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 Danville Department of Public Safety's Division of Police, subverted the intent of the Open Records Act, short of denial of inspection, by imposing excessive copying fees. For the reasons that follow, and upon the authorities cited, we conclude that the fees imposed were excessive, and that the Division thereby subverted the intent of the Act.
On May 22, 2001, Richard Clay submitted an open records application to the Division of Police in which he requested copies of "all video recordings, written documentation and magnetic recordings concerning 911 calls and radio transmission involving officers dispatched by [the Division] for the early morning of May 4, 2001, between the hours of 12:00 midnight and 2:00 a.m." In a response dated May 25, 2001, Chief Larry K. Downs notified Mr. Clay that the "necessary research" had been conducted, and the records were available at a cost of $ 28.35. He explained:
The cost to you will be $ .15 per page for each written document. However, the research for the audio recordings required two hours of work to obtain at a cost of $ 12.00 per hour. Therefore, the cost to you will be as follows:Written documents9 @ $ .15=1.35Audio cassettes2 @ $ 1.50=3.00Research Time2 @ $ 12.00=24.00Total$ 28.35
Upon receipt of Chief Downs' response, Richard Clay submitted this appeal, questioning whether he could properly be charged for "research time," and whether $ .15 per page represented a reasonable copying charge for photocopies. Having examined existing authority, we conclude that the answer to both of these questions is "no."
In a supplemental response directed to this office following commencement of Mr. Clay's appeal, Edward D. Hays, legal counsel for the City of Danville, elaborated on Chief Down's position. He maintained:
KRS 61.874(3) provides in part that if an agency is asked to produce a record in a non-standardized format, or to tailor the format to meet the request, the public agency may recover staff costs. The request of Mr. Clay was all inclusive and it required the agency to tape record certain records and to examine the requested information for purposes of determining whether or not any matters contained therein were confidential.
Secondly, we would question whether or not the records were sought for a commercial purpose versus a non-commercial purpose. Mr. Clay is a licensed attorney. His request does not state the purpose of his request. KRS 61.871(4)(a) [sic] defines commercial purposes and seems to imply that if a salary or fee is expected to be earned or received by the user, then it is for a commercial purpose.
It was Mr. Hays' position that "the total charges of $ 28.35 are more than reasonable considering the scope of the request, the amount of administrative work involved, and the other factors mentioned . . . ." We do not find these arguments persuasive.
It is the opinion of this office that the fees imposed by the Danville Department of Public Safety's Division of Police for duplication of hard copy and audio records are 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 improper for the Division of Police, or any other public agency, to impose a copying charge that exceeds its actual costs, and that includes the cost of staff required. 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 charge for duplication of hard copy records 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 photocopies 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 99-ORD-186, this office specifically stated that a 15 cent copying charge for records maintained in hard copy format was excessive when that fee was not based upon the agency's actual costs, exclusive of personnel costs. Unless the Division can rebut the presumption by demonstrating that its actual cost for photocopying hard copy 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), it must recalculate its copying fee to conform to the requirements of KRS 61.874.
The logic of this holding applies with equal force to audio recordings. In defense of the $ 27.00 charge for two audio recordings on cassette tape, the Division argued that it could properly assess a $ 12.00 per hour charge for "research time" associated with production of the tape. The Division relied on KRS 61.874(3), arguing that Mr. Clay requested records in a nonstandardized format, and that it was therefore justified in recovering staff costs in addition to its actual costs. KRS 61.874(3) provides in relevant part:
If a public agency is asked to produce a record in a nonstandardized format, or to tailor the format to meet the request of an individual or a group, the public agency may at its discretion provide the requested format and recover staff costs as well as any actual costs incurred.
Standard format is defined at KRS 61.874(2) as follows:
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 audiotapes, and we find no support for the Division'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." 01-ORD-50, p. 7. This being the case, we find that unless the Division of Police can demonstrate that the actual cost it incurs in duplicating a recording of 911 calls and radio transmissions, based on media and mechanical processing costs, but excluding staff cost, is equal to $ 27.00, it must recalculate its copying charge for audiotapes to conform to the criteria set forth at KRS 61.874(3). The Division may not impose any additional fees for "research time" or time spent in "examin[ing] the requested information for purposes of determining whether or not any matters contained therein were confidential." See 98-ORD-32 (pursuant to KRS 61.878(4), public agency is required to separate excepted material from nonexcepted material, and make the nonexcepted material available for inspection, and agency must bear the cost of redaction).
The Division of Police speculates that Mr. Clay intends to use the records for a commercial purpose inasmuch as he is a licensed attorney who will earn a salary or fee for the services to which the records relate, and implies that upon this basis it may charge him a higher copying fee. The Division properly defines "commercial purpose" as:
The direct or indirect use of any part of a public record or records, in any form, for sale, resale, solicitation, rent, or lease of a service, or any use by which the user expects a profit either through commission, salary, or fee.
KRS 61.870(4)(a). However, the Division fails to note that the definition expressly excludes:
Use of a public record in the preparation for prosecution or defense of litigation, or claims settlement by the parties to such action, or the attorneys representing the parties[.]
KRS 61.870(4)(b)(3). Assuming that Mr. Clay intends to use these records in prosecuting or defending litigation, we do not believe that his purpose can be characterized as commercial, and a higher copying fee charged, notwithstanding the fact that he will be paid for his services. Again, the Danville Department of Public Safety's Division of Police is restricted to the imposition of a reasonable fee based on the criteria set forth at KRS 61.874(3).
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.
Richard Clay319 West Main StreetP.O. Box 1256Danville, KY 40423
Larry K. DownsChief of Police410 West Main StreetDanville, KY 40423-0670
Edward D. HaysDanville City AttorneyP.O. Box 670445 West Main StreetDanville, KY 40423-1200