request, Ms. Sherry A. Drury, Supervisor, Correspondence/Legal Section, issued a letter in which she indicated that the records would be relesed at a cost of $ 153.00. She stated that the charge for reproduction of the records was $ 1.00 per page. She did not assert any exemption under KRS 61.878 or otherwise deny the request.
In a subsequent letter, Mr. Clay advised Ms. Drury that he believed the reproduction fee to be excessive. He noted that ten cents per page has been deemed a reasonable fee under the Open Records Act. You responded to this letter on April 18, 1991. You did not deny his request, but expressed the view that records which directly or indirectly identify a patient are confidential, and exempt from public inspection under the Act. You again stated that the charge for copying the entire record would be $ 153.00.
Mr. Clay has asked that we review your position with respect to the reproduction fee to determine if it is consistent with the Open Records Act. For the reasons set forth below, we conclude that it is not.
OPINION OF THE ATTORNEY GENERAL
It is the opinion of the Attorney General that the $ 1.00 per page reproduction fee charged by the University of Kentucky Medical Center is clearly excessive. While we have previously opined that an agency is not obligated to provide copies of records until the records have been inspected, you have not raised any objection to Mr. Clay's request for copies. OAG 76-375; OAG 86-24; OAG 86-80; OAG 87-68; OAG 89-53. Nor have you refused to release the requested records, although you make a vague reference to the exclusion of records identifying patients under the Act. Instead, you request payment of a $ 153.00 reproduction fee as a condition to release of the records.
This Office has consistently held that $ 1.00 per page for a copy of a public record is an unreasonable fee. OAG 80-421; OAG 82-396; OAG 84-91; OAG 88-74; 90G 89-9. KRS 61.874(2) provides:
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.
This provision has been interpreted to mean that the fee charged for copies should be based on the actual expense to the agency, excluding the cost of staff. The fee is thus limited to the cost of maintaining copying equipment by purchase or rental, and the supplies involved. OAG 80-421. In
Friend v. Rees, Ky.App., 696 S.W.2d 325, 326 (1985), the Kentucky Court of Appeals held that ten cents per page was a reasonable reproduction fee under the Open Records Act.
If the public agency cannot demonstrate that the cost of a copy is covered by another specific statutory enactment, the provisions of KRS 61.874(2) govern. Any fee charged in excess of the actual cost violates the Open Records Act.
The University of Kentucky Medical Center is clearly a public agency. OAG 83-60; cf. OAG 82-216. It is therefore subject to the Open Records Act. Under that Act, if an agency denies a request to inspect documents in its possession, it must:
. . . include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld.
KRS 61.880(1). You did not cite an exception, but indicated your willingness to release the records upon receipt of the $ 153.00 reproduction fee. This demand was inconsistent with the Open Records Act. Pursuant to KRS 61.874(2), the University of Kentucky Medical Center must calculate a reasonable reproduction fee not to exceed its actual costs, not including staff time required for copying.
As required by statute, a copy of this opinion will be sent to Mr. Richard Clay. The Medical Center has the right to challenge it, and may institute proceedings for injunctive or declaratory relief within 30 days in the appropriate circuit court. KRS 61.880(5).