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 issue presented in this appeal is whether the Kentucky State Penitentiary's charge of $ 4.24 to Thomas D. Craig, an inmate, for a copy of the audio tape of his "court call tape from 7-21-99, 0850 hrs., Tape 58, Side A, Beginning 100, End 169," was proper and consistent with the Open Record Act.
In its response to the letter of appeal, the Penitentiary indicated the charge of $ 4.24 was calculated as follows: $ 4.00 for the cost of the tape and the cost of staff time to set up the necessary copying equipment and dub the information and $ .24 cents for sales tax. The Penitentiary acknowledged in its response that, pursuant to this office's decision in 99-ORD-102, it was not authorized to charge sales tax for copies of records released under the Open Records Act and has refunded the $ .24 cents to Mr. Craig's inmate account. Thus, at issue in this appeal is the $ 4.00 charge for the cost of the tape and staff time used to make the copy.
The Penitentiary's position is that KRS 61.874(2)(b) provides that the minimum standard format is 8 1/2" x 11" paper and argues that the request for a copy of the tape constitutes a request for a record in a nonstandardized format. The Penitentiary further argues that, under the authority of KRS 61.874(3), it may provide the requested nonstandardized format and recover staff costs as well as any actual costs incurred.
For the reasons that follow, we conclude that the Penitentiary failed to establish that its actual cost for reproducing a copy of the tape was $ 4.00. Accordingly, the Penitentiary must recalculate its copying fee to conform to the requirements of KRS 61.874(3) and charge Mr. Craig accordingly.
KRS 61.874(2)(b), in relevant part provides:
The minimum standard format in paper form shall be defined as not less than 8 1/2 inches x 11 inches in at least one (1) color on white paper . . .
(Emphasis added.) Thus, the standard format for paper records is 8 1/2" x 11" paper. However, in the instant appeal, the record at issue is an audio tape.
KRS 61.870(2), in relevant part, defines "public records" as:
1. "Public record" means all books, papers, maps, photographs, cards, tapes , discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency.
(Emphasis added.) The Penitentiary recorded Mr. Craig's court call and the tape of that hearing constitutes a "public record," as defined by KRS 61.870(2). The agency is not being asked to reproduce a record in a nonstandardized format. It is being asked to reproduce an agency record in an existing format. Accordingly, the Penitentiary cannot charge for staff time in reproducing a copy of the tape. 92-ORD-1439.
KRS 61.874(3) provides in 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. Accordingly, the Penitentiary must recalculate its copying fee to conform to the requirements of KRS 61.874(3) and charge Mr. Craig its actual cost, not including the cost of staff, for reproducing a copy of the requested tape.
Finally, Mr. Craig requests that he be awarded his costs for pursuing his appeal to this office, to include the cost of his postage, and materials used. The Attorney General is not empowered to grant him monetary relief in an appeal initiated under KRS 61.880(1). 99-ORD-121.
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.