Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the City of West Buechel subverted the intent of the Open Records Act, short of the denial of inspection, by the imposition of excessive copying fees. For the reasons that follow, we conclude that to the extent that the fifty cents per page copying fee which the City imposes exceeds its actual costs, the fee is clearly excessive and subverts the intent of the Act.
Michael S. Murdoch made a written request, pursuant to KRS 61.880, for the City to fax him a copy of a 4-page accident report. The City advised that there would be a $ 2.00 charge to fax him the 4-page report. In his letter of appeal, Mr. Murdock questions the City's charge of $ .50 per page as excessive.
After receipt of this office's "Notification to Agency of Receipt of Open Records Appeal," L. Stanley Chauvin, Jr., attorney for the City submitted a response to Mr. Murdoch's letter of appeal. In his response, he stated in part:
The document was four pages long and he was charged 50 cents a page. This didn't suit him and it was given to him free.
?
I reiterate again, this was not an Open Records request, it was for a copy of a police accident report and the charge is the same as it is for most documents at most agencies in Jefferson County, i.e., 50 cents per page. 1
Addressing first the issue of access to the requested record, it appears that the City has provided Mr. Murdoch with the accident report that he requested. 40 KAR 1:030, Section 6. Moot Complaints, provides:
If the requested documents are made to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter.
Since the City provided access to the requested report, we conclude that the issue of access to the requested record is moot. 40 KAR 1:030, Section 6.
However, for the reasons that follow, we conclude that the City's policy of charging fifty cents per page is not a reasonable copying charge within the meaning of KRS 61.874(3). If a public agency charges more than ten cents per page, it has the burden of establishing that this is not an excessive fee. 94-ORD-43. An agency can only assess a reasonable copying charge for public records not to exceed its actual costs, excluding staff time required. Unless an agency can document that its actual costs are greater than ten cents per page, both the courts and this office have demonstrated an unwillingness to countenance higher copying charges. See, e.g.,
Friend v. Rees, Ky.App., 696 S.W.2d 325 (1985); 94-ORD-77.
KRS 61.874(3) provides in relevant part:
The public agency may 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.
This provision has been interpreted to mean that the fee charged for copies should be based on the agency's actual expense, not including staff costs. The fee is thus limited to the proportionate cost of maintaining copying equipment by purchase or rental, and the supplies involved. In
Friend v. Rees, supra, the Kentucky Court of Appeals held that ten cents per page was a reasonable copying charge under the Open Records Act. In 99-ORD-40, this office recognized that a ten cents per page fee for copies of public records was the threshold standard fee. In that decision, we stated:
In our view, the courts, state government, and the many decisions of this office have recognized and established a bright line standard of a ten cents per page fee for copies of public records as a reasonable fee under the Open Records Act. This threshold standard fee establishes for public agencies a court approved reasonable fee for copies of public records and dispenses with the necessity of requiring the agencies to attempt to estimate costs involved in photocopying records. This would particularly be the case in agencies . . . which have a large number of copiers in many different buildings.
In the instant case, although the City ultimately provided Mr. Murdoch the accident report at no cost, its policy of charging 50 cents per page remains in effect. Unless the City can establish that its actual cost for reproducing records is fifty cents per page, based on the cost of media and mechanical processing as defined in KRS 61.870(7) and (8), the charge is excessive and subverts the intent of the Open Records Act. If the City continues to charge fifty cents per page, it must either substantiate the charge or recalculate its copying fee to conform to the requirements of KRS 61.874(3) and prior decisions of the courts and this office and charge for copies of public records accordingly. 2 The fact that similar copying charges are imposed by other agencies in Jefferson County does not justify the City's position, or alter our view. Those other agencies may be equally in error under the reasonable fee provision of the Open Records Act.
In addition to the above, Mr. Murdoch raised another issue in his letter of appeal. He alleges that the City refused to permit him to see the record to get information off of it. KRS 61.872(2) provides that "[A]ny person shall have the right to inspect public records. " KRS 61.874(1) specifically provides that "upon inspection, the applicant shall have the right to make abstracts and memoranda thereof." Refusal to allow a person to inspect a public record and to make an abstract as to its contents, unless exempt from inspection under an applicable exception set forth in KRS 61.878, would constitute a violation of the Open Records Act.
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:
Michael S. Murdoch3402 Fountain Drive, Apt. 4Louisville, KY 40218
Sharon FowlerMayor, West Buechel3705 Bashford AvenueLouisville, KY 40218
Teresa SingletonCity Clerk, West Buechel3705 Bashford Avenue Louisville, KY 40218
L. Stanley ChauvinCity Attorney, West Buechel3705 Bashford AvenueLouisville, KY 40218
Footnotes
Footnotes
1 Although Mr. Chauvin argues that Mr. Murdoch's request was not an open records request, we find to the contrary. Mr. Murdoch's letter of request clearly indicates that he was making the request pursuant to KRS 61.880.
2 KRS 61.874 is a residual and general statute, and applies where there is no other applicable fee statute. 96-ORD-3. The City has cited no specific statute that authorizes it to charge $ 2.00 or fifty cents per page for copies of accident reports or other public records. Thus, we hold that KRS 61.874(3) applies to the instant appeal.