Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter comes to the Attorney General on appeal from the City of Cave City's response to Randall Decker's open records request for a written statement as to why his application for an amusement license had been denied by the City Council.
Responding on behalf of the City, Pamela Hunt, City Clerk/Treasurer, advised Mr. Decker that the only records that the City had relating to his request were the actual record of the minutes from those meetings and hearings. She stated that copies of those records would be made available upon prepayment of $ 3.25, a charge of 25 cents per page.
After receipt of the letter of appeal and as authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Bobby H. Richardson, attorney for the City, provided this office with a response to the issues raised in the appeal. In his response, Mr. Richardson explained that Mr. Decker did not request a written statement that is in the City's records, but requested a written statement outlining why he was denied an amusement license. He reiterated Ms. Hunt's response that no such statement exists and that he had been supplied with a copies of the minutes of the public meetings held by the City Council at the conclusion of which his applications had been denied.
We are asked to determine if City's actions relative to Mr. Decker's request constitute a violation of the Open Records Act. For the reasons that follow, we conclude that City's response, with exception as to the amount charged for each copy of its public records, was consistent with the Act.
This office has consistently recognized that a request for information, as opposed to a request for specific documents, need not be honored under the Open Records Act OAG 90-100. There we held that to the extent that the request asked questions, it was a request for information as distinguished from a request to inspect reasonably identified documents.
Moreover, in expanding on this notion that open records provisions address only inspection of records, we have held that the Act does not require public agencies or officials to provide or compile specific information to conform to the parameters of a specific request. 96-ORD-12. In its response, the City advised that it had no documents which reflected the specific information requested by Mr. Decker, other than the minutes of the City Council meetings in which his applications for an amusement license were denied. Copies of these minutes were provided Mr. Decker. The City is not required to prepare a separate record or statement explaining the denial of the license, under the Open Records Act. Accordingly, it is the decision of this office that City properly denied the request for a written statement and its response did not violate the Act.
However, we do find that unless the City can produce evidence substantiating that twenty-five cents per page represents its actual costs, excluding staff time, it is excessive and violates 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. 94-ORD-43.
KRS 61.874(3) 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. If a public agency is asked to produce a record in a nonstandardized format, or to tailor the format to meet the request of an individual or a group, the public agency may at its discretion provide the requested format and recover staff costs as well as any actual costs incurred.
Pursuant to this statute, 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; OAG 91-193; 94-ORD-77.
In OAG 90-50, this office held that a 25 cents per page copying charge was excessive when the fee was not based on the agency's actual cost, exclusive of personnel costs. In Friend v. Rees , above, the Kentucky Court of Appeals held that ten cents per page was a reasonable copying charge under the Open Records Act. Unless the City can demonstrate that its actual cost for reproducing records is greater than ten cents per page, based on the cost of media and mechanical processing (meaning, for example, the paper and copying machine costs), it must recalculate its copying fee to conform to the requirements of KRS 61.874, and charge Mr. Decker 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.