Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the City of California violated, or subverted the intent of, the Kentucky Open Records Act in the disposition of Ann M. Sparks' request for "a copy of the minutes of all meetings held by the City of California, KY Commission, regular or otherwise, for the period of January 2008 to present, in addition to a copy of all Treasurer's reports for the same period." Upon receiving notification of Ms. Sparks' appeal from this office, City Attorney Richard A. Woeste advised that Ms. Sparks' request would be honored upon receipt of postage and the copying fee of "25 cents per page." In response to an inquiry from the undersigned counsel, Mr. Woeste subsequently forwarded a copy of the letter he directed to Ms. Sparks on November 24, 2008, confirming that all of the documents requested were enclosed with her copy, and requesting that Ms. Sparks remit the copying fee of ".25 per page" for a total of $ 4.50. Although KRS 61.874(1) authorizes the City to require "advance payment of the prescribed fee, including postage where appropriate," and KRS 61.874(3) authorizes a "reasonable fee" 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," the courts and this office have long recognized that a fee of 10 [cents] per page is a reasonable charge for the reproduction of standard hard copy records. Based upon
Friend v. Rees, Ky. App., 696 S.W.2d 325 (1985), and numerous decisions of the Attorney General, this office finds that the City subverted the intent of the Open Records Act, short of denial, and within the meaning of KRS 61.880(4), by imposing a fee in excess of this amount. 1
Noticeably absent from the City's response is any explanation to justify imposition of the specified fee. Because the City has failed to substantiate that 25 [cents] for each page reflects the actual costs incurred in reproducing the requested public records, this office must conclude that the fee is excessive and subverts the intent of the Act within the meaning of KRS 61.880(4). In our view, the analysis contained in 01-ORD-136 and 08-ORD-171 is controlling on the sole question presented; a copy of each decision is attached hereto and incorporated by reference. By approving a charge of 10 [cents] per page, both 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." 01-ORD-136, p. 7. Unless the City can substantiate that the actual cost of reproducing the records is equal to 25 [cents] per copy, the City must recalculate its copying fee to conform to the requirements of KRS 61.874(3) as construed in 01-ORD-136, 08-ORD-171, and the authorities upon which those decisions are premised.
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.
Footnotes
Footnotes
1 Because the City has agreed to provide Ms. Sparks with all of the records in dispute upon receipt of payment, any other issues raised are moot per 40 KAR 1:030, Section 6.