Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The sole question presented in this appeal is whether the Elsmere Police Department subverted the intent of the Open Records Act, short of denial of inspection, by imposing a charge of fifteen (15) cents per page for copies of public records. In responding to Chris Henson's written request for specified "Offense/Incident Reports," Joyce Jump, Records Clerk, advised that nine pages were being provided "at 15 cents per page" without explanation. Mr. Henson subsequently initiated the instant appeal challenging the Department's imposition of a 15 [cents] per page copying fee which, in his view, is excessive. Consistent with
Friend v. Rees, Ky. App., 696 S.W.2d 325 (1985) and prior decisions of this office, including 01-ORD-136 and 08-ORD-171, this office agrees, given the lack of substantiation, that imposition of a 15 [cents] per page copying fee subverts the intent of the Act within the meaning of KRS 61.880(4).
Upon receipt of Mr. Henson's appeal, Paul R. Markgraf responded on behalf of the Department in his capacity as Elsmere City Attorney, acknowledging that a charge of 10 [cents] was previously charged for copies; however, between [Mr. Henson's] prior request[s] and his Friday, February 27, 2009 request, the City of Elsmere reviewed its policy for photocopying charges, examining the cost of paper, photocopy toner, the cost of the copier maintenance and a comparison of other public agencies. " According to Mr. Markgraf, the "result of this review was the preparation of an Open Records Policy Book which is available at the City Building and the Police Department." A copy of this booklet is attached to his response along with a copy of "Executive Order #4-2008 setting fees under KRS 61.874(3)," which "sets the charge for photocopies at 15 [cents] per page, effective September 9, 2008." 1 To support of his client's position that "15 [cents] per page is not unreasonable," Mr. Markgraf relies upon evidence that "25 [cents] per copy is a standard charge" at the Circuit/District Court Clerk's Offices in Kenton County, Campbell County, Boone County, and Grant County, asserting that 15 [cents] per copy "is a relative [b]argain." 2 In closing, he notes that Mr. Henson "was sent the records with a bill as courtesy; payment in advance was not required." Absent proof to substantiate imposition of this fee beyond a general reference to factors considered in arriving at 15 [cents], and the "comparison" to fees imposed by judicial agencies in surrounding counties, which is legally irrelevant, 3 this office must respectfully disagree. Compare 02-ORD-218 (holding that Meade County Clerk failed to substantiate actual cost of 25 [cents] per page, but did substantiate actual cost of 15 [cents] with cost analysis provided).
In
Friend v. Rees, Ky. App. 696 S.W.2d 325 (1985), the Kentucky Court of Appeals held that 10 cents per page is a reasonable charge for the reproduction of standard hard copy records. For this reason, the Attorney General has consistently held that unless a public agency can substantiate that its actual cost for making photocopies, i.e., reproduction, is greater than 10 [cents] per page, any copying charge in excess of this amount is presumptively excessive. 06-ORD-147; 05-ORD-194; 04-ORD-217; 03-ORD-224; 01-ORD-114; 99-ORD-186; 94-ORD-77; 92-ORD-1491; OAG 91-200; OAG 91-193; OAG 89-9; OAG 87-80. Because the Department has failed to substantiate that 15 [cents] for each page reflects the actual costs incurred in reproducing the requested public records, this office must conclude that the fee is excessive and subverts the intent of the Act within the meaning of KRS 61.880(4). On this issue, the reasoning contained in 01-ORD-136 and 08-ORD-171 is controlling; a copy of each decision is attached hereto and incorporated by reference. In approving a charge of ten cents per page, both 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. Absent further direction from the courts or the General Assembly, "and in light of this longstanding 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, " this office is reluctant to change "this bright line threshold standard." 99-ORD-40, p. 4. 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." Id., citing OAG 80-54. Unless the Department/City can substantiate that the actual cost of reproducing the records is equal to 15 [cents] per copy, the Department/City must recalculate its copying fee to conform to the requirements of KRS 61.874(3) as construed in 01-ORD-136 and the authorities upon which that decision is premised.
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:
Chris HensonChief Timothy D. GreeneJoyce JumpPaul Markgraf
Footnotes
Footnotes
1 In 08-ORD-183, issued on September 3, 2008, this office advised the Department, in accordance with Friend v. Rees, supra, and 01-ORD-136, that a fee of 10 [cents] per page for hard copy records is a "reasonable fee. " 08-ORD-183, p. 9, note 8.
2 This office has no jurisdiction over the courts. See 98-ORD-6.
3 See 08-ORD-006 (finding that amount charged by medical providers in Kentucky "is completely irrelevant under the Open Records Act" in determining whether a fee is "reasonable" under KRS 61.874(3)).