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 Whitley County Clerk subverted the intent of the Open Records Act, short of denial of inspection, by refusing Larry Bailey's request to use his personal handheld scanner or non-flash camera to reproduce records in the deed room and advising him that "[t]he 50 cent per page [copying] fee is used toward the maintenance, supplies, and salaries of the Clerk's Office." Absent proof that the condition of the records Mr. Bailey wished to reproduce was so poor that the clerk risked damage or alteration to the records if she permitted Mr. Bailey to use his handheld scanner or non-flash camera, we find that she subverted the intent of the Act in refusing his request to make his own copies. If such proof existed, necessitating agency reproduction of the records to prevent damage or alteration, the clerk's response nevertheless constituted a subversion of the intent of the Act based on the imposition of excessive copying fees that were not correlated to the cost factors codified at KRS 61.874(3).
On appeal, Mr. Bailey asserts that the clerk's policy "forc[es] everyone to pay fees for the maintenance and supplies of [her] office even if those services are not needed," imposing "undue financial burdens" on open records requesters for an often "low quality" and illegible black and white copy that is inferior to the color images produced by handheld scanners and non-flash cameras. Whitley County Clerk Kay Schwartz responds that permitting persons other than her staff to make copies "with or without their own copy equipment invites the opportunity for damage, destruction, or alteration of records" and is inconsistent with her "duty to protect and preserve the records." She defends her fifty cent per page copying fee as "reasonable," and therefore permissible under KRS 61.874(3) and (4), noting that "Mr. Bailey has not provided any evidence that the fee charged is unreasonable or excessive."
Responding to the clerk's supplemental argument that records entrusted to her care might be damaged or altered if she permits non-staff members to make copies, Mr. Bailey observes:
It seems that taking pages out of books and placing them on conventional flatbed copiers could cause more damage to records than handheld scanners or non-flash cameras. Flatbed copiers . . . emit heat and light but handheld scanners do not. Non-flash cameras do not even make contact with records. Transporting records to and from flatbed copiers also causes wear to the records.
Mr. Bailey notes that the Department for Libraries and Archives permits the use of non-flash cameras and handheld scanners by persons inspecting records in its custody, thereby "freeing custodians to perform needed office tasks other than making unneeded copies." While this office has rarely addressed the issue Mr. Bailey raises, our research confirms that existence of legal authority supporting his position.
KRS 61.874(1) addresses the public's right to copies of nonexempt public records. It provides:
Upon inspection, the applicant shall have the right to make abstracts of the public records and memoranda thereof, and to obtain copies of all public records not exempted by the terms of KRS 61.878. 1 When copies are requested, the custodian may require a written request and advance payment of the prescribed fee, including postage where appropriate. If the applicant desires copies of public records other than written records, the custodian of the records shall duplicate the records or permit the applicant to duplicate the records; however, the custodian shall ensure that such duplication will not damage or alter the original records.
KRS 61.874(1) does not expressly invest an open records applicant with the right to make his or her own copies using personal imaging equipment. Nor, however, does it expressly prohibit this practice.
It is clear that the public's right of access to nonexempt public records includes the right to obtain copies. See, e.g., 05-ORD-060 (recognizing that "if inspection is permitted, the requester enjoys a corollary right to obtain copies"). It is equally clear that a public agency has no right to assess a fee for production of its records under the provisions of the Open Records Act. 97-ORD-8 (recognizing that "nothing in the Open Records Law supports the proposition that a public agency may assess a charge for inspecting public records" ). Public agencies can only assess a fee for reproduction of those records. That fee is limited to the agency's medium and mechanical processing costs and expressly excludes staff costs. 2 KRS 61.874(3). Resolution of the question presented in this appeal turns on a comparative weighing of Mr. Bailey's interest in maximizing access to nonexempt records at a nonprohibitive cost and the clerk's interest in protecting those records from damage or alteration. Her desire to defray the cost of maintenance, supplies, and staff salaries figure in our analysis only to the extent provided by law.
We find that because she failed to present proof that the records Mr. Bailey wished to reproduce were in poor condition and/or that the equipment he intended to use was more likely to damage or alter the records than the equipment her office intended to use, the Whitley County Clerk subverted the intent of the Open Records Act by refusing his request to make his own copies using a personal handheld scanner or non-flash camera. We acknowledge the paucity of authority addressing this question in Kentucky. 3 Our review of case law in other jurisdictions suggests that open records applicants are often accorded the right to make their own copies "by any safe means" as long as that right is properly balanced against "the custodian's duty to preserve and protect the public records from alteration or destruction. " Title Search Corporation v. Rausch, 450 So. 2d 933 (La. 1984) cited in First Commerce Title Company, Inc. v. Martin, 887 So.2d 716, 721 (La. App. 2004). Indeed, some jurisdictions have enacted legislation expressly recognizing the public's right to make their own copies using personal equipment. See, e.g., Connecticut General Statutes § 1-212(g) ; Louisiana Revised Statute 44:31; New Jersey Statutes Annotated 47:1A-5.
As noted, Kentucky's law neither invests nor divests the applicant with the right to generate his or her own copies. Like the referenced jurisdictions, however, Kentucky's law was "enacted for the public's benefit, [and] must be interpreted most favorably to the public." Courier-Journal and Louisville Times Co. v. University of Louisville Board of Trustees, 569 S.W.2d 374, (Ky. 1979) citing Board of Public Instruction v. Doran, 224 S.2d 693 (Fla. 1969). Any doubt arising from the language of the Open Records Act must be resolved in favor of the public. In the absence of a statute prohibiting open records applicants from making copies using their own imaging equipment, and any evidence that the particular records he wishes to copy are more likely to be destroyed or altered if he copies them, we find that Mr. Bailey cannot be denied this right.
Our conclusion is limited to this case. We recognize that, given rapid changes in technology, a "broad holding . . . might have implication for future cases that cannot be predicted." City of Ontario v. Quon , 560 U.S. , 11 (2010). Any future holding would turn on the condition of the public record the applicant wishes to reproduce and the type of imaging equipment he or she proposes to use. 4 In the appeal before us, those records were apparently kept in a public area to which Mr. Bailey enjoyed unfettered access. This suggests that they were not in poor condition. He proposed to use a handheld scanner that rolls across the records or a non-flash camera. Neither option would leave a mark or impression on the records or require the disassembly of bound books. Either option is less likely to damage or alter the records than a standard copier or a flatbed scanner which require the disassembly of bound books or the pressing of the bound book against the glass of the copier or scanner. In weighing Mr. Bailey's interest in accessing the records at minimal or no cost against the custodian's interest in preserving and protecting the records from damage or alteration, we find that the balance tips in favor of Mr. Bailey.
Had the Whitley County Clerk presented evidence that the records Mr. Bailey wished to reproduce were so fragile, or the imaging equipment he proposed to use so likely to result in damage to them, that it was necessary for a member of her staff to reproduce them, we find that the imposition of a fifty cent per page copying fee subverted the intent of the Open Records Act short of denial of inspection. The Attorney General rejected this argument when it was advanced by the County Clerks Association in 02-ORD-218, declaring that the widely accepted ten cents per page copying fee 5 "strikes 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." 02-ORD-218, p. 1 citing 01-ORD-136, p. 6. A copy of 02-ORD-218 is enclosed and its reasoning incorporated by reference. Where the condition of the records or the proposed imaging equipment is such that the clerk must reproduce the records rather than the applicant, she is restricted to recovery of "the actual costs 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).
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:
Larry BaileyKay SchwartzPaul K. Winchester
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