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 Henry County Judge Executive subverted the intent of the Open Records Act, short of denial of inspection, by charging a flat rate of $ 5.00 each for DVD recordings of specified meetings of the Henry County Fiscal Court. Because the Judge Executive has failed to substantiate that $ 5.00 per DVD reflects "the actual cost of reproduction, including the costs of the media and any mechanical processing cost incurred," but excluding "the cost of staff required," in accordance with KRS 61.874(3) , despite having three opportunities to do so, this office must conclude that the imposed fee is excessive and subverts the intent of the Act within the meaning of KRS 61.880(4). To hold otherwise would contravene prior decisions of this office construing KRS 61.874(3), including 01-ORD-136 and 01-ORD-50. See 08-ORD-003 (agency subverted intent of Act within meaning of KRS 61.880(4) in charging $ 3.00 for "arrest history information" without substantiating that was actual cost of reproduction) ; 03-ORD-224 (fee of $ 10.00 was excessive unless agency could substantiate actual cost of ten dollars to reproduce audits requested); 96-ORD-273 (agency was directed to recalculate its copying fee based on factors in KRS 61.874(3) in absence of proof that actual cost of reproducing negative as 8 x 10 photograph was $ 10.00); 93-ORD-36 (imposition of $ 5.00 fee to reproduce minutes of meetings on computer disk violated "reasonable fee provision" absent evidence that represented actual cost). See also 08-ORD-006; 99-ORD-159.
On May 1, 2009, Russell Loaring submitted a written request for a "[c]opy of the audiovisual recordings of the 1/20/09, 2/17/09, 3/17/09 & 4/21/09 Fiscal Court [m]eetings" to Peggy V. Bryant, Deputy Judge Executive. By letter dated May 7, 2009, Mr. Loaring initiated this appeal, noting that Ms. Bryant had advised him that the records would be ready on May 5, but indicated that she did not know the cost. Upon his arrival at 3:30 p.m. on May 5, Ms. Bryant advised Mr. Loaring that the records were not ready. On May 7, Ms. Bryant called to let Mr. Loaring know that the cost would be $ 40.00 per DVD. 1 Mr. Loaring subsequently initiated the instant appeal challenging this fee as excessive.
Upon receiving notification of Mr. Loaring's appeal from this office, Virginia Lee Harrod, Henry County Attorney, responded on behalf of the Judge Executive. In her view, the appeal was moot as Mr. Loaring was provided with "the videos at $ 5.00 each," on May 11, 2009, as evidenced by the receipt, a copy of which Ms. Harrod attached. Noticeably absent was any explanation of whether this fee represented the actual cost of reproduction, excluding staff costs, per KRS 61.874(3), which is unquestionably a justiciable issue; accordingly, this office respectfully disagreed with her characterization of the appeal.
Unable to resolve the sole question presented given this lack of evidence, the undersigned counsel provided the Office of the Judge Executive with another opportunity to satisfy its burden of proof under KRS 61.880(2)(c), by providing this office with additional information pursuant to KRS 61.880(2)(c) and 40 KAR 1:030, Section 3. More specifically, this office asked the Judge Executive to "substantiate the position that $ 5.00 per DVD represents 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.' KRS 61.874(3)." By letter dated June 4, 2009, Ms. Harrod briefly supplemented her initial response as follows:
To substantiate the $ 5.00 DVD fee the Henry County Fiscal Court used the Oldham County fee for guidance, as the cost for each DVD is $ 1.00. Trimble County only makes paper copies, not DVD copies. Shelby County uses a vendor who copies and charges their fee.
Neither the policies of, nor the fees charged in surrounding counties have any legal relevance. "Under the directives set forth in KRS 61.880(2) and (4), we are limited to ruling as to the validity of what this particular agency did in this particular fact situation." 99-ORD-40, p. 3, citing OAG 88-74. Inasmuch as the Judge Executive has acknowledged that "the cost for each DVD is $ 1.00" without further explanation, this office must conclude that a $ 5.00 fee is excessive based upon the express language of KRS 61.874(3) , pursuant to which public agencies may "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 cost incurred by the public agency, but not including the cost of staff required." 2 Public agencies may also require advance payment of the prescribed copying fee, "including postage where appropriate" under KRS 61.874(1) and KRS 61.872(3)(b) ("If the person requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing"); see also, 94-ORD-90 and 95-ORD-105.
"It is not proper for [the Judge Executive], or any other public agency, to impose a copying charge which exceeds its actual costs." 01-ORD-50, p. 6. On this issue, the Attorney General has long recognized:
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.
OAG 82-396, p. 3. 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 under the Open Records Act. 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 which exceeds 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.
By the same token, unless the Office of the Judge Executive can demonstrate that the actual cost of reproducing a DVD recording of a Fiscal Court meeting, based on media and mechanical processing costs but excluding staff costs, is equal to $ 5.00, it must recalculate its copying charge for DVDs to conform to the criteria set forth at KRS 61.874(3). In our view, the analysis contained in 01-ORD-136 and 01-ORD-50 relative to application of KRS 61.874(3) is controlling on the sole question presented; a copy of each decision is attached hereto and incorporated by reference. No profit can be built into the actual costs associated with the duplication of a DVD in response to a request under Kentucky's Open Records Act. 01-ORD-50, p. 7. Unless the operation or procedure transacted on its own "copier, computer, recorder or tape processor, or other automated device" costs the Judge Executive $ 5.00, an issue on which the record is silent, this office must conclude that the $ 5.00 copying fee it charged Mr. Loaring was excessive, and therefore subverted the intent of the Act within the meaning of KRS 61.880(4). Existing legal authority does not support the Judge Executive's current policy. 3
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.
Russell LoaringPeggy V. BryantVirginia Lee Harrod
Footnotes
Footnotes
1 Although Mr. Loaring does not raise this issue on appeal, the Office of the Judge Executive committed a procedural violation of the Act in failing to either issue a written response within three business days of receipt, and provide Mr. Loaring with access, in accordance with KRS 61.880(1), or provide a detailed explanation of the cause for delay and the date when the records would be available per KRS 61.872(5). Because the law in this area is well-established, and the record is unclear as to whether Mr. Loaring consented to receiving a verbal response and/or a brief delay, this office will not belabor the point. See 08-ORD-183.
2 In relevant part, KRs 61.870 provides:
(7) "Media" means 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
(8) "Mechanical processing" means 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.
3 Although the Judge Executive contacted this office to verbalize his opposition to existing legal authority on this point, in response to a request from the undersigned counsel for clarification regarding Ms. Harrod's final response, KRS 61.874(3) is unambiguous and this office has consistently recognized that 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." 99-ORD-40, p. 4, citing OAG 80-54.