Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Paducah subverted the intent of the Open Records Act, short of denial of inspection, by imposing excessive copying fees for the production of records requested by David Heflin. Based on the authorities cited, and the estimated costs involved in copying records, we conclude that the fees imposed were excessive.
On October 11, 2004, Mr. Heflin requested copies of "all paper work and plans of structure, any state, federal or historical grants applied for or gotten by City of Paducah on behalf of these properties at 502 through 508 Broadway (Arcade) 510 through 514 Broadway (Columbia)." On October 12, 2004, Paducah City Manager James W. Zumwalt responded to Mr. Heflin's request, advising him as follows:
You requested all paperwork of any State, Federal or Historical Grant applied for or received by the City for the Columbia and Arcade Theatre buildings, the City has received no grants for these buildings. We have submitted an application to the Heritage Preservation Services, National Park Service for a Save America's Treasures Grant. A copy of the application is attached.
You requested a copy of the plans for the buildings. Mr. Keiler has loaned Paducah Main Street a set of original plans and a set of subsequent renovation plans for the building. Some of the documents are in very fragile condition. The documents are available for inspection by appointment in the City Planning Department.
If you would like copies of the plans sheets, we can get those made for you for a charge of approximately $ 2 to $ 3 per sheet payable in advance. Before copies are made, Paducah Main Street will require a release letter from Steve Keiler, the owner of the plans. Please advise me if you want a full set of the plan sheets copied for you.
Shortly thereafter, Mr. Heflin initiated this appeal objecting to the $ .15 per page copying charge imposed by the City for records in a standard paper format 1 and the $ 3.00 per page copying charge imposed by the City for 24" x 36" plan sheets.
In correspondence directed to this office following commencement of Mr. Heflin's appeal, Mr. Zumwalt elaborated on the City's position. Acknowledging that a $ .10 per page ceiling generally applies to copies of records in standard paper format, he maintained that KRS 61.874(3), incorrectly cited as KRS 61.384(3), authorizes public agencies "to charge a reasonable copying fee that represents the media and mechanical costs [sic] of reproducing certain items." Continuing, he observed:
This statute is mirrored by the City of Paducah, Kentucky's Code of Ordinances, Chapter 39.13. In the current case of Mr. Heflin, many of the items he has requested, specifically the original plans for buildings are extremely fragile. The City made the documents available for his inspection. He chose not to inspect the documents but verbally requested City staff to make a copy of them for him. Because of the condition of the documents, we had to take them to a local blueprint company to have them scanned on a large flatbed scanner. The cost of this service was $ .97/sheet . . . . To recover our cost of supplies the City charges $ 1.50 to reproduce 22"x34" construction document sheets. The total charge that Mr. Heflin is protesting is $ 2.50/22"x34" sheet.
In support of the cost of service imposed by the commercial blueprint company, Mr. Zumwalt attached a copy of the invoice.
Shortly after the City of Paducah submitted its supplemental response, this office propounded a series of questions to the City pursuant to KRS 61.880(2)(c). 2 Those questions, and the City's responses, are set forth below:
1. What are the "cost of supplies" that the city is attempting to recover in its $ 1.50 charge to reproduce 22"x34" construction document sheets?
[The breakdown of costs follows]:
Documentation Copy for Large Maps, Plats, etc.
Ordinance #96-2-5445
Documentation Duplication Fee considers:
Oce 7055 Engineering Copier Total Costs for Copies--such as:Costs Per YearPaper36 Inch x 500 LF$ 39.95 10/yrCosts Per Year:$ 399.50TonerB1 Toner$ 238.41 2/yrCosts Per Year:$ 476.82Repair-MaintApprox per Year$ 300.00 1/yrCosts Per Year:$ 300.00Approx Total--CostPer Year$ 1,176.32Approx Total Cost Per 24"by 36"Copy @ avg of 2 copies per day$ 1.62 *Approx Total Cost Per Square Foot$ 0.27* This amount is for materials only, does not includestaff time or labor.Note: As comparison--Paducah Blueprint Charges $ 0.35per square foot for larger map copies.
2. Did the local blueprint company only provide the scanning device and not the supplies?
YES
3. Does the city's "Inspection Department" charge $ .15 per page for standard 81/2 x 11 inch copies and if so, what are the actual costs supporting this charge?
Yes, the City charges $ .15 per page. Staff memory recalls several years ago the City established a charge of $ .50 per page. After receiving some complaints, the City cost was reviewed and reduced to $ .15. After researching OAG's the City will reduce copying fees for Open Records to $ .10 per 81/2 x 11 black and white pages. We will also reimburse Mr. Heflin for the original copies he paid on October 12, 2004.
4. We also ask that you respond to Mr. Heflin's statement that there are "50 plans in Planning that (he has been told) will cost (him) $ 3.00 each".
When Mr. Heflin first requested the plans he was told an approximate cost would be between $ 2.00 and $ 3.00. As stated in my letter dated October 25, the charge would be $ 2.50. The City has copied the 50 plan sheets requested by Mr. Heflin and are holding them for him to pick up.
While we applaud the City's decision to reduce its copying charges for records in a standard paper format to insure consistency with KRS 61.874(3), as construed by the Kentucky Court of Appeals in Friend v. Rees, Ky. App., 696 S.W.2d 325 (1985) and numerous decisions of this office, our review of the breakdown of costs submitted by the City does not support the copying charge of $ .25 per square foot currently imposed under Ordinance #96-2-5445.
The City indicates that the approximate total cost for 24"x 36" copies, or copies that are two feet by three feet, is $ 1.62. This figure is based on the assumption that, on average, the City makes two copies per day. However, the figures used to support the cost calculations suggests that the City actually makes more than three times as many copies per day as claimed. Making three times as many copies reduces the cost per copy by two thirds (2/3). Simply stated, underestimating the number of copies made inflates the cost per copy.
In the itemized costs provided to this office, the City indicates that it uses ten rolls of "36 inch x 500 inch LF" per year. We assume that "LF" is shorthand for "linear feet. " Copy paper is therefore supplied in rolls that are 36 inches wide and 500 feet long. The copies for which the reproduction charge is assessed are 36 inches by 24 inches (2 feet) and each roll should make 250 copies. If the City is using ten rolls of copy paper per year, it is making 2,500 copies per year. This is an average of almost seven copies per day, including weekends, and the City's estimate of the number of copies made is substantially less than this, namely, two copies per day. As noted, the City estimates its total costs, including toner and repair/maintenance, at $ 1,176.32. If the City does, in fact, make 2,500 copies per year (as the figures provided suggest), the actual cost per copy is $ 0.4705 (1,176.32 divided by 2,500), or approximately 7.8 cents per square foot (dividing .4705 by 6 because each 3' by 2' copy contains six square feet) and not $ .25 per square foot.
It appears that the City derived its average cost by underestimating the number of copies made at two per day, and dividing the cost figure already calculated ($ 1,176.32 per year) by approximately 730 (2 copies per day times 365 days per year). However, the itemized cost figures the City submitted indicate that it is making substantially more copies per year and the cost per copy is correspondingly inflated.
Because the City of Paducah fails to substantiate that its $ .25 per square foot copying charge reflects the City's actual costs, we find that the $ 2.50 copying charge imposed on Mr. Heflin was excessive, and, as a corollary of this finding, that the City must, pursuant to KRS 61.874(3), recalculate its copying fee to reflect its actual costs of approximately $ .8 per square foot or approximately $ .50 per sheet ($ .8 per square foot by 6 square feet as opposed to $ .25 per square foot by 6 square feet) . To this, the City may add the $ .97 per sheet commercial scanning charge 3 for a total cost of no more than $ 1.50 per copy. In so holding, we again attempt to strike 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. See also 99-ORD-40; 01-ORD-136; 02-ORD-218; 03-ORD-224; 04-ORD-100. Consistent with the reasoning set forth above, and the supporting authorities cited, we find that the City of Paducah subverted the intent of the Open Records Act, short of denying inspection, when it charged Mr. Heflin $ 2.50 per page for copies of public records, and that it is statutorily obligated to recalculate its copying charge to reflect its actual costs.
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.
Distributed to:
David HeflinP.O. Box 7222Paducah, KY 42002-7222
James W. ZumwaltCity ManagerCity of Paducah300 South 5th StreetP.O. Box 267Paducah KY 40220-2267
David DentonDenton & Keuler, LLP555 Jefferson Street, Suite 301P.O. Box 929Paducah, KY 42002-0929
Footnotes
Footnotes
1 The City of Paducah has since acknowledged its error in imposing copying charges of $ .15 for records in standard paper format and agreed to adjust the charge down to $ .10 per page. The City has also agreed to reimburse Mr. Heflin the overage for copies he obtained on October 12, 2004.
2 KRS 61.880(2)(c) provides:
The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation.
3 It appears that this is a one time cost which cannot otherwise be calculated into the City's copying charge for these particular records.