Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is the reasonableness of the copying fee charged by Morehead State University for copies of certain of its records to be provided to Mbibong Nchami in response to his open records requests.
By letter dated September 3, 1999, the University requested Mr. Nchami provide reimbursement for its expenses in producing copies of records which he had requested. The letter, in part, made the following request to Mr. Nchami:
You were notified by letter on June 6, 1997 that 1,084 pages of documents had been prepared for you and that they would be mailed after the University received a reasonable fee of $ 182.60 (15 cents per page and $ 20.00 shipping fee). You were notified by letter on August 4, 1999 that an additional 24 pages were prepared for you and that they would be mailed to you for an additional fee of $ 25.00 (15 cents per page, $ 15 for tape reproduction and $ 6.40 for shipping) . Again, once the University receives a total $ 207.60, the documents will be mailed to you.
In his letter of appeal, Mr. Nchami asks this office to determine whether the fees charged by the University are reasonable under the Open Records Act. In addition to his letter of appeal, Mr. Nchami provided this office with a copy of an August 29, 1999 letter he had written to Michael Seelig, Executive Assistant to the President of the University, in which Mr. Nchami indicated he had provided the University with over 1,200 pages of his own paper, three cassette tapes, and an addressed prepaid return shipment form via the Airborne Express Shipment Service to be used in shipping the requested records, to offset the cost of providing copies of the records.
As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Edmund J. Benson, Attorney, on behalf of the University, provided this office with a response to the issues raised in the letter of appeal. In his response, Mr. Benson explained the University's copying fees policy and its response to Mr. Nchami as follows:
The University has charged Mr. Nchami its standard fee for copying University documents requested under the Open Records Act, namely 15 cents per page. See Affidavit of Mr. Michael Seelig, attachment B. As set forth in the affidavit of the University's Printing Productions Manager, Ms. Cindy Trent, the University charges varying rates for document reproduction. See Affidavit of Ms. Cindy Trent, attachment C. This graduated rate schedule is designed to provide a discount to students and faculty for personal copy services, while covering the University's actual costs for such document reproduction, which exceeds 8 cents per copy. Thus, the University charges its faculty and students 5 to 8 cents per copy, while charging those not associated wit the University 10 cents to use the coin operated machines on campus, and 15 cents for copies made pursuant to an open records request.
Based on the facts stated herein and the applicable law, the University's copy fee charged to Mr. Nchami was reasonable as it was based on the University's actual document reproduction costs. The University is not aware of any Attorney General Opinion or other legal authority requiring a responding agency under the Open Records Act to accept "payment in kind" as a substitute for this reasonable copy fee. Nevertheless, the University is willing, as communicated in its original response to Mr. Nchami, to reduce the copy fee for reproducing the documents requested by Mr. Nchami by the value of the materials provided by Mr. Nchami, or to return those materials to Mr. Nchami, at his option.
The question before us is whether the University 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 fifteen cents per page copying fee which the University imposed exceeds its actual costs the fee is excessive and subverts the intent of the Act.
KRS 61.874(3) provides in relevant 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. In Friend v. Rees , supra, the Kentucky Court of Appeals held that ten cents per page was a reasonable copying charge under the Open Records Act.
In 99-ORD-40, this office recognized that a ten cents per page fee for copies of public records was the threshold standard fee. In that decision, we stated:
In our view, the courts, state government, and the many decisions of this office have recognized and established a bright line standard of a ten cents per page fee for copies of public records as a reasonable fee under the Open Records Act. This threshold standard fee establishes for public agencies a court approved reasonable fee for copies of public records and dispenses with the necessity of requiring the agencies to attempt to estimate costs involved in photocopying records. This would particularly be the case in agencies, such as FCPS, which have a large number of copiers in many different buildings.
The University has indicated the it has a graduated rate schedule for reproducing copies of documents which is designed to provide a discount to students and faculty for personal copy services, while covering the University's actual costs for such document reproduction, which exceeds eight cents per copy. The University states it charges its faculty and students five to eight cents per copy, charges those not associated with the University ten cents to use the coin operated machines on campus, and charges fifteen cents for copies made pursuant to an open records request.
The University, in explaining this graduated rate schedule, indicated that the fifteen cents a per page charge for copies of public records, in effect, serves to cross-subsidize the discount rate given to its faculty and students at five to eight cents per copy. The Open Records Act does not authorize such a fee arrangement for reproducing copies of public records. The fee charge must be based upon the agency's actual cost for reproducing records per page, based on the cost of media and mechanical processing as defined in KRS 61.870(7) and (8), not including staff costs.
It is the conclusion of this office that the University has failed to establish that its actual cost of reproducing records for copies of public records is fifteen cents per copy. Thus, we conclude that fifteen cents per page is an excessive copying fee. Unless the University can demonstrate that its actual cost for reproducing records, excluding staff costs, is greater than ten cents per page, it must recalculate its copying fee to conform to the requirements of KRS 61.874.
Finally, although the Open Records Act contains no provision authorizing a public agency to accept a requester's offer to supply his own copying paper to defray the cost of the copies, we do note that the Act contemplates a spirit of cooperation between the parties involved in an open records request. The University, consistent with this spirit of cooperation, has expressed its willingness to accept Mr. Nchami's offer and reduce the copying fee for reproducing the documents by the value of the materials he provided, or return those materials to him, at his option.
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.