02-ORD-218 | KOGC

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 Meade County Clerk subverted the intent of the Open Records Act, short of denial of inspection, by imposing an excessive copying fee for the production of public records in her custody that do not appear on the uniform fee schedule for county clerks codified at KRS 64.012. For the reasons that follow, we find that although the county clerk relied, in good faith, on the position taken by the Kentucky County Clerks Association, and the cost analysis provided by her copier vendor, the copying fee of $ .25 per page which the clerk imposed was excessive and therefore constituted a subversion of the intent of the Act within the meaning of KRS 61.880(4). We further find that the county clerk substantiated a copying fee of $ .15 per page and may impose a fee in this amount, but we continue to believe that the better practice is to impose a fee of $ .10 per page inasmuch as this fee "str[ikes] 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. 6.

On August 26, 2002, Meade County Messenger Editor Pat Bowen submitted a written complaint to the Meade County Clerk in which she objected to the $ .25 per page copying charge the clerk imposed for nonscheduled public records. In support, Ms. Bowen cited Friend v. Rees, Ky.App., 696 S.W.2d 325 (1985) and a number of Attorney General's opinions recognizing that $ .10 per page represents a reasonable copying fee. On the basis of these authorities, she asserted that unless a public agency can substantiate actual costs in excess of $ .10 per page, based on medium and mechanical processing costs but not including staff costs, the agency's fee "will be deemed excessive . . . ."

In response, Meade County Clerk Katherine Mercer notified Ms. Bowen that she had "not spent county money to hire a CPA to determine the cost of making a copy," but had instead "deferred to the Kentucky County Clerks Association to determine fees not set by statute." Continuing, she observed:

The position of the KCCA is that a copy charge up to $ .50 per page is a fair charge and in lieu of having a cost accounting done in each county, represents the actual cost of the copy not including any cost of labor to make the copy.

Ms. Mercer indicated that her $ .25 copying fee "is considerably lower than this figure" and that a breakdown of copying costs obtained from the county clerk's copier vendor substantiated a fee of "approximately $ .25 per copy." 1 Shortly thereafter, Ms. Bowen initiated this appeal, challenging the reasonableness of the Meade County Clerk's copying charge specifically, and the County Clerks Association's position generally.

Following commencement of Ms. Bowen's appeal, the Attorney General requested, pursuant to KRS 61.880(2)(c), that the Clerks Association explain, in writing, how the Association arrived at the $ .50 per page copying charge. On behalf of the Association, Fayette County Clerk Donald W. Blevins responded to our inquiry on September 27, 2002. He advised:

Ms. Mercer furnished to Ms. Bowen a cost analysis prepared for her by the manufacturer's representative for the specific machine used for making the subject copies. It seems to me that Ms. Mercer has fulfilled what is required of her under the law and has passed on to the newspaper a fair, reasonable and legal charge. Friend v. Rees, Ky.App., 696 S.W.2d 325 opined "A public agency is authorized to prescribe reasonable fees for making copies of public records. " In that case, it referred to $ .10 per page as being reasonable for that particular situation. I do not believe that this case limits any public agency to $ .10 per page in 2002. I believe the case merely restates the obvious under KRS 61.874 and that is to charge a reasonable charge based upon the actual costs of reproduction not including labor. I believe any fair reading of this cited case allows for that cost to vary from fact situation to fact situation.

Mr. Blevins further advised that an internal association committee, formed within the past few years, was unsuccessful in its attempts to establish a uniform fee for reproducing records under the Open Records Act because of the wide variety of reproduction equipment used in each office. The Association therefore determined, "based on research, 2 that any charge up to $ .50 per page depending on the county and the devices used was a reasonable and legal cost of copying a public record based upon the actual cost of reproduction. " Mr. Blevins indicated that the Association acknowledged that any charge over $ .50 per page "would exceed the reasonable cost of reproduction in any county." 3

In closing, Mr. Blevins asserted on behalf of the Clerks Association that the Association had determined "that it was just plain asinine to undertake the time and expense of a detailed cost accounting study being done in each county so as to ascertain the specific actual cost of copying for each type of copying equipment in each county," and had opted "to standardize the copy charge in the state in a quest for as much uniformity as possible . . . ." We agree. However, in our view a standardized fee of $ .10 per page, rather than any charge up to $ .50 per page, more accurately represents a reasonable copying fee that is consistent with published case law, numerous decisions of this office, and the fee established by regulation for state administrative agencies. 4 In so holding, we reaffirm an agency's right to impose a higher copying fee if it can substantiate that fee on the basis of the cost factors set forth in KRS 61.874(3).

The Meade County Clerk maintains that she can substantiate actual costs, as defined in KRS 61.874(3) and KRS 61.870(7) and (8), of $ .25 per page. She bases this fee on a cost analysis prepared by Noble Miller, T & W Office Products, which states:

The figures below are based on your last copier purchase

$ 9179.00

36 Mo. Lease = $ 318.51

$ 318.51 divided by 2000 copies per month = .1593

Service .012 per copy

Paper $ 28.50 = 5000 sheets

The following figures are baled [sic] on 2000 copies per monthCopier lease $ 318.51 divided by 2000 =.1593 per copyPaper $ 30.00 divided by 5000 =.006 per copyFull service.12 per copyTotal cost per copy.1773 per copyPlus electricPlus wasted copiesThe average cost per copy is around .25 per copy

Our calculations, using these figures, yield a different outcome. To begin, there is an error in the calculation of the monthly cost of the lease. Mr. Miller indicates that the 36-month lease of the $ 9179.00 copier is equivalent to $ 318.51 per month. Our calculations yield a result of $ 254.97 per month. The $ 254.97 figure divided by 2000 copies per month is equivalent to $ .1274 per copy rather than the $ .1593 figure Mr. Miller provided. 5 Rounding our figure up, we arrive at $ .13 per page. Mr. Miller indicates in line six of his cost analysis that the cost of paper is $ 28.50 for 5000 sheets, but uses a figure of $ 30.00 divided by 5000 sheets to arrive at a cost of $ .006 per sheet. Assuming the $ 28.50 figure is correct, our calculations based on $ 28.50 divided by 5000, yields a result of $ .0057, or slightly more than half a cent per sheet (as opposed to Mr. Miller's final figure of $ .006 per sheet) . Mr. Miller also factors in a $ .012 charge per copy for "full service" without indicating how he reached this figure, what it represents over-and-above the normal service agreement provided under the lease, or how it can otherwise be justified, to arrive at a figure of nearly $ .18 cents a copy. He then adds an unquantified amount for "electric" and "wasted copies" to justify an average cost per copy of $ .25 per copy. We reject his unsubstantiated inclusion of unquantified electric cost, and find absolutely no support in the law for the inclusion of a "full service" charge or a charge for "wasted copies."

Taken together, the actual cost per copy incurred by the Meade County Clerk is $ .1331 per page. n6 Factoring in the incremental cost of electric per copy and toner per copy, the clerk can substantiate actual costs of no more than $ .15 per copy. The figures supporting Mr. Miller's cost analysis are either inflated or based on cost factors which are unsupported in the law. Having failed to substantiate that $ .25 per page represents the Meade County Clerk's actual costs incurred, we are left with no alternative but to find that the $ .25 copying fee she imposed is excessive and, as a corollary of this finding, to advise the clerk that KRS 61.874(3) requires her to adjust her copying fee to reflect her actual costs ($ .15 per page). Given the fact that the Meade County Clerk's office also contains an older copier capable of reproducing records at a reduced cost, we believe that the better practice would be to impose a copying fee of $ .10 per page based on the reasoning found in 99-ORD-40.

In 99-ORD-40 this office was asked to resolve a dispute concerning the propriety of a ten cents per page copying charge prescribed by the Fayette County Public Schools. The complainant asserted that commercial photocopying companies charged between $ .07 cents per copy and $ .08 cents per copy, and that it must therefore be inferred that the school system's copying charge was excessive. The school system substantiated actual costs of $ .023, including "the machine, service, toner, and paper," arguing that the additional amount charged reflected "overhead costs." We affirmed the school system's position, observing:

What particular private commercial photocopy companies charge per copy or what other public agencies may charge per copy is not controlling in this instance. Under the directives set forth in KRS 61.880(2) and (4), we are limited to ruling as to the validity of what this particular agency did in this particular fact situation.

99-ORD-40, pp. 3, 4.

With reference to the ten cents per page copying charge that has been approved by the courts and this office, as well as by administrative regulation, we stated:

In Friend v. Rees, Ky.App., 696 S.W.2d 325 (1985), the Court of Appeals held that ten cents a copy was a reasonable fee for reproducing standard hard copy records. The Attorney General has adopted this position of the court in a long line of decisions. See, e.g., OAGs 88-74, 89-9, 91-98, 91-210, 92-79, 92-ORD-1491, 93-ORD-44, 94-ORD-43, 95-ORD-82, 96-ORD-3, 98-ORD-88, [01-ORD-50; 01-ORD-114].

The Finance and Administration Cabinet, pursuant to KRS 61.876(3), has promulgated an administrative regulation, 200 KAR 1:020, which establishes the general rules to be followed by all state administrative agencies in affording public access to their public records. 200 KAR 1:020, Section 3(1), in relevant part, provides:

Absent further direction from the courts or the legislature, and in light of this long standing recognition by the courts, this office, state government, and other public agencies, that ten cents a page is a reasonable fee for copies of public records, we are reluctant to change this bright line threshold standard. If changes in the law are to be made, they should be made by the legislature and if subtle interpretations are to be made, they should be made by the courts. OAG 80-54.

99-ORD-40, pp. 4, 5. In closing, we recognized:

the practical difficulties that agencies face in trying to estimate the cost of photocopying and the corresponding difficulties this agency would have in determining whether the estimate reflects the agencies' actual cost. We have little doubt that the floodgates would be opened to open records appeals premised on the reasonableness of the ten cent copying charge. If a standard, other than ten cents per page, is to be adopted, it must be done by the courts or the legislature.

99-ORD-40, p. 6; see also, 01-ORD-136 (holding that city clerk failed to substantiate actual copying costs of $ .20 per page, that figures she provided substantiated actual copying costs of only $ .04 per page, but that she could charge $ .10 per page based on 99-ORD-40 and authorities cited therein).

As in the decisions cited above, "[W]e continue to ascribe to the view that in approving a $ .10 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. 6. We concur with the Clerks Association in its position that public officials and offices should not be put to "the time and expense of a detailed accounting study . . . so as to ascertain the specific actual cost of copying for each type of copying equipment," but, as noted, we do not agree that KRS 61.874(3), as construed by the courts and this office, supports a standardized fee of "any charge up to $ .50 per page." Because she has substantiated copying fees of $ .15 per page, the Meade County Clerk may impose a fee in this amount without subverting the intent of the Open Records Act, short of denial of inspection, as contemplated in KRS 61.880(4). Nevertheless, given the variables that are inherent in her cost analysis, including the number of copies she makes a month and the copier she elects to make them on, we believe she should consider recalculating her fee to conform to the $ .10 per page copying fee which the courts, state administrative agencies, and this office have approved. In so holding, we reiterate that nothing in the record on appeal supports a finding that the clerk acted in bad faith.

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

Darren SipesMeade County AttorneyMeade County Courthouse516 Fairway DriveBrandenburg, KY 40108

Katherine MercerMeade County Clerk Meade County CourthouseBrandenburg, KY 40108

Gaylan L. SpurlinKentucky County Clerks AssociationP.O. Box 4156Frankfort, KY 40604-4156

Don BlevinsFayette County Clerk 162 East Main StreetLexington, KY 40507

Footnotes

Footnotes

1 Ms. Bowen subsequently raised the issue of whether the county clerk could be compelled to use an older and less costly copying machine that is available in her office in reproducing copies of records obtained under the Open Records Act. While we trust that agencies will take appropriate measures to minimize the cost to the public of reproducing nonexempt records, we do not believe that the Open Records Act can be construed to compel agencies to select one copier over another.