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 Ohio County Clerk violated the Open Records Act in imposing a $ 1.50 charge for certified copies of official bonds executed by public officials which he furnished to Judy Goff in response to her September 11, 1996, open records request. For the reasons that follow, we find that the clerk did not violate the Act.
In September, 1996, Ms. Goff requested "certified copies of any and all records . . . relating to every constable that served in 3<rd> District of the Commonwealth of Kentucky; Ohio County; City of McHenry, Kentucky, for years from 1969 to the present year of 1996." In the same letter, Ms. Goff requested certified copies of records relating to sheriffs serving in Hartford, Kentucky, for that period. Ohio County Clerk Les Johnson responded by furnishing Ms. Goff with 206 certified copies of bonds executed by deputy sheriffs and constables from 1969 through 1996 at a cost of $ 309.00 (based on a charge of $ 1.50 per page). Upon payment of the $ 309.00 charge, Ms. Goff obtained the records.
On March 15, 1999, Ms. Goff initiated this appeal, arguing that she was overcharged for the records she received in 1996. Relying on the reasonable fee provisions of the Open Records Act, she asserted that she should properly have been charged only ten cents per page. In his response to her appeal, Mr. Johnson stated:
The only records that are maintained in my office for "every constable and every deputy sheriff" are the executed official bonds of each officer. KRS 64.012 provides that the fee of $ 2.00 per bond be charged for "any bond when ordered." It appears I made a mistake in charging Mrs. Goff only $ 1.50 per document when in fact KRS 64.012 directs that my office charge $ 2.00 per copy for bonds. The $ 2.00 fee enumerated in KRS 64.012 is for a copy of a bond whether it is certified or not.
In addition, Mr. Johnson questioned the timeliness of Ms. Goff's appeal, noting that some two years have elapsed since Ms. Goff's open records request was received. Although we do not agree with the Ohio County Clerk that Ms. Goff's appeal is barred by the passage of time, we concur with him in the view that the $ 1.50 charge which he assessed for certified copies of deputy sheriffs' and constables' bonds did not violate the reasonable fee provision of the Open Records Act. 1
KRS 61.874(3), formerly codified as KRS 61.874(2), provides:
The public agency may prescribe a reasonable fee for making copies of nonexempt public records requested for use for noncommercial purposes 2 which shall not exceed the actual cost of reproduction, including the costs of the media 3 and any mechanical processing 4 cost incurred by the public agency, but not including the cost of staff required.
Although the language of this provision has been slightly modified, the meaning and import are the same: The fee charged for copies should be based on the actual expense to the agency, not 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 is a reasonable reproduction charge under the Open Records Act.
This office has consistently taken the position that KRS 61.874 is a residual and general statute, and applies where there is no other applicable fee statute. OAG 80-209; OAG 84-91; OAG 87-80; OAG 89-9; OAG 92-79. If the county clerk furnishes copies of records specifically identified in the Uniform Fee List, which is found at KRS 64.012, and which authorizes county clerks to charge fixed fees for recording, filing, releasing, and certifying copies of public documents, the fees charged for copies may be based on that list. If the clerk furnishes copies of records not identified in the list, he may charge a reasonable fee that does not exceed the actually cost of reproduction, excluding staff costs. As we observed in OAG 87-80, at page 2, "KRS 64.012, pertaining to the fees of county clerks, prevails over KRS 61.874[(3)] only if there is a conflict between the two statutes."
On the facts presented, we find that there is a conflict between KRS 64.012 and KRS 61.874(3). KRS 64.012 authorizes the county clerk to charge two dollars for a "copy of any bond when ordered." Ms. Goff requested certified copies of the bonds of a number of public officials for a twenty-seven year period. Regardless of whether the copy is certified or uncertified, the county clerk was entitled to charge her two dollars for each copy. In error, he charged her only one dollar and fifty cents for each copy. This error notwithstanding, Mr. Johnson properly relied on KRS 64.012 which, in this case, prevails over KRS 61.874(3). See also 98-ORD-109 (holding that KRS 186.018(3), authorizing the Transportation Cabinet to charge three dollars for any driving history record, overrides KRS 61.874(3) since KRS 186.018(3) is a specific statute and KRS 61.874(3) is a residual or general statute only). We therefore affirm the Ohio County Clerk's actions.
In closing, we note that Ms. Goff's appeal is not time barred. Unlike KRS 61.846(2), relating to open meetings complaints and requiring the complaining party to initiate his appeal to the Attorney General within sixty days of receipt of the public agency's response to the party's complaint, the Open Records Act contains no statutory bar to the commencement of an appeal to the Attorney General. We therefore reject this argument as a basis for refusing to adjudicate an appeal under KRS 61.880(2).
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.
Footnotes
Footnotes
1 In her letter of appeal, Ms. Goff also questioned Mr. Johnson's decision to waive the copying charge for six copies of records she requested on February 3, 1999. In his February 5 response, Mr. Johnson indicated that he would reimburse his office from his personal funds for the cost of copying those records because her request implicated so few documents. Ms. Goff did not attach a copy of her February 3 request or a copy of Mr. Johnson's response. Accordingly, this issue is not ripe for review by the Attorney General. KRS 61.880(2) and 40 KAR 1:030, Section 1. We therefore do not comment on this issue.
2 Guidelines for establishing fees for nonexempt public records requested for commercial purposes are set forth at KRS 61.874(4)(a), (b), and (c).
3 Defined at KRS 61.870(7) as:
"Media" means the physical material in or on which records may be stored or represented, and which may include, but is not limited to paper, microform, disks, diskettes, optical disks, magnetic tapes, and cards[.]
4 Defined at KRS 61.870(8) as:
"Mechanical processing" means any operation or other procedure which is transacted on a machine, and which may include, but is not limited to a copier, computer, recorder or tape processor, or other automated device.