Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in these consolidated appeals is whether the City of Bardstown and the Joint Board of Ethics of the Cities of Bardstown, Fairfield and the County of Nelson, Kentucky, subverted the intent of the Kentucky Open Records Act, short of denial of inspection and within the meaning of KRS 61.880(4), 1 by charging a flat rate of $ 5.00 each for copies of compact disc (CD) recordings of specified meetings. Because the record on appeal establishes that $ 5.00 per CD exceeds "the actual cost of reproduction, including the costs of the media and any mechanical processing cost incurred," 2 but excluding "the cost of staff required," in contravention of KRS 61.874(3), 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). See 09-ORD-077 (Kentucky Historical Society subverted intent of Act by charging excessive reproduction fee to produce "digital copies" of portraits maintained in the agency's existing artifact collection database and was obligated to produce copies at reproduction cost not to exceed cost of burning them to a CD); 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-46 (imposition of $ 5.00 fee to reproduce minutes of meetings on computer disc violated "reasonable fee provision" absent evidence that represented actual cost).
By letter directed to the Official Custodian of Records for the City of Bardstown on August 17, 2009, Mr. Brumley requested a "true copy of the minutes of the Bardstown City Council meeting held on 8-11-09," and "any other 'Public Record as per KRS 61.870(2) including any tape recordings /disc/or other electronic recording (s) made by the City of Bardstown, its employees, assigns or agents, of the Bardstown City Council meeting held on 8-11-09." On or around October 20, 2009, Mr. Brumley made a similar request for a hard copy of the approved minutes from the October 7, 2009, meeting of the Joint Ethics Board as well as a copy of the CD recording of its October 19, 2009, meeting. Each agency complied with his request; however, both also charged him a flat rate of $ 5.00 each for the requested CDs. By letters dated November 14, 2009, Mr. Brumley initiated these appeals. 3 In his view, the $ 5.00 fee is excessive and is "devised to deter individuals from getting involved in participating in the Open Records and Open Meetings Acts." The sole question presented here is whether the City and the Board subverted the intent of the Act, short of denial of inspection and within the meaning of KRS 61.880(4), by imposing a fee which exceeded "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).
Upon receiving notification of Mr. Brumley's appeals from this office, Thomas A. Donan, Attorney for the City and the Board, responded on behalf of both agencies. 4 In attempting to justify the $ 5.00 fee, Mr. Donan advised:
. . . The City computer and software package which is used to make copies of the CD was purchased by the City of Bardstown in October 2006 for $ 2,160.00. Typically, the useful life for a computer is placed at three years for a cost of $ 720.00 per year using straight line depreciation. This computer is used to house the program which converts from the hand held recorder to the voice editing program in order to burn the voice editing program onto a CD. The software and hand held recorder to record Ethics Board Meetings only was purchased in March 2005 for $ 69.96. The recorder uses two Triple A batteries which have an average life of eight hours. An eight pack of Triple A batteries costs $ 10.00 or $ 1.25 per battery. The City purchases packages of CDs in bulk. One hundred CDs are purchased at a time for $ 40.00. This is a cost of $ .40 per CD for high quality CDs. At the time of an open records request a second CD is burned to keep a duplicate of the information requested and the CD produced for the applicant.
Since City of Bardstown equipment is used for this purpose, I am quoting the statistics for the City of Bardstown with respect to the number of tapes copied pursuant to open records request(s) each year. In 2006 two CDs were requested; 2007, three CDs were requested; 2008, one CD was requested; and 2009 two CDs have been requested as of the date of this letter. These numbers exclude CD requests for the Ethics Board because there were no requests in three previous years prior to 2009. The City average is two requests per year over the last four years. Regardless of the volume of requests, the City is required by statute to have the capability to produce the CDs.
As a result, the City incurs direct costs in support of the Ethics Board of $ .80 per request for two CDs, one for the requester and one for the agency's records to show what was produced. In addition, the City maintains equipment which has an annual expense of over $ 720.00 per year in order to have the capability to produce an average [of] four CDs per year or $ 180.00 per CD. This excludes the hand held recorder and cost of batteries. Given this information, the City and the Ethics Boards [sic] contend that a charge of $ 5.00 per CD is a reasonable fee under KRS 61.874 .
. . .
Mr. Brumley has paid the $ 5.00 fee for a CD previously without complaint or appeal to the Attorney General. In the present case Mr. Brumley was charged $ 5.00 for a CD and $ .10 per page. The Ethics Board [and the City contend] that both charges are reasonable fees authorized by the [Open Records Act] .
In letters dated December 2, 2009, Mr. Brumley replied to each of these arguments, raising some issues which are not justiciable in this forum (conflict of interest, etc.), but correctly observing that the computer "is NOT just used to reproduce Open Record [CDs] for the Ethics Board." Rather, the computer is "used [every day] in the business of running a municipality, the City of Bardstown." According to his calculations, a "reasonable fee" equals $ .49 (depreciation plus actual cost of CD). Mr. Brumley also correctly noted that nowhere in Chapter 61 "does it allow the 'agency' to charge the person requesting a public record to be charged for the 'reproduction' of an extra copy for the agency." Based upon the following, this office finds that $ 5.00 is an excessive fee, imposition of which subverted the intent of the Act within the meaning of KRS 61.880(4). 5
Pursuant to KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, this office asked Mr. Donan to provide additional information to assist us in resolving the question presented. Having reviewed Mr. Donan's response, this office learned that City Council meetings are recorded on a system "installed specifically for that purpose using two microphones suspended from the ceiling which go to a digital interface that is connected to a dedicated personal computer." The audio files, which "are in an MP3 format [,]" are then loaded onto a thumb drive, which is "then copied to the City Clerk's computer." She then transcribes the minutes from the recording on her computer. Prior to 2006, the City Clerk recorded the minutes using a tape recorder. The Clerk for the Ethics Board "uses a portable recorder to transcribe the minutes of the Ethics Board Meeting," which are "transferred and maintained on her computer at City Hall until the minutes are approved." Following approval, the recording is deleted from the voice editing program. "The transcribed minutes are maintained on the City computer, and the signed original is kept as a hard copy. "
Based upon the false assumption that the City Clerk and the Ethics Board Clerk "must be able to produce a CD when requested through open records," and their work stations therefore "must have the equipment that allows that to be accomplished," Mr. Donan advised that the City specifically requested "the program that allows the equipment to copy CDs" when ordering "computer hardware for any work station." Although the "voice editing program used by the Ethics Board does not come in a standard audio format, " and therefore "must be converted out of this file format into a WAV file before it can be burned onto a CD," ultimately none of the information provided alters the relevant analysis.
In closing, Mr. Donan observed that "[d]uring calendar year 2009 there were a total of 39 City Council Meetings or Working Sessions which were recorded in this fashion. During calendar year 2009 there were 11 meetings of the Joint Ethics Board." These numbers, which vary from year to year, are simply not relevant in determining whether $ 5.00 represents the "actual cost of reproduction" under KRS 61.874(3); likewise, the position of the City and the Board is based on the flawed premise that, as public agencies, both are statutorily required to maintain the records in electronic format and thus must "have the capability to produce the CDs." To the contrary, public agencies have no statutory obligation to maintain such records in electronic format, and thus cannot recover any costs incurred as a result of doing so voluntarily, in the normal course of business, which exceed the actual cost of reproduction.
Resolution of this appeal turns on the application of KRS 61.874(3), which, in relevant part, states:
The public agency may prescribe a reasonable copying 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.
However, KRS 61.874(3), commonly referred to as the "reasonable fee provision," must be read in conjunction with KRS 61.874(2)(a), which expressly provides:
Nonexempt public records used for noncommercial purposes shall be available for copying in either standard electronic or standard hard copy format, as designated by the party requesting the records, where the agency currently maintains the records in electronic format. Nonexempt public records used for noncommercial purposes shall be copied in standard hard copy format where agencies currently maintain records in hard copy format. Agencies are not required to convert hard copy format records to electronic formats.
(Emphasis added.) In construing this provision, the Attorney General has repeatedly determined that " if nonexempt records exist in both standard electronic and standard hard copy format, the public agency must permit inspection of and copying in the format requested by the requester. " 99-ORD-12, p. 6 (emphasis added); 99-ORD-38; 02-ORD-65; 06-ORD-147; 07-ORD-038; compare 03-ORD-222 (recognizing that KRS 237.110(8), which authorizes release to public of information stored in Kentucky State Police database of conceal-carry license holders in hard copy format only, governs over KRS 61.874(2)(a) notwithstanding requester's preference).
As a corollary of this provision, the Attorney General has also recognized that if the nonexempt records exist in hard copy format only, agencies must only permit inspection of, and copying in that format. KRS 61.874(2) firmly establishes that "agencies are not required to convert hard copy format records to electronic format. " Unless the records being sought exist only in hard copy format, discretion rests with the requester, and not the agency, to determine whether copies must be provided in electronic or hard copy format. In other words, if the agency chooses to maintain the records in electronic format, as both agencies do here instead of utilizing more conventional methods, presumably for convenience and to promote efficiency in their daily operations rather than strictly to comply with requests made under the Open Records Act, only then is the agency required to produce the records in that format upon request and charge a "reasonable fee" based exclusively on the actual cost of reproduction, excluding staff costs. Conversely, if a public agency "is asked to produce a record in a nonstandardized format, or to tailor the format to meet the request of an individual or group, the public agency may at its discretion provide the requested format and record staff costs as well as any actual costs incurred." KRS 61.874(3).
Because the City and the Board currently maintain the records being sought in electronic format, only the actual reproduction cost, which does not include the depreciated cost of the computer, or the cost of the software, the recorder or the batteries, but does include the cost of the "media" or the CD itself - $ .40, may be recovered. In our view, the computer is the functional equivalent of a filing cabinet because it serves merely as the storage unit in which the public agency maintains the records as required by law. Accordingly, this cost would not constitute part of the reproduction cost under any set of circumstances. Even if the agencies were permitted to recover the "mechanical processing" cost or the cost of the "operation or other procedure which is transacted on" the computer, which is "burning" a CD in this case, any cost incurred would be too minimal to quantify.
Both agencies must otherwise bear the costs associated with doing business, including compliance with the Open Records Act, using the methods voluntarily employed. "No profit can be built into the actual costs associated with the duplication of a DVD [or CD] in response to a request under Kentucky's Open Records Act. " 01-ORD-50, p. 7. When viewed in conjunction, KRS 61.874(2)(a) and (3), applied on these facts, lead us to conclude that $ 5.00 is an excessive fee, imposition of which subverted the intent of the Open Records Act within the meaning of KRS 61.880(4). "In a noncommercial context, the Open Records Act does not envision cost-recovery for [CD preparation, creation or duplication] efforts already expended or funding for [such] efforts that are ongoing." 09-ORD-077, p. 7.
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.
Kevin BrumleyChristina BradfordThomas A. Donan
Footnotes
Footnotes
1 Pursuant to KRS 61.880(4):
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 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 Mr. Brumley also challenged the failure of both agencies to "display a copy of its rules and regulations pertaining to public records in a prominent location accessible to the public" in accordance with KRS 61.876(2); however, this issue is not ripe for review since Mr. Brumley did not raise it before filing his appeals. In any event, Mr. Donan acknowledged that the Board did not have rules and regulations posted at the time of Mr. Brumley's letter but has now posted those in a prominent location.
4 In responding on behalf of the Ethics Board, Mr. Donan explained that the "Ethics Board does not have a budget." Rather, "[o]ne or more of the governmental bodies served by the Ethics Board provides services in kind subject to reimbursement by the legislative bodies at the end of the year. In this case, the in kind services are provided by the City of Bardstown." However, as with most of the other factors mentioned, this information does not alter the relevant analysis under KRS 61.874(3).
5 In further support of the agencies' position, Mr. Donan attached an affidavit from the Clerk of the Nelson Circuit and District Courts "with pages from the Clerk's Manual approved by the Kentucky Supreme Court." Mr. Donan noted that the Clerk "is required to charge the public a charge of $ 10.00 for an [audiocassette] tape and $ 20.00 for a [videotape]. The charge for compact discs (CDs) [is] the same as [videotapes] ($ 20.00)." Because records in the custody of district and circuit court clerks are court records, which are not governed by the provisions of the Act, rather than "public records" within the meaning of KRS 61.870(2), this office has long recognized that clerks are not bound by the Act. See 98-ORD-6. Said another way, records generated by the courts are not subject to statutory regulation under Ex parte Farley, Ky., 570 S.W.2d 617 (1978); accordingly, the copying fees adopted by the courts have no relevance in this context.