Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Brownsboro Village 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 charges on Lowry Watkins for copies of certain audit reports of the City. Based on 01-ORD-136, and the authorities cited therein, we conclude that to the extent the City charged Mr. Watkins for the cost of mailing the records to him via certified mail, the fee imposed was excessive. A copy of 01-ORD-136 is attached hereto and incorporated by reference.
By letter dated May 15, 2004, addressed to the City, Mr. Watkins stated: "For copies of audits I have been charged $ 50.00. I think I was overcharged $ 31.30. I only owed $ 11.70 for copies (10 [cent] page) and $ 7 for postage"
In his letter of appeal to this office, May 25, 2004, Mr. Watkins advised that as of that date, he had yet to receive a response from the City. In addition, he argued that some audits were mailed to him "by certified mail with return receipt unnecessarily running the costs up ($ 4.30 vs. $ 1)."
After receipt of notification of the appeal and a copy of the letter of appeal, Robert L. DeSensi, Jr., Mayor, City of Brownsboro Village, provided this office with a response to the issues raised in the appeal. In his response, Mayor DeSensi explained:
Please accept this fax in response to the open records request of Mr. Watkins. After consulting with Brownsboro Village treasurer Brian Shanks, I am unable to confirm any payments received from Mr. Watkins in the amount of $ 50. The only confirmed payment has been in the amount of $ 5.90.
To aid in the timely resolution of this matter, it is necessary for Mr. Watkins to provide more information on this issue. If possible, it would be most helpful to know an approximate time period of when this payment of $ 50 was sent, what the check number was and for what records it applied.
I firmly stand by Mr. Shank's decision to send financial records by certified mail. In any legal matter it [is] common practice to ensure that documents are received by the proper party. By using certified mail, Brownsboro Village is able to protect its financial reports (which contain sensitive information) as well as confirm that Mr. Watkins received his requested information.
Once again, I ask that Mr. Watkins contact me directly with these issues. The City of Brownsboro Village has not received Mr. Watkins' letter dated May 15, 2004. As with the previous open records requests, the "Notification to Agency of Receipt of Open Records Appeal" is the first knowledge I have of these issues. It should be noted that the correct mailing address for the City of Brownsboro Village is in zip code 40207 not 40206.
Addressing first the failure of that City to respond to Mr. Watkins' original request, we have insufficient information to resolve the issue as to whether the City received the request or whether it was misdirected due the mailing address to the City. Accordingly, we do not address this procedural issue. See 03-ORD-061.
Next we turn to the issue of whether the City's charge for the cost of public records was excessive. KRS 61.874(3) 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 2 and any mechanical processing 3 cost incurred by the public agency, but not including the cost of staff required.
In general, the courts and this office have approved a reasonable copying fee of no more than ten cents per page. In 01-ORD-136, we concluded that the city subverted the intent of the Open Records Act, within the contemplation of KRS 61.880(4), when it charged the requester twenty cents per page for copies of public records. We found that the city was statutorily obligated to recalculate its copying charge to reflect either its actual costs or no more than ten cents per page. In approving the latter charge, we reaffirmed the principle that "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 the City of Brownsboro Village can substantiate its actual costs to reproduce the audits Mr. Watkins requested was $ 50 or the amount charged reflect its actual costs, it must recalculate its copying fee to conform to the requirements found at KRS 61.874(3) as construed in 01-ORD-136 and the authorities cited therein. As noted in Mayor DeSensi's response to this office, there remain certain factual issues to be resolved between the parties relating to the records requested and the amount charged by the City. Accordingly the parties should cooperate with each other to resolve these issues.
We do agree with Mr. Watkins' argument that the City's sending the requested records by certified mail and charging the requester for that cost is excessive and unnecessarily adds to the cost to the public for access to public records. While there may be circumstances on occasion for sending public records by certified mail, the extra cost in doing so must be absorbed by the public agency. Regular mail delivery is sufficient under the Act. KRS 61.872(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 proceeding.
Larry Watkins, Jr.4949 Brownsboro Road, Suite 231Louisville, KY 40222-6424
Robert DeSensi, Jr., MayorCity Of Brownsboro Village310 Lotis WayLouisville, KY 40207
Footnotes
Footnotes
1 KRS 61.880(4) provides as follows:
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 "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.
3 "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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