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 Jackson 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's February 11, 2003 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 February 11, Mr. Skaggs requested copies of financial records 2 relating to the dog warden's yearly compensation and the dog pound's yearly operational costs for fiscal year 2001-2002. Jackson County had responded to earlier requests submitted by Mr. Skaggs, advising him that his request for records would be honored upon receipt of a twenty-five cents per page copying charge. Jackson County did not issue a formal response to his February 11 request. On appeal, Mr. Skaggs challenges Jackson County's position, asserting that the proposed copying charge is clearly excessive. 3 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). 4 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 5 and any mechanical processing 6 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.
Jackson County seeks to impose a copying charge of twenty-five cents per page on Mr. Skaggs. Consistent with the position set forth above, and based on the reasoning found in 01-ORD-136, 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.
Randy SkaggsP. O. Box 1Webbville, KY 41180
Tommy SloneJackson County Judge/ExecutiveJackson County CourthouseP.O. Box 175McKee, KY 40447
George T. HaysJackson County AttorneyWater StreetP.O. Box 748McKee, KY 40447
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.
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2 Those records were specifically identified as:
(1) financial records or documentation indicating, referring to or pertaining to the " dog warden's " yearly compensation:
a. the dog warden's weekly or monthly salary or compensation plus a total indicating their complete and combined annual monetary compensation (we need either copies of cancelled checks - including check number and date issued - or a computer readout of the employee's payroll records - including check number and date issued, etc.) for the entire fiscal year of 2001-2002.
(2) financial records or documentation indicating, referring to or pertaining to the " dog pound's yearly operational costs:
a. the amount of money paid out by the county or that it spent altogether on the operation of its own dog pound or either paid to another county, individual or organization for the usage of their dog pound or kennels for the entire fiscal year (including a comprehensive tally and categorical itemization of those yearly expenditures if county owned and operated); we need either copies of cancelled checks, receipts, appropriation ledgers or specific and verifiable bookkeeping entries showing payment (which would also include individual check numbers and dates written) by the county for the year-round operation of its own dog pound or for payments made to another county, individual or organization for the services of a dog pound for the entire fiscal year of 2001-2002.
3 In 98-ORD-52, this office affirmed the Jackson County Fiscal Court's requirement that Mr. Skaggs pay a ten cents per page copying fee in advance of receiving copies of records relating to animal control for the previous fiscal year. The fiscal court offers no explanation for the substantial increase in its copying fee, nor does the fiscal court attempt to substantiate that its actual costs are equivalent to 25 centers per page.
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4 KRS 61.874(3) has undergone minor revision through the years. Those revisions do not alter our ultimate resolution of this issue.
5 "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.
6 "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.
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