Request By:
Mr. Donald L. Davidson
Greenup County Clerk
Post Office Box 686
Greenup, Kentucky 41144
Opinion
Opinion By: Chris Gorman, Attorney General; Amye B. Majors, Assistant Attorney General
As Co-Chairperson of an organization known as Greenup Residents Opposing Waste Landfill, Ms. Janet R. Brown has appealed to the Attorney General, pursuant to KRS 61.880, your office's imposition of a 50 cents per page reproduction charge for copies of public documents. That provision permits a person to appeal to the Attorney General if he or she feels that the intent of the Open Records Act is being subverted by an agency short of denial of inspection, including the imposition of excessive fees. Ms. Brown expresses the belief that the current charge is clearly excessive in view of the mandates of KRS 61.874(2).
OPINION OF THE ATTORNEY GENERAL
KRS 61.874(2) provides:
The public agency may prescribe a resonable 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 of the agency, including the cost of staff. OAG 80-421; OAG 82-396; OAG 84-91; OAG 88-74; OAG 89-9; OAG 91-98; OAG 91-200. The fee is thus limited to the cost of maintaining copying equipment by purchase or rental, and the supplies involved. In
Friend v. Rees, Ky.App., 696 S.W.2d 325 (1985), the Kentucky Court of Appeals held that ten cents per page was a reasonable reproduction fee under the Open Records Act.
KRS 61.874(2) is a statute of general application. Where, however, there is a specific statutory provision dealing with fees which may be imposed for copies, that statute governs. KRS 64.012, a copy of which is enclosed, sets forth the fees which a county clerk may receive for various services, including costs for producing copies of certain records. This Office has not been furnished with a copy of Ms. Brown's request letter, and we are therefore unable to determine the nature of the records requested. If the documents which your office reproduced for Ms. Brown are among those identified in KRS 64.012, then the specific fee schedule set forth in that statute applies, rather than the general provisions of KRS 61.874(2), relative to copying costs. OAG 87-80; OAG 89-9. If, however, the documents copied do not fall within the parameters of KRS 64.012, KRS 61.874(2) governs, and any fee charged in excess of the actual cost to the agency is a violation of the Open Records Act.
In OAG 82-396, we dealt with the fee provisions of KRS 61.874(2). There we held that on the basis of the facts presented, 50 cents per page was not a resonable fee. See also OAG 88-74; OAG 89-9. We therefore conclude that if you cannot demonstrate that the records requested are among those identified in KRS 64.012, and governed by that statute, the amount which may be charged for copies is governed by KRS 61.874(2). Unless you can then demonstrate that the cost to your office for providing copies is 50 cents per page, based on the factors set forth in KRS 61.874(2), you should recalculate the fees imposed to conform to the statutory requirements.
As required by statute, a copy of this opinion will be sent to Ms. Janet R. Brown. The Greenup County Clerk's office may challenge it by initiating proceedings for injunctive or declaratory relief within 30 days in the appropriate circuit court pursuant to KRS 61.880(5).