Request By:
In Re: James H. Pollitte/Mason County Fiscal Court
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 Mason County Fiscal Court, through the County Judge/Executive, Billy F. Ross, relative to Mr. James H. Pollitte's request for copies of various documents in its custody. Judge Ross originally provided Mr. Pollitte with copies of documents at a cost of 25 per page. In response to a request for additional documents, Judge Ross advised Mr. Pollitte that he would be charged 25 per page, and an additional 25 "secretarial fee," for a total of 50 per page. In addition, he indicated that the reproduction cost for full-sized maps would be $ 10.00.
Mr. Pollitte objected to what he perceived to be the imposition of unreasonable fees. In a letter dated September 25, 1992, he argued:
According to the KRS . . . and recent Attorney General Opinions, you may only charge 'net cost' per page of copy, which I would expect to cost only $ .5 to $ .10 at the most for xerox copies and maybe $ 2.00 for maps or plan sheets, typically 24" X 36".
Judge Ross promptly responded to these objections, stating:
Please be advised that our rules, as stated in my letter to you and dated September 24, reflect the actual cost of copying the approximately 330 pages you requested. As this office has only one secretarial employee, another person would have to be brought in or the employee paid overtime to do the substantial task of copying and collating this information.
The price for copying full-sized maps was set at such because this was the amount that you charged Mason County Fiscal Court for maps that you copied at our request.
In closing, he noted that Mr. Pollitte would be welcomed to review the records during regular office hours, but expressed the belief that complying with the Open Records Act "should [not] require substantial disruption of the governmental operations of this office."
We are asked to determine if the Mason County Fiscal Court is subverting the Open Records Act, short of denial, by imposing excessive fees. It is the opinion of this Office that the Fiscal Court's reproduction fees are excessive, to the extent that they are not based on the actual costs it incurs in making copies, and include a charge for the "cost of staff required." OAG 92-79, a copy of which is attached, is dispositive of this appeal. The Fiscal Court is expressly prohibited from assessing Mr. Pollitte any charge for time expended by its staff in duplicating the requested records. At p. 3 of OAG 82-396, this Office opined:
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 expense to the agency, such as the cost of maintaining copying equipment by purchase or rental and the supplies involved.
The Mason County Fiscal Court is also prohibited from assessing a $ 10.00 charge for full size maps, if the only basis for the charge is the fact that Mr. Pollitte previously charged the Fiscal Court $ 10.00 for maps that he copied at the Court's request. Unless the Fiscal Court can demonstrate that its actual cost for reproducing maps is $ 10.00 per map, based on the factors set forth in KRS 61.874(2), it must recalculate the fee imposed to conform to the statutory requirement.
The Mason County Fiscal Court may challenge this decision by initiating an action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.