Request By:
Rae Anna T. Kirby
Joe Gaddie
Richard Deye
Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Butler County Sheriff's Department subverted the intent of the Open Records Act, short of denial of inspection, by imposing excessive copying fees on Rae Anna T. Kirby in contravention of KRS 61.874(3). Based on 01-ORD-136, and the authorities cited therein, we find that the imposition of a twenty-five cents per page copying fee constituted a subversion of the intent of the Act within the meaning of KRS 61.880(4). 1 A copy of 01-ORD-136 is attached hereto and incorporated by reference.
On July 15, 2008, Butler County Sheriff Joe Gaddie required Ms. Kirby to pay twenty-five cents per page for records he reproduced for her in response to her July 2, 2008, request for "all written policies and procedures enacted by [Sheriff Gaddie] and/or followed by [his] department, including, but not limited to, firearms/weapons policies." Contesting the imposition of these fees, Ms. Kirby initiated an open records appeal to this office.
In supplemental correspondence directed to this office, Sheriff Gaddie expressed the belief that "this fee would be within reasonable guidelines established by the Secretary of Justice and Public Safety and is not an imposition of excessive fees." Shortly thereafter, Butler County Attorney Richard J. Deye elaborated on the Sheriff's position. Noting that KRS 61.874 permits public agencies to prescribe a reasonable fee for copies, but is not specific as to what that fee should be, he observed:
I really have no idea what the cost of producing the records is. There is obviously a personnel cost in producing the records and photocopying the records. There is also the cost of paper, toner, etc. as well as a proportionate charge for the depreciation or utilization for the photocopy machine itself. Someone smarter than I (and with more time on their hands) is going to have to determine whether or not twenty-five cents per page is an unreasonable charge for a photocopy.
We are fortunate in having a long line of open records decisions to guide us in determining that, in the absence of specific proof that Sheriff Gaddie's actual costs, "including the costs of the media and any mechanical processing costs incurred by the public agency, but not including the cost of staff required ," 2 exceed ten cents per page, he may only charge ten cents per page under the rule announced in Friend v. Rees, 696 S.W.2d 325 (Ky. App. 1985), and numerous decisions of this office adopting this rule. KRS 61.874(3) (emphasis added).
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). 3 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 .
(Emphasis added.) 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 4 and any mechanical processing 5 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. See also, 03-ORD-224 and 08-ORD-006.
Consistent with the position set forth above, and based on the reasoning found in 01-ORD-136, we find that the twenty-five cents per page copying charge established by the Butler County Sheriff is unreasonable and must be reduced to ten cents per page unless his office 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.
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.
2 KRS 61.874(3).
3 KRS 61.874(3) has undergone minor revision through the years. Those revisions do not alter our resolution of this dispute.
4 "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.
5 "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.