Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Covington Fire Department (CFD) subverted the intent of the Open Records Act, short of denial and within the meaning of KRS 61.880(4), by imposing an excessive fee to provide Chris Henson with a copy of the "fire incident report" he requested on December 22, 2015. Mr. Henson received an invoice asking him to remit payment in the amount of $ 5.00 for a copy of the report plus $ 2.00 for the cost of mailing. In his January 9, 2016, appeal, Mr. Henson asserted that $ 5.00 was an excessive fee to charge for a total of twelve (12) pages, relying upon KRS 61.874(1) and (3), as well as Friend v. Rees, 696 S.W.2d 325 (Ky. App. 1985), in support of his position. 1
The Office of the City Solicitor responded to Mr. Henson's appeal on behalf of the CFD, acknowledging that the CFD charged Mr. Henson an excessive fee and postage in relation to his December 22, 2015, request. The CFD "modeled its fees based on the Covington Police Department's policies" in assessing the $ 5.00 fee as it was unaware that a $ 5.00 fee can only be charged for accident reports filed with the Kentucky State Police under KRS 189.635(7) and 502 KAR 15:010. However, in order to resolve this matter the CFD has now issued an updated invoice to Mr. Henson reflecting the actual costs of copying and postage, a copy of which the Office of the City Solicitor attached to its appeal response (12 pages @ $ 0.10 each plus $ 0.93 for postage) . Because Mr. Henson had not remitted any payment before the CFD corrected its error, it maintained that "no fee issues remain." In addition, the "City is currently working with the [CFD] on methods to properly calculate open records invoices as to avoid any issues in the future."
KRS 61.874(3) authorizes public agencies to "prescribe a reasonable fee for making copies of nonexempt public records . . . 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." In addition, KRS 61.874(1) provides that when copies are requested, a public agency "may require a written request and advance payment of the prescribed fee, including postage where appropriate." However, in Friend v. Rees, 696 S.W.2d 325 (Ky. App. 1985), the Kentucky Court of Appeals held that 10 cents per page is a reasonable charge for the reproduction of standard hard copy records. For this reason, the Attorney General has consistently held that unless a public agency can substantiate that its actual cost for making photocopies, i.e. , reproduction, is greater than $ 0.10 per page, any copying charge in excess of this amount is presumptively excessive. See 01-ORD-136; 08-ORD-171.
Based upon the foregoing, this office finds that "although the original fee imposed by the [CFD] was excessive, its subsequent recalculation of the fee in a manner consistent with the cited authorities mitigated this error." 05-ORD-214, p. 4. In light of the "corrective measure subsequently taken, the [CFD] cannot be said to have subverted the intent of the Open Records Act within the meaning of KRS 61.880(4)." Id.
Either party may appeal this decision may appeal by initiating action in the appropriate circuit court per 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.
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