Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Breckinridge County Fiscal Court violated the Open Records Act in responding to Sue Schumacher's March 23, 1998, request for eleven categories of documents relating to the county's dog warden and dog pound generated in the period from January 1, 1992, to the present. For the reasons that follow, we find that the Fiscal Court's actions constituted a partial violation of the Act.
Ms. Schumacher, who is associated with The Fund for Animals Inc., submitted identical requests to Breckinridge County Judge/Executive Tom Moorman, Breckinridge County Fiscal Court Clerk Linda Norton, and Breckinridge County Dog Warden Robbie Green on March 23. Only Judge Moorman replied. On April 7, 1998, he notified Ms. Schumacher that the requested records would be made available to her for inspection during regular office hours. Alternatively, Judge Moorman agreed to mail her copies, noting that she would be assessed a copying charge and that the Fiscal Court "would require payment before mailing any such documents." Ms. Schumacher was orally advised that she would be required to submit a deposit before the records could be mailed, and that she would be charged 25 cents per copy. It is her position that "Judge Moormans's [sic] demand for deposit coupled with the exorbitant charge per copy constitutes a de facto denial of our request."
In a response to this office dated May 13, 1998, Judge Moorman elaborated on the Fiscal Court's position. He explained that Ms. Schumacher "anticipate[s] a maximum of 1,000 copies to be made in response to her request." Because duplication of these records would "require a sizable expenditure . . . [the Fiscal Court] awaited her response regarding this expenditure. " Judge Moorman reiterated that Ms. Schumacher may have access to any record the county possesses, acknowledging that "we are here to serve the public and attempt to do so in a manner that is fair to all of our taxpayers." He tendered a copy of the Breckinridge County Fiscal Court's "Policy and Procedure for Requesting Public Records, " asking that this office review the document and offer comments.
While we do not share Ms. Schumacher's view that the Breckinridge Fiscal Court's demand for prepayment of copying charges is improper, we believe the 25 cent copying charge which the Fiscal Court has adopted as part of its open records policy is excessive. KRS 61.874(3) authorizes public agencies to "prescribe a reasonable fee for making copies of nonexempt public records . . . which shall not exceed the actual cost of reproduction, including the costs of the media and any mechanical processing cost incurred by the public agency, but not including the cost of staff required." The agency may require advance payment of the prescribed copying charge, including postage. KRS 61.874(1) ("The custodian may require a written request and advance payment of the prescribed fee"); KRS 61.872(3)(b) ("If the person requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing" ); see also, 94-ORD-90 and 95-ORD-105. It is, in our view, entirely proper for the Breckinridge Fiscal Court to require prepayment of copying charges.
However, it is not proper for the Fiscal Court, or any other public agency, to impose a copying charge which exceeds its actual costs. At page 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.
In Friend v. Rees, Ky.App., 696 S.W.2d 325 (1985), the Kentucky Court of Appeals held that 10 cents per page is a reasonable copying charge under the Open Records Act. For this reason, the Attorney General has consistently held that unless an agency can substantiate that its actual cost for making copies is greater than 10 cents per page, any copying charge which exceeds this amount is excessive. OAG 80-421; OAG 82-396; OAG 84-91; OAG 87-80; OAG 89-9; OAG 91-193; OAG 91-200; 92-ORD-1491; 94-ORD-77. In OAG 90-50, this office specifically stated that a 25 cent copying charge was excessive when that fee was not based upon the agency's actual costs, exclusive of personnel costs. Unless the Breckinridge County Fiscal Court can demonstrate that its actual cost for reproducing records is greater than 10 cents per page, based on the cost of media and mechanical processing as defined in KRS 61.870(7) and (8), it must recalculate its copying fee to conform to the requirements of KRS 61.874.
We find no error in the failure of the Fiscal Court clerk and dog warden to respond to identical requests submitted to them on the same day. The Open Records Act contemplates the appointment of an official custodian of records "who is responsible for the maintenance, care and keeping of public records, " and through whom open records requests are processed. KRS 61.872(2); KRS 61.876(1)(b); KRS 61.880(1). The Act does not contemplate multiple responses to the same open records request. Judge Moorman properly acted under authority of the Breckinridge County Fiscal Court Clerk, who is identified as the Fiscal Court's official custodian of records in its statement of "Policy and Procedure," in responding to Ms. Schumacher's request.
We do not believe that this is the appropriate forum for review of the remainder of the Breckinridge County Fiscal Court's "Policy and Procedure." We do, however, refer the Fiscal Court to this office's decision in 94-ORD-101, a copy of which is enclosed, as it relates to the prescribed request form that the Fiscal Court has developed.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.