Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This open records appeal presents three questions for review by the Attorney General. They are:
1. Whether the copying charges imposed by the Community Program Center of the Telecommunications Board of Northern Kentucky violated the reasonable fee provision codified at KRS 61.874(3);
2. Whether the VHS copy of the videotape of CPC's December 6, 2000, meeting that CPC furnished to John Ellenbogen in response to his request for an SVHS copy satisfied the requirements of KRS 61.874(2) and (3);
3. Whether CPC complied with the procedural requirements of the Open Records Act, found at KRS 61.880(1), in responding to Mr. Ellenbogen's request.
For the reasons that follow, we find that although the copying charges imposed by CPC appear to have been excessive, and therefore violative of the reasonable fee provision, its disposition of Mr. Ellenbogen's requests was otherwise consistent with the requirements of the Open Records Act, including KRS 61.874(3) and KRS 61.880(1).
A review of the voluminous documentation submitted to this office relative to Mr. Ellenbogen's January 9, 2001, appeal discloses the following salient facts:
November 24, 2000 - Mr. Ellenbogen submits an open records request to CPC to inspect "all documents . . . which deal with . . . any and all disciplinary actions that CPC took from 01 January 1997 to the present. . . . ."
November 29, 2000 - TBNK executive director Tim Broering responds to Mr. Ellenbogen, inviting him to "come in and review the records under our supervision." He notifies Mr. Ellenbogen that the he can obtain copies of any such record at a cost of 25 cents per page "per our open records policy."
December 1, 2000 - Mr. Ellenbogen inspects records and obtains 7 copies at a cost of $ 1.75 "under protest."
December 6, 2000 - Mr. Ellenbogen requests a tape of the CPCAC meeting to be held at 6:00 p.m. that evening. He asks that staff "record an additional original (120 min. SVHS) tape . . . if your technical/equipment capabilities allow. . . ."
December 14, 2000 - Mr. Broering notifies Mr. Ellenbogen that the videotape copy of the December 6 CPCAC meeting "is available at master control upon payment for same." 1
December 15, 2000 Through January 5, 2001 - Mr. Ellenbogen submits a series of "reminders," inquiring about the format used and the copying cost of the videotape
January 8, 2001 - Mr. Broering responds:
John, your copy of the December 6, 2000 CPCAC meeting has been available since before December 14, 2000, as I sent to you in writing on December 14. As to the cost and format, we told you in person on December 6 that it would cost $ 22.00 and would be on VHS tape. VHS is the standard electronic format as required by the open records act. The cost for this tape is based on KRS 61.874(3) which permits us to charge the actual cost of production, including the cost of the media (the VHS tape) and the mechanical processing costs incurred by us. A VHS tape is a clear and complete copy of the records, and satisfies your open records request.
All of this information was communicated to you in person and/or in writing before. You could have picked up your tape weeks ago. I believe, your constant inquiries are designed to disrupt the essential functions of this agency, therefore I will not continue to have you take me away from the operations of the agency and its facilities, by requesting me to document every detail of every conversation we have.
January 9, 2001 - objecting to CPC's refusal to provide a copy of the tape of the meeting "in the same format (SVHS) in which it was produced and still holds (archives) the original," and the $ 22.00 copying charge 2, Mr. Ellenbogen initiates this appeal, requesting that the Attorney General or the auditor "perform an audit . . . since it appears prima facie, that prices are charged, and funds are possibly misdirected, contrary to law and contrary to the public interest."
In a response directed to this office following commencement of Mr. Ellenbogen's appeal, Mr. Broering elaborated on TBNK-CPC's position. Mr. Broering defended the 25 cents per page copying charge the agency imposes as reasonable, noting that the charge "has been paid by others in the past with no challenge to its validity, and it is an accepted copy fee for other agencies and companies in Northern Kentucky, including the United States Post Office." In defense of CPC's $ 22.00 charge for the VHS copy of the tape of its December 6 meeting, Mr. Broering observed:
The $ 22.00 copy fee includes $ 20.00 for the mechanical processing costs involving professional video equipment plus the cost of the media at the price the CPC paid the vendor. Mr. Ellenbogen asserts that we charge other producers $ 2.25 for blank VHS tapes, but this does not include copying costs. For producers, video copying fees include $ 20.00 for actual copying costs plus $ 2.25 for the blank VHS tape.
SVHS tapes cost - depending on brand, grade of tape and venders fluctuating prices - approximately $ 8.00 to $ 12.00 dollars. VHS tapes cost approximately $ 2.00 to $ 6.00 again depending on brand, vendor and grade of tape. The CPC charges an average of the actual cost we paid the vendor the tape.
It was Mr. Broering's position that these copying charges were established in good faith, but that TBNK-CPC would reduce the charges if this office deemed them excessive. 3
With reference to the formatting issue, and CPC's decision to provide a copy of the tape of the meeting in VHS rather than SVHS format, Mr. Broering commented:
VHS videotape is the most ubiquitous, most standard format of videotape, as required by open records. I believe that the regulation concerning "standard format" refers to the standard used by general public and office environments - most of which use VHS. It is the format you use at home; it is in most people's homes.
SVHS is playable only by specific SVHS players, which are mostly used by professionals and used by a very small segment of the home market. The SVHS format that Mr. Ellenbogen demands is not the "standard electronic format" that is required under KRS 61.874(2).
The familiar home VHS format is the "standard electronic format" contemplated under KRS and is a clear, complete and accurate documentation that certainly satisfies an open records request.
[T]he CPC recycles the professional SVHS format tapes because they are too expensive to be kept in archives. For the CPC archives, VHS copies are maintained.
Mr. Ellenbogen responds, in a follow-up letter, that KRS 61.874(2)(b) does not define standard format for videotapes, that CPC's own policies describe SVHS as the "preferred videotape format, " that the tape produced during the December 6 meeting was in SVHS format, and that the tape "most likely still is" available in SVHS format. Citing KRS 61.874(2)(b), he maintains that he is entitled to the tape in SVHS format inasmuch as the Open Records Act states that if an agency maintains electronic public records in a format other than ASCII, and the format conforms to the requester's requirements, the public record may be provided in this alternate electronic format for standard fees. He enters his continuing objection to the copying charges imposed by CPC, and its failure to conform to the procedural requirements of the Open Records Act set forth at KRS 61.880(1). We address the issues of reasonable copying fees, formatting, and procedural compliance below.
Copying charges
We believe the 25 cent copying charge which CPC has adopted as part of its open records policy is excessive. KRS 61.874(3) authorizes public agencies to "prescribe a reasonable fee for making copies of nonexempt public records . . . 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." The agency may require advance payment of the prescribed copying charge, including postage. KRS 61.874(1) ("[T]he custodian may require a written request and advance payment of the prescribed fee"); KRS 61.872(3)(b) ("If the person requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing"); see also, 94-ORD-90 and 95-ORD-105.
It is not proper for CPC, or any other public agency, to impose a copying charge which exceeds its actual costs. At page 3 of OAG 82-396, this office opined:
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 10 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 10 cents per page, any copying charge which exceeds this amount is presumptively 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. In OAG 90-50, this office specifically stated that a 25 cent copying charge was excessive when that fee was not based upon the agency's actual costs, exclusive of personnel costs. Unless CPC can rebut the presumption by demonstrating that its actual cost for reproducing records is greater than 10 cents per page, based on the cost of media and mechanical processing as defined in KRS 61.870(7) and (8), 4 it must recalculate its copying fee to conform to the requirements of KRS 61.874.
By the same token, unless CPC can demonstrate that the actual cost it incurs in producing a VHS copy of an SVHS tape, based on media and mechanical processing costs but excluding staff costs, is equal to $ 22.00, it must recalculate its copying charge for videotapes to conform to the criteria set forth at KRS 61.874(3). Mr. Broering indicates that $ 2.00 of the copying charge represents the cost of the media, namely VHS tapes, to the agency. Based on the supporting documentation provided, we find that this charge does, in fact, reflect the lowest average actual cost for videotapes. Conversely, Mr. Broering indicates that the remainder of the charge represents the video copying fee CPC charges producers. He attaches a duplication request form from CitiCable, a subdivision of the City of Cincinnati's Division of Telecommunications, documenting a $ 20.00 duplication fee for the first hour, $ 25.00 for up to two hours, and $ 5.00 for each additional hour after that. Mr. Broering does not indicate that CPC utilized the services of CitiCable of Cincinnati, and thus incurred a $ 20.00 or more charge. Nor does he indicate that, utilizing its own facilities, CPC incurs an actual cost of $ 20.00 in duplicating a videotape. It seems more likely that a profit is built into the duplication costs for both CitiCable and CPC when they are employed by a producer to duplicate a videotape for commercial or other purposes. In contrast, no profit can be built into the actual costs associated with the duplication of a videotape in response to a request under Kentucky's Open Records Act. Unless the operation or procedure transacted on its own "copier, computer, recorder or tape processor, or other automated device" costs CPC $ 20.00, we find that the $ 22.00 copying charge it assessed Mr. Ellenbogen was excessive, and therefore violated KRS 61.874(3).
Format
Mr. Ellenbogen next challenges the format in which the videotape of CPCAC's December 6 meeting was released to him. He requested the videotape in an SVHS format, either in the form of a second original SVHS tape created simultaneously or in the form of an SVHS duplicate of the only original, based on the knowledge that this is CPC's "preferred videotape format, " and the belief that it must therefore be treated as the standard format within the meaning of KRS 61.874(2)(b). Mr. Broering responds that although CPC utilizes SVHS videotapes, these professional quality tapes are recycled, because of their expense, and VHS copies maintained in archives. He rejects the argument that they represent the standard format for videotapes, given their expense and the infrequency of their use. Instead, Mr. Broering concludes, the VHS format, designed for and commonly used in homes, represents standard electronic format as defined in KRS 61.874(2)(b).
With reference to Mr. Ellenbogen's request that CPC simultaneously create a second original SVHS videotape of its December 6, 2000, meeting, we find that the Open Records Act imposes no such duty, and CPC was in no way obligated to do so. With reference to Mr. Ellenbogen's objection to release of the videotape in VHS format, we find no statutory support for his position. KRS 61.874(2)(b) 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, or for electronic format, in a flat file electronic American Standard Code for Information Interchange (ASCII) format. If the public agency maintains electronic public records in a format other than ASCII, and this format conforms to the requestor's requirements, the public record may be provided in this alternate electronic format for standard fees as specified by the public agency. Any request for a public record in a form other than the forms described in this section shall be considered a nonstandardized request.
In introducing the concept of "standard format" to the Act in 1994, the Kentucky General Assembly addressed only electronic and hard copy records. Requests for electronic records in anything other than ASCII format, and for hard copy records in anything other than 8 1/2 inches x 11 inches on white paper, were deemed "a nonstandardized request" which the agency, in its discretion, could provide, and for which it could recover both actual costs and staff costs. The General Assembly did not designate a standard format for videotapes, and we find no statutory support for either Mr. Ellenbogen's or CPC's position. In our view, the concept of "standard format" has no place in a discussion of anything other than electronic or hard copy records maintained in the media described.
This being the case, we believe that for all other public records, including maps, photographs, cards, tapes, recordings, and most important in the present context, videotapes, we revert to the old line of decisions recognizing that "what the requester gets is what the agency has and in the format in which the agency has it." 98-ORD-199, p. 4, citing OAG 91-12 and 94-ORD-150. Although CPC utilizes SVHS videotape in its productions, Mr. Broering indicates that they are recycled, and VHS copies maintained in archives. This, then, is the format in which the requested record was, or is, maintained, and the format to which Mr. Ellenbogen is entitled. Having complained about the imposition of excessive fees by CPC, it is curious that Mr. Ellenbogen would question a policy aimed at reducing costs. We find that CPC discharged its duties under the Open Records Act by furnishing Mr. Ellenbogen with a VHS videotape of the December 6 meeting of CPCAC.
Procedural Compliance
The final issue which Mr. Ellenbogen raises relates to CPC's compliance with the procedural requirements of the Open Records Act codified at KRS 61.880(1). That statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
"The procedural requirements of the Open Records Act, " this office has often observed, "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5.
We will not belabor this issue. CPC's response to Mr. Ellenbogen's November 24, 2000 request complied as to timeliness and content with the requirements found at KRS 61.880(1). The response was issued on November 29, and notified him that the records were available for inspection and copying. 5 Although he produces no documentary support, Mr. Broering states that CPC notified Mr. Ellenbogen by fax on December 6, 2000, the same day he submitted his second request, that he could obtain a copy of the requested videotape at a cost of $ 22.00 "in a few days," presumably the time needed to create a duplicate of the original. If, in fact, this is the case, CPC's response was procedurally correct. If, however, the only communications between CPC and Mr. Ellenbogen were conducted orally, its disposition of his request fell short of the legal requirements codified at KRS 61.880(1), and constituted a violation of the Open Records Act.
Assuming arguendo that CPC faxed its response to Mr. Ellenbogen's second request on December 6, it fully discharged its statutory duties and was not obligated to engage in a continuing line of communication with him relative to his reminders and inquiries concerning formatting and copying costs. Its December 14 response, although arguably gratuitous, should have laid any lingering issues to rest. CPC was not obligated to supplement its response unless its December 6 response was only communicated orally. As noted above, if this was, in fact, the case, CPC's disposition of Mr. Ellenbogen's request was deficient.
Conclusion
KRS 61.880(2)(b), which charges the Attorney General with the duty to review open records appeals and issue written decisions stating whether public agencies violated the Open Records Act, does not invest this office with the authority to conduct an audit into copying charges imposed by the agencies. We therefore respectfully decline Mr. Ellenbogen's request to perform an audit of TBNK-CPC's finances. Having resolved the issues arising under the Act, our involvement in this matter is ended.
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 proceedings.
John Ellenbogen36 Superior AvenueFort Mitchell, KY 41017
Tim BroeringExecutive DirectorTelecommunications Board of Northern Kentucky3414 Decoursey AvenueCovington, KY 41015
Jeffrey Slayton SmithFrost Brown Todd LLC50 East RiverCenter Blvd.Suite 650Covington, KY 41011
Footnotes
Footnotes
1 Although he produces no documentation in support, Mr. Broering states in a letter to this office that on December 6, the date of the request, Mr. Ellenbogen was notified in person and by fax that he could have a VHS copy of the tape of the meeting at a cost of $ 22.00 "in a few days."
2 In his letter of appeal, Mr. Ellenbogen notes that the $ 22.00 is clearly excessive given the fact that retail costs are substantially lower. "At best," he maintains, the cost should not exceed $ 9.50.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
3 Mr. Broering attached sample price lists from vendors of blank videotapes and a price list from a videotape copies vendor to his response in support of the copying charges imposed.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
5 We have addressed the issue of excessive copying fees in the discussion above. We will not lengthen this decision by revisiting the issue.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -