Request By:
Richard Clay
319 West Main Street
P.O. Box 1256
Danville, KY 40423Sandy Gooch
City Clerk/Treasurer
City of Stanford
305 East Main Street
Stanford, KY 40484Carol Hill
Stanford City Attorney
305 East Main Street
Stanford, KY 40484
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Stanford subverted the intent of the Open Records Act, short of denial of inspection, by imposing excessive copying fees for the production of records requested by attorney Richard Clay. Based on the authorities cited, and the estimated costs involved in copying records, we conclude that the fees imposed were excessive.
On June 27, 2001, Mr. Clay requested copies of various records pertaining to the Stanford Storm Water Project from Mayor Rodman Bradshaw, Jr., acknowledging his obligation to assume responsibility "for the reasonable expense of copying. " On July 18, 2001, Stanford City Clerk Sandy Gooch provided Mr. Clay with copies of the records identified in his request. 1 Ms. Gooch advised him that she had compiled 114 responsive records, and that the "cost is .20 cents per copy for a total of $ 22.80." In response to Mr. Clay's written inquiry concerning the propriety of the copying charge in light of 01-ORD-114, 2 Ms. Gooch advised that twenty cents per page "is the actual cost of reproduction, including the costs of the media and mechanical processing costs incurred by this public agency, " and indicated that she would "stand firm by this." 3 Shortly thereafter, Mr. Clay initiated this open records appeal.
In a supplemental response directed to this office following commencement of Mr. Clay's appeal, Ms. Gooch elaborated on the city's position. She explained:
The .20 cent charge stemmed from the copy machine agreement of $ 300. per year for maintenance on a machine that is 11 years old. The allowable amount of copies is 12000, with a .03 cent charge per copy for any over that. The 964 copies he requested put me over that amount.
I based the amount also on the cost of copy paper. For ten reams (one case) of paper, the cost is $ 26.99. The toner for the copier runs $ 101.00 per year, which breaks my total cost down to about .17 cents per copy, not including the electric.
I realize that Mr. Clay has challenged a similar cost involving the City of Danville, he gave me copies of your decision at that time, however you based your decision for ten cents a copy on a case that was 16 years old. (Friends v. Rees, KY. App., 696 S.W.2d 325 (1985)) and prices have changed. (Not downward either)
In closing, Ms. Gooch noted that the standard copying charge for "several places around here" is twenty-five cents per page.
Pursuant to KRS 61.880(2)(c), on July 30, 2001, the Attorney General requested additional documentation from the City of Stanford to substantiate its twenty cents per page copying charge. Specifically, we asked that Ms. Gooch respond to the following questions:
1. What is the average number of copies you make in a single year?
2. How many pieces of paper does a single ream contain?
On August 30, Ms. Gooch responded that her office generates 14,632 copies, on average, each year, and that one ream of paper contains 500 sheets. 4 Based on the figures she furnished in this and her earlier letter, we find that the actual cost incurred by the City of Stanford in producing copies of public records, based on its medium and mechanical processing costs, but excluding staff costs, is just under four cents per page.
Ms. Gooch identifies three cost items in her responses to this office: machine maintenance, paper, and toner. The city's maintenance charge is $ 300 per year for the first 12,000 copies and three cents per page thereafter. In the past four years, the city has averaged 14,632 copies per year, and the average maintenance charge, per year, is therefore $ 300 plus $ 78.96 (2,632 representing the number of copies in excess of 12,000 multiplied by three cents per page - 2,632 x .03 = $ 78.96) for a total of $ 378.96. Dividing $ 378.96 by the average number of copies made (14,632), we arrive at a figure of $ .026 per page. The city expends $ 101.00 per year on toner, and dividing $ 101.00 by the average number of copies (again 14,362), we arrive at a figure of $ .0069 per page.
The medium, or paper, is purchased in reams of 500 sheets at ten reams for $ 26.99. One ream therefore costs $ 2.70, and one sheet costs $ .0054 ($ 2.70 divided by 500). Adding the maintenance charge per copy ($ .026), toner cost per copy ($ .0069), and paper cost per copy ($ .0054), we arrive at a total of $ .0383 per copy or 3.83 cents. Averaging up to allow for the cost of electric per copy and other incidental costs (which the city did not itemize), we conclude that its actual cost of reproduction, including the costs of the media and mechanical processing cost incurred, but not including the cost of staff required, is four cents per page. 5
Nevertheless, Ms. Gooch maintains that the city's actual cost in reproducing public records is equivalent to seventeen cents per page. Having failed to substantiate that this figure reflects the city's actual costs incurred, we are left with no alternative but to find that the twenty cent copying fee imposed by the City of Stanford is excessive, and, as a corollary of this finding, to advise the city that KRS 61.874(3) requires it to adjust its copying fee to reflect its actual costs (four cents per page) or no more than ten cents per page. The city may not seek to defray the costs it incurs for providing free copies of records stored in other physical media (such as cassettes and disks) by assessing higher copying charges for records reproduced in hard copy format. It is, instead, restricted to imposing a reasonable fee for making copies of records stored in any medium that does not exceed the actual cost of reproduction, including media and mechanical processing costs, but excluding staff costs, or, alternatively, ten cents per page. Acknowledging that ten cents per page represents more than the City of Stanford's actual costs incurred, we conclude that this is not an unreasonable copying charge based on the reasoning found in 99-ORD-40.
In 99-ORD-40 this office was asked to resolve a dispute concerning the propriety of a ten cents per page copying charge prescribed by the Fayette County Public Schools. The complainant asserted that commercial photocopying companies charged between $ .07 cents per copy and $ .08 cents per copy, and that it must therefore be inferred that the school system's copying charge was excessive. The school system substantiated actual costs of $ .023, including "the machine, service, toner, and paper," arguing that the additional amount charged reflected "overhead costs." We affirmed the school system's position, observing:
What particular private commercial photocopy companies charge per copy or what other public agencies may charge per copy is not controlling in this instance. 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, 4.
With reference to the ten cents per page copying charge that has been approved by the courts and this office, as well as by administrative regulation, we stated:
In Friend v. Rees , Ky. App., 696 S., W.2d 325 (1985), the Court of Appeals held that ten cents a copy was a reasonable fee for reproducing standard hard copy records. The Attorney General has adopted this position of the court in a long line of decisions. See, e.g., OAGs 88-74, 89-9, 91-98, 91-210, 92-79, 92-ORD-1491, 93-ORD44, 94-ORD-43, 95-ORD-82, 96-ORD-3, 98-ORD-88, [01-ORD-50; 01ORD-114].
The Finance and Administration Cabinet, pursuant to KRS 61.876(3), has promulgated an administrative regulation, 200 KAR 1:020, which establishes the general rules to be followed by all state administrative agencies in affording public access to their public records. 200 KAR 1:020, Section 3 (1), in relevant part, provides:
(Emphasis added.)
99-ORD-40, p. 3, 4.
Reaffirming the reasonableness of the ten cents per page copying charge, we concluded:
[T]he courts, state government, and 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.
Absent further direction from the courts or the legislature, and in light of this long standing recognition by the courts, this office, state government, and other public agencies, that ten cents a page is a reasonable fee for copies of public records, we are reluctant to change this bright line threshold standard. 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. OAG 80-54.
99-ORD-40, p. 4, 5. In closing, we recognized:
the practical difficulties that agencies face in trying to estimate the cost of photocopying and the corresponding difficulties this agency would have in determining whether the estimate reflects the agencies' actual cost. We have little doubt that the floodgates would be opened to open records appeals premised on the reasonableness of the ten cent copying charge. If a standard, other than ten cents per page, is to be adopted, it must be done by the courts or the legislature.
99-ORD-40, p. 6.
We continue to ascribe to the view that in approving a ten cents per page copying charge the courts and this office have struck 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. Consistent with the position set forth above, and the supporting authorities cited, we find that the City of Stanford subverted the intent of the Open Records Act, short of denying inspection, when it charged Mr. Clay twenty cents per page for copies of public records, and that it is statutorily obligated to recalculate its copying charge to reflect either its actual costs of four cents per page or no more than ten cents per page.
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.
Footnotes
Footnotes
1 Sometime earlier, Ms. Gooch had furnished Mr. Clay with 860 pages which were not responsive to his request. At that time, he was charged $ 172.00, based on a copying charge of twenty cents per page.
2 In 01-ORD-114, the Attorney General held that the Danville Department of Public Safety subverted the intent of the Open Records Act, short of denying inspection, by imposing a fifteen cent per page copying charge for records in hard copy format, and a twelve dollar per hour copying charge for audio recordings based on "research time." We concluded that "it is improper for . . . any public agency to impose a copying charge that exceeds its actual costs . . . ."
3 Ms. Gooch noted that she had provided Mr. Clay with copies of an audio tape and computer disk at no charge.
4 Ms. Gooch also furnished this office with statements from six local government officials documenting copying charges of twenty-five cents to fifty cents per page.
5 The method used toestimate costs involved in copying records is thus:$ 0.026 -Copy machine maintenance based on maintenance contract peryear divided by average of 14,632 copies per year$ 0.0069 -oner per copy$ 0.0054 -Paper per copy$ 0.0383 -Total per copy
6 We note that KRS 61.876(1) requires each public agency to adopt rules and regulations that conform to the Open Records Act, including "the fees, to the extent authorized by KRS 61.874 or other statute, charged for copies," and to display those rules and regulations in a prominent location accessible to the public. As noted, KRS 61.876(3) authorizes the Finance and Administration Cabinet to promulgate uniform rules for all state administrative agencies. The Cabinet has done so at 200 KAR 1:020, which includes the maximum ten cents per page copying charge. These provisions have been construed by the Attorney General to mean that if a public agency has not adopted and posted its own rules and regulations, the Cabinet's rules an regulations are deemed to apply to that agency, and the agency is restricted to charging ten cents per page for copies. OAG 81-269; OAG 84-268; OAG 84-300; OAG 92-30.