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 Bowling Green Police Department subverted the intent of the Open Records Act, short of denial of inspection, and within the meaning of KRS 61.880(4), 1 by imposing excessive fees for copies of public records to which Bryan Reinhardt requested access on June 12, 2005. For the reasons that follow, we find that although the $ 98.20 fee which the Department originally imposed for 82 responsive pages and 18 responsive photographs was clearly excessive, the Department has since recalculated its copying fee to reflect its actual costs. 2 We therefore find that the Department did not, in the final analysis, subvert the intent of the Open Records Act.
KRS 61.874(3) authorizes public agencies to "prescribe a reasonable fee for making copies of nonexempt public records . . . which shall not exceed the actual cost of reproduction, including the costs of the media and any mechanical processing costs incurred by the public agency, but not including the cost of staff required." The agency may require advance payment of the prescribed copying charge, including postage where appropriate. KRS 61.874(1). It is therefore proper for a public agency to require prepayment of a reasonable copying charge for nonexempt public records.
It is not, however, proper for a public agency to impose a copying charge which exceeds its actual costs. At page 3 of OAG 82-396, the Attorney General observed:
Since the cost of staff time required is excluded from the fee which may be charged for copies of public records, the fee charged for copies should be based on the actual expense to the agency, such as the cost of maintaining copying equipment by purchase or rental and the supplies involved.
In Friend v. Rees, Ky. App., 696 S.W.2d 325 (1985), the Kentucky Court of Appeals held that ten cents per page is a reasonable copying charge under the Open Records Act. For this reason, the Attorney General has consistently held that unless an agency can substantiate that its actual cost for making copies is greater than ten cents per page, any copying charge which exceeds this amount is excessive. OAG 80-421; OAG 82-396; OAG 84-91; OAG 87-80; OAG 89-9; OAG 91-193; OAG 91-200; 92-ORD-1491; 94-ORD-77; 98-ORD-95; 01-ORD-136.
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, this office has observed:
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:
Copies of any written material shall be furnished, on request, to any person requesting them, on payment of fee of ten (10) cents a page for each record copies; copies of photographs, maps and other nonwritten material, and records stored in computer files or libraries, shall be furnished to any person requesting them on payment of a fee equal to the actual cost to the agency of producing the copies. (Emphasis added.)
99-ORD-40, p. 3, 4.
Reaffirming the reasonableness of the ten cents per page copying charge, we have concluded:
[T]he courts, state government, and 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.
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, p. 4, 5. In sum, the Attorney General has 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.
Based on the foregoing analysis, we find that although the original fee imposed by the Department was excessive, its subsequent recalculation of the fee in a manner consistent with the cited authorities mitigated this error. Assuming the Department can substantiate that the actual costs incurred for developing the 35 mm roll of film containing the photographs Mr. Reinhardt requested is equivalent to $ 10.00, 3 we find no error in the imposition of this fee as an "actual cost of reproduction" per KRS 61.874(3). It is therefore the decision of this office that in light of the corrective measure subsequently undertaken, the Bowling Green Police Department cannot be said to have subverted the intent of the Open Records Act within the meaning of KRS 61.880(4).
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.
Bryan L. Reinhardt, # 173109Kentucky State PenitentiaryP.O. Box 5128, 3 Cell, 12-R-7Eddyville, KY 42038
Judy MangoldRecords Supervisor911 Kentucky StreetBowling Green, KY 42101
H. Eugene HarmonCity Attorney328 East 10th AvenueP.O. Box 430Bowling Green, KY 42102-0430
Footnotes
Footnotes
1 KRS 61.880(4) states:
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.
2 On behalf of the Department, Bowling Green City Attorney H. Eugene Harmon advises that upon receipt of notification of Mr. Reinhardt's appeal, he consulted with the Department and City Clerk and the decision was made to recalculate the proposed copying fee. Mr. Harmon indicated that Mr. Reinhardt would be notified that "the cost to obtain copies of the 18 pictures he requested will be $ 10.00 which represents what we believe to be the cost of the processing of a 35 mm roll of film plus $ .10 per page for the 82 pages he requested."
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3 Although the record is unclear on this point, it appears that the roll of film containing responsive photographs has never been developed and that the Department proposes to do so for the first time in order to fulfill Mr. Reinhardt's request. The Department may not, of course, impose on Mr. Reinhardt developing costs previously incurred in the normal course of business, but may only impose the cost of reproducing the photographs if they were previously developed.
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