Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
This appeal originated in an open records request submitted by W. Claiborne Jacobs to the Fayette County Public Schools (FCPS) for copies of various records maintained by the FCPS. Copies of the requested records, which also included computer printouts, were furnished to Mr. Jacobs at a cost of ten cents per page. Mr. Jacobs objects to this copying charge, which he believes to be excessive. In his letter of appeal, Mr. Jacobs stated that he checked with two commercial photocopy companies and found that they charged a lower fee for copies; one charging $ .07 cents a copy and the other $ .08 cents and argues that, based upon the charges of these private companies, he believes the FCPS fee of $ .10 per copy exceeds what is allowed by law.
After receipt of Mr. Jacobs's letter of appeal, Virginia W. Gregg, General Counsel to the Board of Education of Fayette County, provided this office with a response, on behalf of the FCPS, to the issue raised in this appeal. In her response, Ms. Gregg stated, in relevant part:
The sole issue of this appeal is whether the long-standing policy of FCPS in charging $ .10 per page for copies is improper under the Open Records Act. This $ .10 fee has been the amount charged by FCPS for over ten years. It is a reasonable fee and is based upon the actual cost of reproduction and does not include the cost of staff required to process the request. The fact that Mr. Jacobs may be able to find a private photocopy company with cheaper rates is irrelevant. Marketing and competition could arguably result in a for-profit company charging an amount for specific items that is below actual cost, most likely offset with increased prices for other items. The volume of copies made by a company that is a "photocopy" company may also lessen the prices charged. During the many discussions that the staff at FCPS has had with Mr. Jacobs, these points have been discussed. In specific response to Mr. Jacobs' concerns, other governmental agencies charges have been examined. It has been confirmed that most public agencies in the Fayette County area charge at least $ .10 per copy.
(Emphasis in original.)
We are asked to determine if FCPS violated the Open Records Act by charging Mr. Jacobs ten cents per page for copies of public records.
KRS 61.880(4) provides:
If a person feels the intent of KRS 61.870 to 61.884 is being subverted by an agency short of denial of inspection, including but not limited to the imposition of excessive fees or the misdirection of the applicant, the person may complain in writing to the Attorney General, and the complaint shall be subject to the same adjudicatory process as if the record had been denied.
[Emphasis added.]
The language of the open records statutes does not specifically require a public agency to justify its costs to a person requesting copies of public records. However, under KRS 61.880(4), if a person has made an open records request for copies of certain public records and he believes that the public agency's costs for the reproduction of the records are unjustified or that the costs charged are excessive, he may appeal to this office for a review as to whether the costs are reasonable.
What particular private commercial photocopy companies charge per copy or what other public agencies may charge per copy is not controlling in this instance. Under the directives set forth in KRS 61.880(2) and (4), we are limited to ruling as to the validity of what this particular public agency (FCPS) did in this particular fact situation. OAG 88-74.
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.
Providing copies of nonexempt public records is not a "sale" of the records. It is a compliance with the legislative mandate to make public records open and available for inspection and at a reasonable cost. 98-ORD-88.
FCPS states that its fee of ten cents a copy is based upon its actual cost and its long standing policy of over ten years of charging such a fee. In Friend v. Rees , Ky. App., 696 S., W.2d 325 (1985), the Court of Appeals held that ten cents a copy was a reasonable fee for reproducing standard hard copy records. The Attorney General has adopted this position of the court in a long line of decisions. See, e.g., OAGs 88-74, 89-9, 91-98, 91-210, 92-79, 92-ORD-1491, 93-ORD-44, 94-ORD-43, 95-ORD-82, 96-ORD-3, 98-ORD-88.
The Finance and Administration Cabinet, pursuant to KRS 61.876(3), has promulgated an administrative regulation, 200 KAR 1:020, which establishes the general rules to be followed by all state administrative agencies in affording public access to their public records. 200 KAR 1:020, Section 3 (1), in relevant part, provides:
Copies of any written material shall be furnished, on request, to any person requesting them, on payment of fee of ten (10) cents a page for each record copies ; copies of photographs, maps and other nonwritten material, and records stored in computer files or libraries, shall be furnished to any person requesting them on payment of a fee equal to the actual cost to the agency of producing the copies.
(Emphasis added.)
In 96-ORD-75, this office concluded that a charge of ten cents a page was not excessive, stating:
As to the issue of the cost per copy, a public agency may only assess a reasonable copying charge for public records not to exceed its actual costs, excluding staff time required. This office has long recognized that unless an agency can document that its actual costs are greater than ten cents per page, both the courts and this office are unwilling to countenance higher copying charges. See, e.g., Friend v. Rees, Ky. App., 696 S.W.2d 325 (1985); OAG 80-421; 94-ORD-77; 95-ORD-110. In Friend v. Rees, supra, the Kentucky Court of Appeals held that ten cents per page was a reasonable copying charge under the Open Records Act. We believe that this rule still applies when a request is made for copies of public records, and the requester's purpose is a noncommercial one. Accordingly, we conclude that the charge of ten cents per page was not excessive as such has been recognized as a reasonable copying charge for public records.
In our view, the courts, state government, and the many decisions of this office have recognized and established a bright line standard of a ten cents per page fee for copies of public records as a reasonable fee under the Open Records Act. This threshold standard fee establishes for public agencies a court approved reasonable fee for copies of public records and dispenses with the necessity of requiring the agencies to attempt to estimate costs involved in photocopying records. This would particularly be the case in agencies, such as FCPS, which have a large number of copiers in many different buildings.
Absent further direction from the courts or the legislature, and in light of this long standing recognition by the courts, this office, state government, and other public agencies, that ten cents a page is a reasonable fee for copies of public records, we are reluctant to change this bright line threshold standard. If changes in the law are to be made, they should be made by the legislature and if subtle interpretations are to be made, they should be made by the courts. OAG 80-54. This appeal suggests the need for the General Assembly to address the issue of actual cost, and establish a standard fee, by legislative action.
We have done a random sampling of other states that have taken this course of action. For example, Florida, Rhode Island, and Washington provide that the cost per page shall not exceed fifteen cents ($ .15) per page. Florida Statutes Annotated 119.07(1)(a), Title 38 General Laws of Rhode Island § 38-2-4, Revised Code of Washington § 42.17.300, respectively; Connecticut, Georgia, Kansas, and New York provide that the cost shall not exceed twenty-five cents ($ .25) per page. Connecticut General Statutes Annotated § 1-1(a), Georgia Code Annotated § 50-18-71(c), Kansas Statutes Annotated § 45-219(c)(5), and New York State Consolidated Laws - Public Officers § 87.1(b) iii, respectively.
As noted in 96-ORD-75, when public agencies have charged more than ten cents per page, we have required that agencies document their actual costs. In the absent of such substantiation, they are directed to recalculate their charges at ten cents per copy.
As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, we requested the FCPS to provide documentation as to its costs to reproduce records in response to an open records request. On behalf of the FCPS, Ms. Gregg provided this office with a response, stating:
The District currently owns and leases photocopiers with a average cost of $ .023 per copy (this includes the machine, service, toner, and paper). The remaining $ .077 covers the general overhead costs (utilities, space, etc.) for placement of the copiers within our buildings. With a district the size of Fayette County, it is difficult to break this down even further.
These calculations of the average cost per copy generally substantiate that the school system's costs are equivalent to ten cents per page. Further, they highlight the practical difficulties that agencies face in trying to estimate the cost of photocopying and the corresponding difficulties this agency would have in determining whether the estimate reflects the agencies's actual cost. We have little doubt that the floodgates would be opened to open records appeals premised on the reasonableness of the ten cent copying charge. If a standard, other than ten cents per page, is to be adopted, it must be done by the courts or the legislature. To require public agencies to substantiate in each and every case that the ten cent charge reflects its actual charge would impose an intolerable burden on them. "As in all matters not specifically addressed by the Open Records Act, we apply a reasonableness standard." 98-ORD-69, p. 6.
Accordingly, it is the decision of this office that FCPS's fee of $ .10 per copy is not excessive and is consistent with the standard of reasonableness as construed by the courts, the Finance and Administration Cabinet, and prior opinions of this office.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.