Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney
Open Records Decision
The question presented in this appeal is whether the Taylor County Fiscal Court subverted the intent of the Open Records Act, short of denial of inspection, by the imposition of excessive copying fees. For the reasons that follow, we conclude that to the extent that the fifty cents per page copying fee which the Fiscal Court imposed exceeds its actual costs the fee is clearly excessive and subverts the intent of the Act.
On August 6, 1999, Marvin Haynes submitted a written request to the Taylor County Fiscal Court for a copy of the 1999-2000 "original budget" of the Fiscal Court. That same day, Mr. Haynes received a copy of the twenty page budget, but was charged fifty cents per page. Convinced that this copying charge was excessive under the Open Records Act, Mr. Haynes initiated an appeal to the Attorney General. Upon notification of this appeal, Taylor County Judge/Executive Eddie Rogers responded that "the rate for copy work in other offices in the Taylor County Courthouse is .50 a copy," and noted that "rates varies [sic] from .25 up to $ 2.00 in other counties." We concur with Mr. Haynes in his view that the fifty cents per page copying charge is excessive.
KRS 61.874(3) authorizes public agencies to "prescribe a reasonable fee for making copies o nonexempt public records . . . which shall not exceed the actual cost of reproduction, including the costs of the media and any mechanical processing costs incurred by the publi agency, but not including the cost of staff required." The agency may require advance payment of the prescribed copying charge, including postage where appropriate. KRS 61.874(1). It is therefore proper for a public agency to require prepayment of a reasonable copying charge for nonexempt public records.
It is not, however, proper for a public agency, here the Taylor County Fiscal Court, to impose a copying charge which exceeds its actual costs. At page 3 of OAG 82-396, the Attorney General observed:
Since the cost of staff time required is excluded from the fee which may be charged for copies of public records, the fee charged for copies should be based on the actual expense to the agency, such as 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 copying charge under the Open Records Act. For this reason, the Attorney General has consistently held that unless an agency can substantiate that its actual cost for making copies is greater than ten cents per page, any copying charge which exceeds this amount is excessive. OAG 80-421; OAG 82-396; OAG 84-91; OAG 87-80; OAG 89-9; OAG 91-193; OAG 91-200; 92-ORD-1491; 94-ORD-77; 98-ORD-95. In OAG 90-50, this office specifically stated that a twenty-five cents copying charge was excessive when that fee was not based upon the agency's actual costs, exclusive of personnel costs. Clearly then, a fifty cents per page copying charge is unreasonable. Both the courts, and this office, have demonstrated their unwillingness to countenance higher copying charges. The fact that greater or equal copying charges are imposed by other counties does not justify the Fiscal Court's position, or alter our view. These counties are equally in error under the reasonable fee provision of the Open Records Act. Unless the Taylor County Fiscal Court 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 as defined in KRS 61.870(7) and (8), and excluding staff costs, it must recalculate its copying fee to conform to the requirements of KRS 61.874.
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.