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 Carter County Clerk 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 find that the fees imposed by the county clerk for copies of public records constituted a subversion of the intent of the Act because those fees were not based on the uniform fee schedule for county clerks codified at KRS 64.012, and were otherwise excessive under the reasonable fee provision of the Open Records Act.
On March 21, 2000, Mr. Roe requested copies of seven pages from Book No. 11 located in the Carter County Clerk's office. The clerk charged him $ 7.00 for these copies, and gave him a receipt documenting this fee. Shortly thereafter, Mr. Roe initiated an open records appeal in which he asked that the Attorney General review the county clerk's actions to determine if the copying fees imposed were excessive. To facilitate our review, Mr. Roe furnished us with a copy of the receipt.
In a response dated April 14, 2000, Assistant Carter County Attorney Todd K. Trautwein explained that the copies of deeds which Mr. Roe requested "were not obtained pursuant to an Open Records Request," and that he was charged "the customary fee for these copies." It is the opinion of this office that KRS 61.874(3), the reasonable fee provision of the Open Records Act, is a residual statute that applies where there is no applicable specific fee statute. Because there is no indication that the copies of deeds which Mr. Roe obtained were certified copies, subject to the $ 5.00 specific fee provision found at KRS 64.012, and because the fee schedule itself identifies no service for which the clerk is authorized to charge $ 1.00, the residual fee provision codified at KRS 61.874(3) applies and the copying fee the clerk may impose is restricted to ten cents per page.
In 96-ORD-3, the Attorney General addressed a similar issue. There, the requester asked that the county clerk provide her with uncertified copies of deeds. The clerk honored her request, but charged her five dollars for each deed. We rejected the clerk's argument that he was entitled to the five dollar fee, notwithstanding the fact that the requester specifically asked for noncertified copies. At pages 2 and 3 of 96-ORD-3, the Attorney General observed:
KRS 61.874(3), formerly codified as KRS 61.874(2), provides:
Although the language of this provision has been slightly modified, the meaning and import are the same: The fee charged for copies should be based on the actual expense to the agency, not including the cost of staff. OAG 80-421; OAG 82-396; OAG 84-91; OAG 88-74; OAG 89-9; OAG 91-98; OAG 91-200. The fee is thus limited to 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 reproduction charge under the Open Records Act.
This office has consistently taken the position that KRS 61.874 is a residual and general statute, and applies where there is no other applicable fee statute. OAG 80-209; OAG 84-91; OAG 87-80; OAG 89-9; OAG 92-79. If the county clerk furnishes copies of records specifically identified in the Uniform Fee List, which is found at KRS 64.012, the fees charged for copies may be based on that list. If the clerk furnishes copies of records not identified in the list, he may charge a reasonable fee that does not exceed the actual cost of reproduction, and excluding staff costs. As we observed in OAG 87-80, at page 2, "KRS 64.012, pertaining to the fees of county clerks, prevails over KRS 61.874[(3)] only if there is a conflict between the two statutes."
On the facts presented, we see no conflict. KRS 64.012 authorizes the county clerk to charge five dollars for a "certified copy of deed. " (Emphasis added.) [The applicant] did not request a certified copy of a deed. Instead, she requested an uncertified copy. KRS 64.012 does not specify the cost for uncertified copies of deeds. In the absence of an applicable fee statute, KRS 61.874(3) prevails, and the . . . County Clerk is entitled to recover only his actual cost for reproducing the requested records.
The Attorney General thus held that the county clerk subverted the intent of the Open Records Act, short of denial of inspection, by imposing excessive fees for copies of nonexempt public records in his custody. As a corollary of this holding, we suggested that the clerk "recalculate the fees charged to conform to the statutory requirements of KRS 61.874(3)," concluding that "such charge should be imposed uniformly as against all requesters. " 96-ORD-3, p. 3, citing OAG 94-38, p. 3 and Ky. Const. § 3.
We believe that 96-ORD-3 has a direct bearing on resolution of this appeal. As noted, there is no indication in the record before us that Mr. Roe requested and received certified copies of deeds for which he could properly be charged five dollars. KRS 64.012. No provision in the KRS 64.012 fee schedule authorizes the imposition of a one dollar per page copying charge. Accordingly, there is no applicable specific fee provision, KRS 61.874(3) prevails, and the Carter County Clerk is entitled to recover only his actual cost for reproducing the requested records. The Kentucky Revised Statutes does not authorize public agencies to adopt three disparate fee structures, one for copies of records governed by the uniform fee schedule for county clerks found at KRS 64.012 or other specific fee provisions located throughout the KRS, a second for copies of records requested under the Open Records Act and governed by the reasonable fee provision found at KRS 61.874(3), and a third for all other copies requested. Simply stated, where KRS 64.012 does not apply to copies of records provided by the county clerk, KRS 61.874(3) applies and the clerk may recover only the actual costs of reproduction, not including staff costs.
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.