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 whether the actions of the City of West Point relative to the open records request of Gary Masterson violated the Open Records Act. On May 15, 2000, Mr. Masterson requested copies of the following records:
1. Financial records for all city accounts beginning with January 1, 1999 to current date.
2. Minutes from all City Council Meetings, including all special called meetings, beginning with January 1, 1999 to current date.
By letter dated May 18, 2000, Catherine Reeder-Woosley, City Clerk/Treasurer, responded to the request on behalf of the City. In her response, Ms. Reeder-Woosley stated:
In reference to your request on May 15, 2000 for all City financial records and minutes to all meetings from January 1, 1999 up to current date. I regret to inform you that this request is much too broad a request to fulfill at this time.
The charge per page for this work is .25 cents per page. If you have any further questions, you may direct them to the Mayor.
By letter to this office dated August 15, 2000, Mr. Masterson appealed the refusal of the City to allow him access to the records. He argued that the failure to receive the requested records after three months from the date of his original request was a violation of the Open Records Act. He further questioned the City's charge of $ .25 per copy as excessive.
After receipt of this office's "Notification to Agency of Receipt of Open Records Appeal," Ms. Reeder-Woosley submitted a response to Mr. Masterson's letter of appeal. In her response, she stated in part:
This is in response to Gary Masterson's complaint of not receiving requested public records from West Point City Hall. He received on August 28, 2000 income ledgers, expense ledgers, voucher detail reports, monthly totals report of income detail and all the minutes of council meetings from January 1, 1999 through July 30, 2000. A total of 202 pages were copied for him.
Addressing first the substantive issue in this appeal, it appears that the City has provided Mr. Masterson with all existing records that he requested. 40 KAR 1:030, Section 6. Moot Complaints, provides:
If the requested documents are made to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter.
Thus, we conclude that this issue is moot. 40 KAR 1:030, Section 6. If any records remain in question, we urge the parties to this appeal to proceed in a spirit of cooperation to resolve those issues.
We do note that generally speaking, if nonexempt records exist in both standard electronic and standard hard copy formats, the public agency must permit inspection of and copying in the format requested by the requester. 99-ORD-12. In the instant case, the City explained to Mr. Masterson that its computer records were maintained by an accounting software program not available to the general public and therefore a disk in that format would be useless to him. Assuming this to be the case, this office has recognized that if an alternative mechanism for inspection of electronic records exists, such as printing out the requested computer records in hard copy format, the requester cannot persuasively argue that unreasonable restrictions on inspection were imposed. 00-ORD-8. As noted above, the City provided Mr. Masterson the records in hard copy paper format.
We do find that the City's delay of three months in providing Mr. Masterson with the requested records constituted a procedural violation of the Open Records Act. In 94-ORD-134, the Attorney General held that a delay in providing access to public records of one hundred and twenty days constituted a violation of the Open Records Act, which contemplates records access within three business days of receipt of a request. Mr. Masterson's request was submitted on May 15, 2000. The City furnished him with a copy of the letter identified in his request on August 28, 2000. Over three months elapsed between the date on which his request was submitted and the date on which his request was honored. KRS 61.872(5) provides:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
A delay of this duration violates the three day deadline for agency response found in KRS 61.880(1), and the principle of timely access found in KRS 61.872(5).
93-ORD-134.
Finally, the City's May 18, 2000 response to Mr. Masterson's request indicates that its charge for copies of records is twenty-five cents per page. Mr. Masterson challenges this charge as excessive. For reasons that follow, we conclude that twenty-five cents per page is not a reasonable copying charge within the meaning of 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. An agency can only assess a reasonable copying charge for public records not to exceed its actual costs, excluding staff time required. Unless an agency can document that its actual costs are greater than ten cents per page, both the courts and this office have demonstrated an unwillingness to countenance higher copying charges. See, e.g.,
Friend v. Rees, Ky.App., 696 S.W.2d 325 (1985); 94-ORD-77.
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 . . . which have a large number of copiers in many different buildings.
In the instant case, unless the City can establish that its actual cost for reproducing records is twenty-five cents per page, based on the cost of media and mechanical processing as defined in KRS 61.870(7) and (8), the charge is excessive. If, in fact, the City charged twenty-five cents per page, it must recalculate its copying fee to conform to the requirements of KRS 61.874(3) and prior decisions of the courts and this office and charge Mr. Masterson 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.