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 University of Louisville subverted the intent of the Open Records Act short of denial of inspection by imposing excessive copying fees and failing to comply with KRS 61.876(2), relating to the posting of rules and regulations governing access to public records. For the reasons that follow, we find that the policies in effect, or being implemented, at the University conform to the Open Records Act and do not constitute a subversion of the intent of the Act.
In a complaint filed with this office on April 5, 1999, Ms. Hahn asserted that the University of Louisville is a "state administrative agency" as defined in 200 KAR 1:020 Section 2(1), and therefore subject to the more rigorous posting requirement found at 200 KAR 1:020 Section 6(2), and the ten cent copying fee found at 200 KAR 1:020 Section 3(1). Nevertheless, she noted, the University posts its rules and regulations in only one location, "at the University Archives Center . . . over a copier that only agency personnel utilize." Additionally, she commented, the University charges twenty-five cents per page for copies of public records. In support of these allegations, Ms. Hahn submitted a copy of the University's "Regulations Governing Inspection of the Public Records of the University of Louisville," posted on the Internet, which confirm that the copying fee on April 15, 1999, was twenty-five cents per page. As a proposed remedial measure, Ms. Hahn asked that the University "take immediate steps to prominently post the required notices in all offices accessible to the public," and "immediately reduce its [copying] fee amount and refund all fees charged to patrons that were in excess of the amount allowed by regulation. "
On April 19, 1999, the University responded to Ms. Hahn's complaint through its custodian of records, William J. Morison. Mr. Morison explained that 200 KAR 1:020 does not apply to the University of Louisville because it is not a state administrative agency as defined in KRS 12.010. Accordingly, he stated, the University complies with the posting requirement found at KRS 61.876(2), requiring "each public agency [to] display a copy of its rules and regulations pertaining to public records in a prominent location accessible to the public." Mr. Morison observed:
The university posts its rules at the main entrance to Grawemeyer Hall, which is U of L's administration building and the home of its major administrative offices, and in the University Archives and Records Center, which contains the office of the official custodian of university records. That posting is in the only public area of the archives, over the photocopier, which is used by the public, not just by "only agency personnel. " The university has also begun posting its rules on its world wide web site, and we're working on the links to enhance visibility to visitors to the U of L web pages.
In light of Ms. Hahn's complaint, Mr. Morison acknowledged that "it may be appropriate for the university to make a somewhat broader posting of its rules." He indicated that he would take steps to insure that the rules are posted in the Abell Administration Center at the U of L Health Sciences Center, the entrance of the offices of Human Resources, and in the lobby of Ekstrom Library which houses the University Archives and Records Center.
On the issue of the copying fee imposed by the University, Mr. Morison observed:
The university has charged what it cost the university to make the copies, staff time excepted, in accordance with KRS 61.874(3). For years my office's copier was not part of a larger group of copiers under a single vendor contract. The $ 0.25 per page charge reflected the cost of making copies. Earlier this year we reassessed the cost of making copies and began charging $ 0.10 per page. We are also changing our signage to reflect the new charge.
Mr. Morison indicated that the University would refund the fifteen cent overcharge to Ms. Hahn "if she will provide a list . . . showing the $ 0.25 fees." It is the opinion of this office that the University's policies relative to the imposition of copying fees, as well as the posting of rules and regulations governing access to public records, are substantially consistent with the Open Records Act, and do not subvert the intent of the Act.
Ms. Hahn's argument that the University of Louisville is a state administrative agency as defined in 200 KAR 1:020 Section 2(1) and KRS 12.010, and therefore subject to the specific regulations governing the posting of notices and copying fees found in the regulation, is fundamentally flawed. Although the University is denominated a "state institution" pursuant to KRS 164.810(3), it is not a "state administrative agency" within the meaning of 200 KAR 1:020 Section 2(1). That term is defined as:
every program cabinet, department and administrative body of the Kentucky State Government as defined by KRS 12.010, headed by, or whose membership is composed of, persons appointed by the Governor, and their component organizational subdivisions.
KRS 12.010, in turn, provides as follows:
(2) "Department" means that basic unit of administrative organization of state government, by whatever name called, designated by statute or by statutorily authorized executive action as a "department," such organization to be headed by a commissioner;
. . .
(8) "Administrative body" means any multi-member body in the executive branch of the state government, including but not limited to any board, council, commission, committee, authority or corporation, but does not include "branch," "section," "unit" or "office";
(9) "Program cabinet" means a group of departments, or departments and administrative bodies, designated by statute or statutorily authorized executive action as a "program cabinet. "
In construing KRS 12.010, Kentucky's courts have observed:
Chapter 12 of the statutes deals with the administrative organization of the state government. The departments and agencies governed by Chapter 12 are specified in KRS 12.020. They are integral parts of the executive branch of the state government created by the Constitution or statute to exercise executive and administrative functions on a state-at-large level.
Hogan v. A. C. Glasscock, Ky., 324 S.W.2d 815, 816 (1959).KRS 12.020 makes no reference to the University of Louisville, and neither the provisions of Chapter 12 nor the regulations found at 200 KAR 1:020 apply to it. Simply stated, Chapter 12 and 200 KAR 1:020 apply exclusively to specifically identified state level administrative agencies and officers. The University of Louisville is not one of them.
For this reason, the University is not subject to the more rigorous posting requirements, and the specific fee provision, found in 200 KAR 1:020. A state administrative agency governed by 200 KAR 1:020 Section 6(1) is required, as Ms. Hahn correctly notes, to "display a copy of this administrativeregulation [regarding inspection of public records] in each of its offices to which the general public has access." A public agency which is not governed by 200 KAR 1:020 Section 6(1), on the other hand, is required to "display a copy of [its] rules and regulations pertaining to public records in a prominent location accessible to the public." KRS 61.876(2). It is the latter provision which is controlling here. The University satisfies its minimal obligations under KRS 61.876(2) by posting a copy of its rules and regulations in a conspicuous location to which the public has access. This the University has done by displaying its rules and regulations in its administration building and in its Archives and Records Center. The Open Records Act does not require more.
Nevertheless, this office has recognized, on more than one occasion, that "the spirit of the Act mandates the broadest possible dissemination of an agency's rules and regulations. " 93-ORD-83; 94-ORD-4; 94-ORD-12. Accordingly, we encourage the University to expeditiously pursue its stated goal of posting it rules and regulations in three more campus locations.
Nor is the University restricted to the ten cents per page copying charge found at 200 KAR 1:020 Section 6(2), and applicable to "state administrative agencies, " if it can substantiate that its actual costs exceed that figure . KRS 61.874(3) 1, which is controlling as to public agencies' copying charges, provides:
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.
In his response, Mr. Morison indicates that the twenty-five cent copying fee previously charged by the University was based on its actual cost to reproduce a record on the copier in his office--a copier which "was not part of a larger group of copiers under a single vendor contract" and apparently cost more to operate. While this charge may or may not have been artificially high, the University has recently reevaluated this policy and adjusted its copying fee down to ten cents. Ten cents per page has been deemed by the courts and this office to constitute a reasonable copying fee under KRS 61.874, and not excessive if, in fact, it reflects the agency's actual costs, excluding the cost of staff required. Friend v. Rees, Ky.App., 696 S.W.2d 325 (1985); 98-ORD-95; 96-ORD-273; 92-ORD-1491. Again, we find no error in the University's current practice relative to copying fees.
In the interest of avoiding future open records disputes, we urge the University to expedite implementation of these new policies on the additional posting of rules and regulations and the imposition of the ten cents per page copying fee. The latter policy change should be reflected in a revised notice of rules and regulations as soon as possible.
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