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 Kentucky Historical Society subverted the intent of the Open Records Act, short of denial of inspection and within the meaning of KRS 61.880(4), 1 in assessing a $ 1,995 reproduction fee for "digital copies" of "each of the governors' portraits found in the Hall of Governors at the Kentucky History Center." For the reasons that follow, we find that fees assessed by KHS constitute a subversion of the intent of the Act.
By letter dated July 17, 2008, Kentucky Gazette Publisher and Editor, Laura Cullen Glascock, requested "a copy of each of the governors' portraits in the Hall of Governors in the Kentucky Historical Society." She explained that it was her "understand[ing that] the History Center has digital copies of each portrait. " On July 21, 2008, KHS responded to Ms. Glasscock's request as follows:
Since you required a specific format for these files, please see our Rights and Reproduction Form located online at: http://history.ky.gov/pdf/Library/Rights&Repros.pdf. Thereproduction fee for a standard digital file (equivalent to 8x10 - 300 dpi) is $ 10 per image. Our right and use fee for publishing purposes is $ 25 per image, for a total of $ 35 per image. Pursuant to KRS 61.874(3) & (4), KHS also requires that commercial enterprises sign a use agreement for these images and cite the Kentucky Historical Society each time an image is used.
For example, the total charge for all images in our Hall of Governors collection - at a 300 dpi resolution - would be $ 1,995. If you do not require specific reproduction quality, you can pull these images from our Web site free-of-charge. In all cases, we do ask that the Kentucky Historical Society be properly credited in the photo caption.
On appeal, Ms. Glasscock challenges KHS's position, asserting that the proposed $ 1,995 reproduction fee is excessive "for the simple task of burning the images onto a compact disc" "since the portraits of all of Kentucky's past governors exist in a high-resolution electronic format. " She notes that "KRS 61.870 defines public records as all books, papers, etc. 'regardless of physical form or characteristics'" and that the same provision "exempts newspapers from 'commercial purpose.'"
In supplemental correspondence directed to this office following commencement of Ms. Glasscock's appeal, KHS amplified on its position. On behalf of KHS, Tourism, Arts, and Heritage Cabinet Assistant Counsel, Misty Dugger Judy, advised:
Since Ms. Glasscock did not elaborate on the type of digital file, nor the size or quality of the images she was requesting in her open records request, or identify whether the request was for a commercial or noncommercial use, KHS responded by advising of three different options for acquiring digital copies of the portraits held in our archives collection. First, KHS advised that the reproduction fee for a standard digital file (equivalent to 8x10 - 300dpi) was $ 10 per image for non-commercial use. Second, KHS advised the standard rights and use fee for commercial publishing purposes is an additional $ 25 per image, for a total of $ 35 per image for commercial purposes. The letter further advised that pursuant to KRS 61.874, KHS requires that commercial enterprises sign a use agreement for these images and advised the form could be found at http://history.ky.gov/pdf/Library/Rights&Repros. pdf. Finally, Ms. Glascock was advised that if she did not require specificdigital quality reproduction, she could pull the images from KHS' website free-of-charge. The letter closed by asking Ms. Glasscock to advise KHS on how she wished to proceed. Ms. Glasscock did not respond to this letter.
. . .
The fees at issue by Ms. Glasscock are for a specified service offered in regard to the records kept in the KHS artifacts collection. KHS also contends that the fees charged under its Right and Reproduction schedule are not excessive. (See Rights and Reproduction form attached hereto as exhibit "C") Pursuant to KRS § 61.874(3), if a public agency is asked to produce a record in a non-standardized format, or to tailor the format to meet the request of an individual or a group, the public agency may at its discretion provide the requested format and recover staff costs as well as any actual costs incurred. KRS § 61.874(4)(c) further explains that the above mentioned fee may be based on cost to the public agency of media, mechanical processing, and staff required to produce a copy of the public record or records; and cost to the public agency of the creation, purchase, or other acquisition of the public records.
The public records requested by Ms. Glasscock consist of digital photographic copies of portraits held within the artifacts collection of the Kentucky Historical Society. KHS's fees are not excessive in light of the unique nature and substantial cost associated with the digital imaging process and creation of its artifact database. For the creation of each digital image in the collection, the artifact must be taken from display or storage areas within KHS and photographed numerous times. The films are then processed, labeled, sleeved, examined, and ultimately scanned into an electronic artifact collection database. Since a museum quality image is needed the current images are maintained in a 1200 dpi resolution. The currently ongoing project to digitalize KHS's entire collection is an extremely labor intensive and expensive undertaking. For example, KHS currently pays an average monthly fee of $ 2000-$ 3000 to COT for electronic storage of this high resolution images. A cost that will continue to rise as the collection continues to be digitalized and the database grows in size.
When a request is received by KHS to provide a specific size and dpi resolution quality digital copy of an image, the staff at KHS is required to open the scanned copy of the image, flatten the image, resize the image, save in an electronic format compatible with the request and close the image. This procedure would be repeated for each image requested and then files would then be burned to a CD or DVD. The reproduction fees collected for specialized noncommercial and commercial use of digital images help to fund the project to digitalize the KHS collection.
KHS charges fees for specialized requests to defray the costs of the digitalized archive collection database and to allow it to continue. The rights and use fee of $ 35 has been properly established by KHS and is only charged to those who wish to use the digital reproductions of copyrighted materials for commercial purposes. If the requested use is noncommercial, then the reproduction fee for a standard digital file (equivalent to 8x10 - 300 dpi) is $ 10 per image due to the request being for a non-standardized format of the public record. While Ms. Glasscock is correct that under KRS 61.870 newspapers are exempt from the commercial purposes definition, they are not exempt from the fees that can be charged for the specialized, non-standardized format reproduction of records under KRS 61.874.
In sum, it was KHS's position that "a $ 10 fee for a non-standardized, noncommercial copy of a digital image from its artifacts collection is not excessive, " and that it is "comparable to similar fees charged by other state historical societies and universities."
While it is unclear under what authority other state historical societies and universities impose comparable fees, the reasonable fee provision of the Kentucky Open Records Act governs the reproduction of public records in the custody of KHS. Because the records whose reproduction costs are in dispute constitute "public records" within the meaning of KRS 61.870(2), 2 and Ms. Glasscock's purpose in obtaining copies is a noncommercial one, 3 KHS's fees are restricted to "the actual cost of reproduction, including the costs of the media 4 and mechanical processing 5 cost incurred by the public agency, but not including the cost of staff required." Respectfully, we disagree with KHS's characterization of Ms. Glasscock's request as one seeking "specialized, non-standardized format reproduction of records under KRS 61.874." KHS acknowledges that its electronic artifact collection database consists of "museum quality images . . . maintained in a 1200 dpi resolution." Because some or all of the requested records exist in a digital format, it is incumbent on KHS to reproduce them for Ms. Glasscock at a reasonable fee not to exceed its actual costs excluding staff costs.
To begin, KHS cannot be said to have discharged its statutory duty under the Act by referring Ms. Glasscock to its website so that she could "pull these images . . . free of charge." In a recent open records decision, this office recognized that although a requester may prefer this mode of inspection and copying, and agencies may offer it as an alternative, agencies cannot furnish requesters "with a website address where records responsive to [the] request can be located, in lieu of affording [the requester] an opportunity to inspect the records onsite or receive copies of the records by mail . . . ." 09-ORD-036, p. 3 (citing 05-ORD-050, p. 2 note 1). A copy of 09-ORD-036 is attached hereto and incorporated by reference. KHS did not present website inspection and copying of the governors' portraits as the only alternative. Its response did not fall within the zone of prohibited conduct, but represented less than full compliance with the Act.
Because the public records 6 to which Ms. Glasscock requested access were precisely described, and some or all are readily available in the electronic artifact collection database, KHS was required to provide her with a copy upon prepayment of a reasonable fee based on the actual cost of copying the existing database, excluding staff time required. As noted above, Ms. Glasscock did not request "specialized, non-standardized format reproduction of records under KRS 61.874[(3)]," which would have otherwise entitled KHS to recover staff costs. Instead, she requested "a copy of each of the governors' portraits, " expressing the belief that "the History Center has digital copies of each portrait, " and asking that she be advised "if there is a substantial charge for these files." KHS responded that because she "required a specific format for these files," reproduction fees would be assessed based on its Rights and Reproduction Form. On appeal, Ms. Glasscock observed that "the portraits of all of Kentucky's past governors exist in a high resolution electronic format, " and that "the $ 1995 fee seems excessive for the simple task of burning the images onto a compact disc." We agree.
In 08-ORD-080, a copy of which is attached hereto and incorporated by reference, this office held that because the Kentucky State Police could satisfy an open records request by reproducing the requested records in the format in which it was currently maintained, KRS 61.874(2)(b) governed and "no additional fees [could] be assessed." That statute provides:
If the public agency maintains electronic public records in a format other than ASCII, and this format conforms to the requester's requirements, the public record may be provided in this alternative electronic format for standard fees as specified by the public agency.
08-ORD-080, p. 6, citing KRS 61.874(2)(b) and "Guidelines for Responding to Open Records Requests for Public Records in a Database, " http://www.kdla.ky.gov/recmanagement/DatabaseasPublicRecord.pdf. Ms. Glasscock evidenced her desire to obtain copies of the records, other than those in theformat available on KHS's website, by pursuing this appeal to the Attorney General. KHS maintains some or all of the records in a digital format that satisfies her request. While it is not obligated to digitize any portraits that have not already undergone the process described in its response in order to satisfy her request, KHS is obligated to produce those maintained in its existing electronic artifact collection database at a reproduction cost not to exceed the cost of burning them to a CD, excluding staff costs. In a noncommercial context, the Open Records Act does not envision cost-recovery for digital imaging efforts already expended or funding for digital imaging efforts that are ongoing.
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.
Laura Cullen GlasscockLisa S. ClevelandMisty Dugger Judy
Footnotes
Footnotes
1 KRS 61.880(4) thus 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.
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2 KRS 61.870(2) defines the term "public record" as:
all books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency.
3 KRS 61.870(4)(b) excludes from the definition of commercial purpose:
1. Publication or related use of a public record by a newspaper or periodical;
2. Use of a public record by a radio or television station in its news or other informational programs; or
3. Use of a public record in the preparation for prosecution or defense of litigation, or claims settlement by the parties to such action, or the attorneys representing the parties.
4 KRS 61.870(7) defines the term "media" 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; and
5 KRS 61.870(8) defines the term "mechanical processing" 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.
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6 While the framers of the Act may not have envisioned the application of the Open Records Act to a portrait, we are obliged to treat it as a public record insofar as it is "a pictorial representation of a person," thus a "picture," "in the possession of or retained by a public agency. " Whatever its artistic merit or intrinsic value, it falls within the definition of a "public record" pursuant to KRS 61.870(2).
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