Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The matter comes to the Attorney General on appeal from the actions of the Bullitt County Health Department relative to Eugene McGruder's open records request to inspect certain of the Department's records.
In his letter of appeal, Mr. McGruder stated that he had not received any response to his open records request from the Department.
After receipt of the letter of appeal, we sent a "Notification to Agency of Receipt of Open Records Appeal" and a copy of Mr. McGruder's letter to the Department. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Ned Fitzgibbons, Public Health Director, on behalf of the Department, provided this office with a response to the issues raised in the appeal.
In his response, Mr. Fitzgibbons stated that Mr. McGruder's original request failed to include a return fax number, a phone number, or an address. He also noted that there was no phone number or address listed for Mr. McGruder in the Shepherdsville phone book. Mr. Fitzgibbons further advised:
If Eugene McGruder wishes to inspect Bullitt County Health Department files regarding the Big Valley Sewage Treatment Lagoon, he may do so simply by contacting this agency during regular business hours with his request, and we will accommodate him within three working days.
If Eugene McGruder wishes to copy any pages of these files, the fee for that is 50 cents per page.
Mr. Fitzgibbons' letter indicates that a copy of his letter was faxed to Mr. McGruder at the fax number which Mr. McGruder had provided in his letter of appeal.
We are asked to determine if the actions of the Department were consistent with the Open Records Act. For the reasons that follow, we conclude that, with the exception of the amount the Department charges per copy for its records, its actions were in substantial compliance with the Act.
KRS 61.880(1) requires that a public agency respond, in writing, to an open records request within three business days after its receipt. As noted above, Mr. McGruder had left no return fax number, mailing address or telephone number where he could be reached. Thus, the Department was unable to respond to his request within three working days.
Under these circumstances, we conclude the Department's failure to timely respond within three days is mitigated by the failure of Mr. McGruder to provide a correct fax number, address, or telephone number to which it could timely respond, and find no procedural violation of the Open Records Act.
The Department has agreed to make its files available for Mr. McGruder's inspection and copying. If he has not already done so, he should contact the Department and make arrangements to inspect the records he seeks.
We do note, however, that the Department, in its letter to this office, stated that its fee for copying pages from agency records was 50 cents per page. In 98-ORD-168, we concluded that the agency's charge of fifty cents per page was not a reasonable copying charge within the meaning of KRS 61.874(3). If a public agency charges more than ten cents per page, it has the burden of establishing that this is not an excessive fee.
KRS 61.874(3) provides in relevant part:
The public agency may prescribe a reasonable fee for making copies of nonexempt public records requested for use for noncommercial purposes 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.
This provision has been interpreted to mean that the fee charged for copies should be based on the agency's actual expense, not including staff costs. The fee is thus limited to the proportionate 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 copying charge under the Open Records Act.
Unless the Department can establish that its actual cost for reproducing records is greater than ten cents per page, based on the cost of media and mechanical processing as defined in KRS 61.870(7) and (8), we would conclude that fifty cents per page is an excessive copying fee. The Department should recalculate its copying fee to conform to the requirements of KRS 61.874(3) and charge Mr. McGruder, should he want copies of agency records, accordingly.
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.