00-ORD-238
December 28, 2000
In re: Better Business Bureau, Inc./Cabinet for Health Services
Open Records Decision
The question presented in this appeal is whether the Better Business Bureau, Inc., a private, non-profit organization funded solely by its members, is entitled to a waiver of the $6.50 fee assessed by the Cabinet for Health Services’ Office of Aging Services for the reproduction of records requested by the BBB. For the reasons that follow, and upon the authorities cited, we conclude that the Cabinet did not violate the Act in imposing a reasonable reproduction fee, and that the BBB is not entitled to a waiver of the fee.
On behalf of the BBB, Membership Coordinator Bonnie G. Waters states that the organization recently requested the assistance of the Cabinet’s Office of Aging Services in obtaining information on a company under the Kentucky Open Records Act, and was advised of the $6.50 copying charge. Ms. Waters explains that the BBB “works hand-in-hand with the Attorney General’s Office in Frankfort with the Statewide Consumer Protection Hotline, as well as Consumer Protection locally, by getting the word out to consumers and businesses alike when a scam has hit Kentucky, and on many occasions, the Bureau does look to other agencies for information, including the Cabinet for Health Services, before offering membership to companies in Louisville, Southern Indiana, or Western Kentucky.” Given its status as a private, non-profit organization, the BBB, through Ms. Waters, requests a waiver of the $6.50 copying charge “and any future charges pursuant to KRS 61.880.”
In a response directed to this office following commencement of Ms. Waters’ appeal, John H. Walker, Assistant General Counsel for the Cabinet for Health Services, explained that “it is routine and uniform to request the cost of copying data in compensation for the copies made.” Mr. Walker indicated that “even state agencies are asked to pay a copying fee, “ and that the Open Records Act contains “no apparent provisions for exclusion of private organizations, no matter how worthy the work done or the cause served, from the payment of the small amount of fee associated with copying data.” We agree.
KRS 61.874(3) authorizes public agencies to “prescribe a reasonable 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.” See also, KRS 61.874(1) (“When copies are requested, the custodian may require a written request and advance payment of the prescribed fee, including postage where appropriate”); 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”). These statutes contain no provision for the waiver of such fees for any party. See 94-ORD-90 (no waiver of reproduction charges for media representative); 99-ORD-30 (no waiver of reproduction charges for inmates). “Simply stated, all persons have the same standing to inspect and receive copies of public records, and are subject to the same obligation for receipt thereof.” 94-ORD-90, p. 3; OAG 79-546; OAG 79-582; OAG 80-641; OAG 82-394; OAG 89-86; OAG 91-129; 92-ORD-1136. Accordingly, we find that it is entirely proper for the Cabinet for Health Services to require prepayment of a reasonable copying charge that does not exceed the actual cost of duplication, not including staff costs, and to enforce a standard policy relative to assessment of those charges.1 See also, 98-ORD-95; 99-ORD-179. The Better Business Bureau is not entitled to a waiver of the standard copying charge.
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 proceedings.
Albert B. Chandler III
Attorney General
Amye L. Bensenhaver
Assistant Attorney General
#740
Distributed to:
Bonnie G. Waters
Better Business Bureau
844 South Fourth Street
Louisville, KY 40203-2186
John Walker
Cabinet for Health Services
275 East Main Street
Frankfort, KY 40601-0001
Betty Connor
Office of Aging Services
Cabinet for Health Services
275 East Main Street - 4 West
Frankfort, KY 40601-0001
[1] In a footnote to 94-ORD-90, the Attorney General recognized that “a public agency may, of course, elect to waive the copying charge.” 94-ORD-90, note 1. Citing OAG 81-300, we noted that “as long as full access is provided and the records are protected from damage and disorganization, there is no statutory prohibition against the agency waiving a fee . . . .” OAG 81-300, p. 2.