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 Cumberland's actions relative to Melinda Kimmel's August 2, 2005, open records request for copies of certain of the city's records violated the Open Records Act. For the reasons that follow, we conclude that the actions of the City were consistent in part and inconsistent with the Act and to the extent that the fifty cents per page copying fee which the City imposes exceeds its actual costs, the fee is excessive and subverts the intent of the Act.
In her letter of appeal to this office, dated August 11, 2005, Ms. Kimmel advised:
I am requesting an Appeal of the actions of the Mayor of the City of Cumberland, Kentucky. I certified a letter of request for Open Records (see attached) on August 3, 2005, which the Custodian of Records received on August 4, 2005. The same day August 4, 2005, the Mayor penned a letter in response to my request and forwarded it to the media (see attached).
Upon receiving the letter from Mayor Hatfield, a reporter from the Tri-City News contacted me for my response to the Mayor's letter. I informed him I had not received the letter, the reporter faxed a copy of the letter to me the same day.
I, to date, have yet to receive a response from the Mayor or his designee to my request stating reasons for his denial or possible ways for me to view the information other than the city making copies of records.
After receipt of notification of the appeal and a copy of the letter of appeal, S. Parker Boggs, attorney, provided this office with a response on behalf of the City, addressing the issues raised in the appeal. In his response, Mr. Boggs advised that the City intends to honor her request and had advised her to that effect in a letter mailed to her by the Mayor on August 8, 2005. In concluding his response, Mr. Boggs explained:
The City of Cumberland has not refused to honor the request. The public records are available for inspection in the office of the City Clerk during normal business hours. However, Melinda Kimmel requested that public records be photocopied and mailed to her. The City requests reasonable photocopy charge and postage before processing the thousands of pages of requested information.
In the August 8, 2005, letter to Ms. Kimmel, which Mr. Boggs attached to his response, the Mayor responded:
We have received your request for us to photocopy and mail public records to you that are readily available for inspection in the office of the City Clerk during normal business hours. Before we can mail them we must receive payment for the cost of copies and mailing (KRS 61.872), the estimated cost @ $ .50 per copy plus postage in the amount of $ 2,000.00; if the cost exceeds this amount you will be responsible for the remaining balance.
This request will take some time to honor because it could disrupt essential functions of the City and the City Clerk.
Upon receiving this fee we will proceed to take action on this response.
For the reasons that follow, we find that the City's response was consistent in part and inconsistent in part with the requirements of the Open Records Act.
We first address the issue as to whether the City properly responded to Ms. Kimmel's request. In her letter of appeal, dated August 11, 2005, Ms. Kimmel states that, with the exception of receipt of the August 4, 2005, letter, from a newspaper reporter, in which the Mayor responded to her request and forwarded it to the media, she had yet to receive a written response from the City. The City asserts that it mailed another response to Ms. Kimmel on August 8, 2005. Regarding disagreements of this nature between a requester and a public agency, this office, in OAG 89-81, stated:
This office cannot, with the information currently available, adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided. Indeed, such is not the role of this office under open records provisions. It seems clear that you have permitted inspection of some records [the requester] asked to inspect, and that copies of some records have been provided. Hopefully any dispute regarding the records here involved can be worked out through patient consultation and cooperation between the parties.
Insufficient information is presented on the written record before us on appeal for this office to resolve the factual dispute concerning the actual delivery and receipt of the responses of the City to Ms. Kimmel's open records request. See 03-ORD-061.
KRS 61.880(1) requires that an agency respond to an open records request in writing within three business days. To the extent that the City failed to provide Ms. Kimmel with a written response to her request in writing within three business days, it violated the procedural requirements of KRS 61.880(1). Mailing a response to the media would not constitute compliance with the Act.
Moreover, for the reasons that follow, we conclude that the City's policy of charging fifty cents per page is not a reasonable copying charge within the meaning of KRS 61.874(3). If a public agency charges more than ten cents per page, it has the burden of establishing that this is not an excessive fee. 94-ORD-43. An agency can only assess a reasonable copying charge for public records not to exceed its actual costs, excluding staff time required. Unless an agency can document that its actual costs are greater than ten cents per page, both the courts and this office have demonstrated an unwillingness to countenance higher copying charges. See, e.g.,
Friend v. Rees, Ky.App., 696 S.W.2d 325 (1985); 94-ORD-77.
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, supra, 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 charging 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 . . . which have a large number of copiers in many different buildings.
In the instant case, the City has indicated that it will provide Ms. Kimmel copies of its records at 50 cents per page. Unless the City can establish that its actual cost for reproducing records is fifty cents per page, based on the cost of media and mechanical processing as defined in KRS 61.870(7) and (8), the charge is excessive and subverts the intent of the Open Records Act. If the City continues to charge fifty cents per page, it must either substantiate the charge or recalculate its copying fee to conform to the requirements of KRS 61.874(3) and prior decisions of the courts and this office and charge for copies of public records accordingly. 1 In his response, Mr. Boggs indicated that the county clerks in Harlan County and surrounding counties (Bell, Leslie, Letcher, Knox) all charge $ .50 per page for photocopying of public records. The fact that similar copying charges are imposed by other agencies in other counties does not justify the City's position, or alter our view. Those other agencies may be equally in error under the reasonable fee provision of the Open Records Act.
In his response to this office, Mr. Boggs further advised:
Ms. Kimmel has requested sixteen (16) categories of information. The sixteen (16) categories of requested information approaches an unreasonable burden for the City to fulfill the request. The custodian estimates that the total number of copies to fulfill the request will exceed 4,000 pages! Under item 12, "Records on all taxes, paid and delinquent, for the City of Cumberland from January, 2003 to present;" it is [interpreted] by the custodian to request all property tax information which would exceed more than 2,000 pages alone for this one category of information. Pursuant to statute, the clerk has asked for prepayment of photocopy fees and postage in order to begin processing the request. . . .
The City is correct in its position that it can require prepayment for copies prior to mailing. KRS 61.872(3)(b). If Ms. Kimmel believes that the volume of records, which the City states is responsive to her request, involves more records than she is willing to pay for, she may consider resubmitting an open records request to the City and describing the precise records she seeks in definite, specific, and unequivocal terms. 00-ORD-79. As an alternative, the City has offered to make the requested records available for Ms. Kimmel's inspection in the office of the City Clerk during normal business hours, which is one of the means of records access contemplated by the Open Records Act. KRS 61.872(3)(a). Accordingly, the parties should continue to cooperate to resolve any differences or misunderstandings related to records sought.
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.
Melinda KimmelSEIU / NCF&OP.O. Box 711Greenville, KY 42345
Robin Smith, City Clerk City of Cumberland402 W. Main StreetCumberland, KY 40823
Carl Hatfield, MayorCity of Cumberland402 W. Main StreetCumberland, KY 40823
S. Parker BoggsButtermore & Boggs108 South First StreetP. o. Box 875Harlan, KY 40831-0875
Footnotes
Footnotes
1 KRS 61.874 is a residual and general statute, and applies where there is no other applicable fee statute. 96-ORD-3. The City has cited no specific statute that authorizes it to charge fifty cents per page for copies of public records. Thus, we hold that KRS 61.874(3) applies to the instant appeal.