Opinion
Opinion By: Albert B. Chandler III,Attorney General;James M. Ringo,Assistant Attorney General
Open Records Decision
There are two issues presented in this appeal. The first issue concerns whether the Meade County Solid Waste and Recycling Board's charge of twenty-five cents per page copying fee violated the Open Records Act. The second issue is whether a violation of the Open Records Act occurred when the Meade County Solid Waste and Recycling Board required that The Meade County Messenger newspaper state whether its request for copies of non-exempt public records was for a commercial or non-commercial use. For the reasons that follow, we conclude that, unless the Board can substantiate that its actual cost for reproducing records is twenty-five cents, it must recalculate its copying fee to conform to the requirements of KRS 61.874, and we also conclude that, because publication or related use by a newspaper or periodical is not considered a "commercial purpose, " under KRS 61.870(4)(b)1, the Board violated the Open Records Act in requiring the newspaper to state its intended use of the public record.
By letter dated August 26, 2002, Pat Bowen, Editor, The Meade County Messenger, complained to the Board that, unless it could substantiate that its actual cost for making copies was twenty-five cents per page, its current charge of twenty-five cents per copy was excessive in violation of KRS 61.874(3).
By letter dated August 29, 2002, Robert L. Heleringer, Board Attorney, responding on behalf of the Board, advised:
The Board has not committed a violation of KRS 61.874(3). The 25 [cents] per copy charge for "making copies on non-exempt public records requested for use for non-commercial purposes" does not exceed " . . . the actual cost of reproduction, including the costs of the media and any mechanical processing cost incurred by the . . . " Solid Waste Board.
Moreover, KRS 61.874(3) does not apply in this situation. KRS 61.874(4)(b), (c) are more pertinent because any photocopies of non-exempt public records sought by your newspaper are being requested for a commercial purpose (publication). In that instance, pursuant to KRS 61.874(4)(c), the Board may charge a photocopying fee based on either one or both of the following:
In the future, the Board will respond to any future requests by your newspaper for photocopies with a strict and literal compliance with KRS 61.874(5)(c) and AG 99-ORD-222 by requiring the newspaper to state whether or not its request for photocopies of non-exempt public records is for a commercial or non-commercial purpose, and such requested copies shall not be reproduced unless and until a response is given to said inquiry. The charge for those copies, after a proper and lawful request is made therefor, shall remain 25 [cents].
As a courtesy, single photocopies of the agenda for any Board meetings (regular or special) will continue to be provided free of charge to your employees as well as members of the general public.
After another exchange of letters between Ms. Bowen and the Board, with no change of position occurring, Ms. Bowen initiated the instant appeal. We are asked to determine whether the Board's charge of twenty-five cents per copy and its requirement that the newspaper state whether its request for photocopies of non-exempt public records is for a commercial or non-commercial purpose violated the Open Record Act. For the reasons that follow, we conclude that (1) unless the Board can substantiate that its actual cost for reproducing records is twenty-five cents, it must recalculate its copying fee to conform to the requirements of KRS 61.874, and that (2) the Board did violate the Act in requiring the newspaper to state its intended use of the public record.
We address first the issue as to whether the 25 cents per page fee charged for copies of records was excessive. 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, Ky. App., 696 S.W.2d 325 (1985), 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, such as [Fayette County Public Schools], which have a large number of copiers in many different buildings.
The fee charge must be based upon the agency's actual cost for reproducing records per page, based on the cost of media and mechanical processing as defined in KRS 61.870(7) and (8), not including staff costs.
In the instant case, no evidence has been submitted to substantiate that the Board's actual costs for reproducing copies of its public records is 25 cents per page. Thus, we conclude that 25 cents per page charge is an excessive copying fee. Unless the Board can demonstrate that its actual cost for reproducing records, excluding staff costs, is greater than ten cents per page, it must recalculate its copying fee to conform to the requirements of KRS 61.874.
Next, we address the Board's requirement that the newspaper state whether its request for photocopies of non-exempt public records is for a commercial or non-commercial purpose, which requirement we conclude violated the Open Records Act.
KRS 61.870(4)(a) describes "commercial purpose" for purposes of the Open Records Act. KRS 61.870(4)(b)1. specifically provides:
"Commercial purpose" shall not include:
Since a newspaper's use of a public record is specifically excluded from the definition of "commercial purpose, " it cannot be required to state whether or not its request is for such purpose. Publication or related use of the public record by a newspaper, by definition, is not a commercial purpose. KRS 61.870(4)(b)1. Accordingly, we conclude that requiring such a statement before processing the newspaper's open records request constitutes a violation of the Open Records Act.
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.
Pat Bowen The Meade County Messenger 235 Main StreetP.O. Box 678Brandenburg, KY 40108
Bill WardripMeade County 109 Boardc/o Meade Co. Solid Waste & Recycling750 Ready Mix RoadBrandenburg, KY 40108
Robert L. HeleringerAttorney at Law7982 New LaGrange Road, Suite 1Louisville, KY 40222