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 Hickman County Fiscal Court subverted the intent of the Open Records Act, short of denial of inspection and within the contemplation of KRS 61.880(4), 1 by imposing excessive copying fees for the production of the records identified in Randy Skaggs' July 9, 2001, open records request. Based on 01-ORD-136, and the authorities cited therein, we conclude that the copying fees imposed were excessive. A copy of 01-ORD-136 is attached hereto and incorporated by reference.
On July 9, Mr. Skaggs requested copies of various records documenting the Hickman County Fiscal Court's compliance with Kentucky's animal control statutes, including KRS 258.192, for fiscal year 2000-2001. On July 12, 2001, Hickman County responded to Mr. Skaggs' request, advising him that his request for records would be honored upon receipt of a twenty-five cents per page copying charge. On appeal, Mr. Skaggs challenges Hickman County's position, asserting that the proposed copying charge is clearly excessive. We agree.
In 01-ORD-136, this office synthesized some twenty-five years of open records law pertaining to reasonable copying charges under KRS 61.874(3). 2 That statute provides:
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.
Rejecting the City of Stanford's argument that it could properly charge twenty cents per page to reproduce records in response to an open records request, we reaffirmed the longstanding rule that ten cents per page represents a reasonable copying charge, based on the costs of the media 3 and any mechanical processing 4 cost, but not including the cost of staff required. This position, as we noted in 01-ORD-136, was premised on the Kentucky Court of Appeals' opinions in
Friend v. Rees, Ky. App., 696 S.W.2d 325 (1985) and numerous open records decisions of the Attorney General confirming the reasonableness of the ten cents per page copying charge. Acknowledging that the actual costs incurred by a public agency in reproducing public records, based on the factors set forth in KRS 61.874(3), is almost always less than ten cents per page, "we continue[d] to ascribe to the view that in approving a ten cents per page copying charge, the courts and this office have struck a reasonable balance between the agency's right to recover its actual costs, excluding staff costs, and the public's right of access to copies of records at a nonprohibitive charge." 01-ORD-136, p. 7. Unless a public agency can substantiate that its actual costs exceed ten cents per page, it is statutorily obligated to recalculate its copying charge to reflect either its actual costs or no more than ten cents per page.
Hickman County seeks to impose a copying charge of twenty-five cents per page on Mr. Skaggs. Consistent with the position set forth above, we find that this charge is unreasonable and must be reduced to ten cents per page unless the county can substantiate actual costs in excess of this amount.
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.
Footnotes
Footnotes
1 KRS 61.880(4) provides:
If a person feels the intent of KRS 61.870 to 61.884 is being subverted by an agency short of denial of inspection, including but not limited to the imposition of excessive fees or the misdirection of the applicant, the person may complain in writing to the Attorney General, and the complaint shall be subject to the same adjudicatory process as if the record had been denied.
2 KRS 61.874(3) has undergone minor revision through the years. Those revisions do not alter our ultimate resolution of this issue.
3 "Media" is defined at KRS 61.870(7) as:
the physical material in or on which records may be stored or represented, and which may include, but is not limited to paper, microform, disks, diskettes, optical disks, magnetic tapes, and cards.
4 "Mechanical processing" is defined at KRS 61.870(8) as:
any operation or other procedure which is transacted on a machine, and which may include, but is not limited to a copier, computer, recorder or tape processor, or other automated device.