Request By:
IN RE: Barbara Carlin/City of Ryland Heights
Opinion
Opinion By: Chris Gorman, Attorney General; Amye B. Majors, Assistant Attorney General
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the actions of the City of Ryland Heights relative to Ms. Barbara Carlin's September 9, 1992, request to inspect certain records in the City's custody. Those records are identified as the tape recordings of the January 8, 1991, and the February 4, 1991, meetings of the City Council.
On behalf of the City, Mayor George G. Johnson responded to Ms. Carlin's request. In a letter dated September 11, 1992, he advised her that a copy of each tape had been made and was available to her at a cost of $ 5.00 per tape. In a follow-up letter dated September 17, 1992, Mayor Johnson elaborated:
You and your committee may listen to the tapes at the firehouse under the following conditions: Our City Clerk will be paid at the rate of $ 10.00 per hour and each fraction thereof; this will be paid in advance to the Mayor, it will then be given to the City Clerk for her personal time. The tapes in question are over three hours long, therefore, the payment will be $ 40.00. The City Clerk will thenadvise you of a time that is convenient for her for you and your committee to listen to the tapes.
This is also to advise you that no statement you may induce an appointed City official, or elected City official to sign is valid, or binding on the City. This applies to the statement that you induced the City Clerk to sign recently. 1
Should you continue to request statements prepared by you to be signed, the following will apply: You are to submit your statement to the Mayor, along with your check in the amount of $ 50.00 payable to the City Attorney. Your request will then be sent to our Attorney for consideration.
In her letter of appeal to this Office, Ms. Carlin expresses the view that she is entitled to listen to the tapes in advance of purchasing copies of them. Additionally, she asserts that $ 5.00 per tape for a 90 minute cassette tape is a clearly excessive reproduction charge. She asks that the Attorney General review the City's response to her request to determine if its actions violated the Open Records Act.
The issues presented in this appeal center on the statutory duties of the City of Ryland Heights when it receives a request for the tape recordings of city council meetings. Specifically, Ms. Carlin asks whether the City can require her to purchase copies of the tapes without affording her the opportunity to listen to them, and whether the City may assess a $ 5.00 charge for copying the tapes, in addition to a $ 10.00 per hour charge to compensate the City Clerk for time expended overseeing review and duplication of the tapes. For the reasons set forth below, we conclude that the City's actions relative to Ms. Carlin's right to listen to the tapes and the charges assessed for copying violate the Open Records Act.
In OAG 82-396, at p. 2, this Office recognized:
The Open Records Law provides that any person can inspect the original record and cannot be required only to purchase a copy of the original record. KRS 61.874 provides as follows:
(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 insure 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. 2
We believe that the cited opinion, a copy of which is attached, is dispositive of the present appeal. The City of Ryland Heights cannot require Ms. Carlin to purchase copies of the tapes. She may, at her option, purchase them after listening to them during the regular office hours of the City Clerk, and not at "a time that is convenient for [the clerk] ." 3 The City is directed to make arrangements for Ms. Carlin to review the tapes forthwith.
With respect to the second issue raised in this appeal, we find that the $ 5.00 reproduction charge for each tape is clearly excessive, and that the City is expressly prohibited from assessing Ms. Carlin any charge for time expended by the City Clerk in overseeing the review and duplication of the tapes. Again, we adopt the reasoning of OAG 82-396. At p. 3 of that opinion, we held:
Since the cost of staff time required is excluded from the fee which may be charged for copies of public records, the fee charged for copies should be based on the actual expenses to the agency, such as the cost of maintaining copying equipment by purchase or rental and the supplies involved.
OAG 82-396, at p. 3, citing OAG 80-421. This logic can be extended to the duplication of audio tapes.
In the event that Ms. Carlin elects to purchase copies of the tapes, the City may only assess her an amount equal to its actual costs incurred, i.e., the cost of the tape and the proportional cost of maintaining the copying equipment. In our view $ 5.00 per tape is not a reasonable fee. Given the language of KRS 61.874(2), which excludes the cost of staff required for oversight and duplication, we also conclude that the City may not impose a $ 10.00 per hour charge, or any other charge, for time expended by the City Clerk. The actual cost of duplicating the tapes may be assessed, but this should be agreed to with the requester prior to copies being made.
In closing, we note that the Mayor's remarks reflect a disregard for the duties imposed on the City by the Open Records Act. Neither he, nor the City Clerk, nor the City Attorney may require prepayment of a $ 50.00 charge for the "privilege" of submitting an open records request. The Mayor may wish to review the provisions of the Open Records Act, a copy of which is attached, to insure that future responses conform to the Act.
The City of Ryland Heights may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.
Footnotes
Footnotes
1 The document to which the Mayor refers is Ms. Carlin's September 9, 1992, request, which she asked the City Clerk to acknowledge receipt of by affixing her signature and the date.
2 These provisions underwent minor revision in the 1992 General Assembly. None of the revisions alter the conclusion we reached in OAG 82-396.
3 KRS 61.872(3) provides:
A person may inspect the public records:
(a) During the regular office hours of the public agency; or
(b) By receiving copies of the public records from the public agency through the mail. The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency.
(a) During the regular office hours of the public agency; or
(b) By receiving copies of the public records from the public agency through the mail. The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency.
(b) By receiving copies of the public records from the public agency through the mail. The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency.