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 Office of the Scott County Clerk violated the Open Records Act in responding to the April 2, 2001 request of Tony Douglas for a copy of the "statute giving your county records copier room justification for charging .50 cents per copy for the public to get a copy of a public record. "
By letter dated April 5, 2001, J. Clay McKnight, Scott County Attorney, responding on behalf of the Scott County Clerk provided Mr. Douglas with a copy of KRS 61.874. Since the agency provided access to the requested report, we conclude that the issue of access to the requested record is moot. 40 KAR 1:030, Section 6.
Mr. Douglas also appeals the agency's charge of fifty cents per copy of each public record. Because there is no indication that the requested records are subject to the 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 fifty cents, KRS 61.874(3), applies and the copying fee the clerk charges may not exceed the actually cost of reproduction, excluding staff costs.
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, and which authorizes county clerks to charge fixed fees for recording, filing, releasing, and certifying copies of public documents, the fees charged for copies may be based on that list. If the clerk furnishes copies of records not identified in the list, she may charge a reasonable fee that does not exceed the actual cost of reproduction, 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."
KRS 61.874(3) 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.
Unless an agency can establish that its actual cost for reproducing records is fifty 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 and subverts the intent of the Open Records Act. If the county clerk charges fifty cents per page for records not covered by the Uniform Fee List, it must either substantiate the charge or recalculate its copying fee to conform to the requirements of KRS 61.874(3) and charge for copies of public records accordingly. 00-ORD-110.
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.
Tony Douglas186 Gemini TrailP.O. Box 782Georgetown, KY 40324
Donna B. PerryScott County Clerk Scott County CourthouseGeorgetown, KY 40324
J. Clay McKnightScott County AttorneyJustice Bldg.119 North HamiltonGeorgetown, KY 40324