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 Transportation Cabinet complied with the provisions of the Open Records Act in responding to Randy L. Turner's May 12, 1998, request for a copy of his driving history record for the period from 1989 to 1998. For the reasons that follow, we find that the Cabinet properly responded to his request.
In his appeal, Mr. Turner challenged both the failure of the Cabinet to furnish him with driving history records for the nine year period, and the $ 3.00 copying charge which the Cabinet imposed. In a letter to this office dated June 9, 1998, J. Todd Shipp, assistant general counsel for the Cabinet, explained that pursuant to KRS 186.018, the Cabinet maintains these records for five years only. Mr. Shipp affirmatively stated that the Cabinet has "no records beyond five years." Moreover, he noted, KRS 186.018 establishes the $ 3.00 copying charge for driving history records, and the Cabinet is required to assess this charge. We believe that the Cabinet's legal position is sound.
The retention period for driving history records is set by statute. KRS 186.018(1) provides that the Cabinet "shall destroy, and shall not maintain records of moving traffic convictions that are more than five (5) years old." The Cabinet has now furnished Mr. Turner with a copy of his current driving history record, and advised him that no other record exists which satisfies his response. The Open Records Act does not require more. See, e.g., OAG 90-26, p.4 (holding that "if a record of which inspection is sought does not exist, the agency should specifically so indicate").
Mr. Turner next challenges the Transportation Cabinet's $ 3.00 copying charge for driving history records, arguing that under KRS 61.874(3), that charge is clearly excessive. KRS 61.874(3) provides that a public agency may 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." 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 copying charge under the Open Records Act.
KRS 61.874(3) is a statute of general application. Where, however, there is a specific statutory provision dealing with fees which may be imposed for copies, the specific statute governs. KRS 186.018(3) states that the Transportation Cabinet "shall charge a fee of three dollars ($ 3) for any driving history record...." This provision overrides the general fee provision of the Open Records Act. See also, OAG 92-79 (holding that KRS 64.012, establishing fees for copies furnished by the county clerk, overrides KRS 61.874(3) when certain records in the custody of the county clerk are requested). We find no error in the Transportation Cabinet's $ 3.00 copying charge.
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.