Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Lancaster Police Department violated the Open Records Act in its disposition of Ann Nicole Henson's request for a copy of its policies and procedures manual and information regarding those policies and procedures. For the reasons stated below, we find that the Lancaster Police Department subverted the intent of the Act, short of denial of inspection, by charging costs for staff time expended in copying the materials, but did not violate the Act in failing to provide information regarding the policies and procedures.
By letter dated February 25, 2019, Ann Nicole Henson ("Appellant") submitted a request to the Lancaster Police Department ("Police Department") for a copy of "the most recent operational Policy and Procedures of the Police Department in its entirety." She also requested that the Police Department include certain other information:
[T]he last date of revision, the detail(s) pertaining to that particular revision or set of revisions, the party/parties responsible for revision, schedule of revisions, how and when revisions are officially adopted by the Lancaster Police Department, and the number of Lancaster Police Department Policy and Procedure manuals which have been issued within the past ten (10) years. Please also define whether or not this manual is available in digital format or in print format, only.
Appellant stated that she was not making her request for a commercial purpose.
Chief of Police Rodney Kidd, responded by letter dated February 27, 2019, stating:
As per your request I am informing you that the material you requested can only be provided in the print format, and the total price of this material will be one hundred and thirty dollars and fifty cents ($ 130.50). The print material you have requested has a total of five hundred and fifty-two pages (552) in two separate volumes. These costs will not be waived [due] to the manpower required to copy each volume, price of materials and shipping.
By letter of March 4, 2019, Appellant "accept[ed] and approv[ed]" the cost set forth by the Police Department for the copies, but objected to the Police Department's failure to answer her requests for information regarding the last date of revision, schedule of revisions, etc. On appeal, the Police Department generally indicated that the Open Records Act does not address requests for information, such as those made by Appellant.
Requests for Information . Appellant's primary complaint on appeal is that the Police Department declined to respond to her information requests. Requests for information are outside the scope of the Open Records Act, and an agency is not obligated to honor a request for information. 02-ORD-88; KRS 61.870, et seq. The Kentucky Open Records Act addresses requests for records, not requests for information. 03-ORD-028. In 95-ORD-131, the Attorney General observed:
Requests for information, as distinguished from records, are outside of the scope of the open records provisions. See, e.g., OAG 89-77. Our position is premised on the notion that "[o]pen records provisions address only inspection of records . . . [and] do not require public agencies or officials to provide or compile specific information to conform to the parameters of a given request.
Accordingly, the Police Department's failure to respond to requests for information regarding its policies and procedures, did not violate the Open Records Act.
Copying Costs . While not specifically argued in the appeal, this office is compelled to address the obvious issue of whether the copying costs assessed by the Police Department are in compliance with the Open Records Act. Resolution of this issue turns on KRS 61.874(3), pursuant to which:
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 .
(Emphasis added.)
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. 1 The fee is thus limited to the proportionate cost of maintaining copying equipment by purchase or rental, and the supplies involved. The Police Department included the staff time ("manpower" ) involved in answering the request and such inclusion is specifically prohibited by KRS 61.874(3) (". . . a reasonable copying fee . . . but not including the cost of staff required .") (Emphasis added).
In Friend v. Rees, 696 S.W.2d 325 (Ky.App. 1985), the Kentucky Court of Appeals held that 10 cents per page was a reasonable copying charge under the Open Records Act. In 99-ORD-40, this office recognized that charging a 10 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.
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 10 cents per page, any copying fee which exceeds that amount is presumptively excessive. OAG 87-80; 92-ORD-1491; 94-ORD-77; 99-ORD-186; 01-ORD-136; 03-ORD-224; 04-ORD-217; 05-ORD-194; 06-ORD-147. See 08-ORD-021 (the courts, the legislature, and this office have "refused to countenance copying fees in excess of ten cents per page unless the agency substantiated actual costs greater than this amount, based exclusively on the cost of the medium and mechanical processing, or the agency was relying on a specific statutory enactment authorizing a higher copying charge"). At 10 cents per page, the cost of the 552 pages of requested records, minus postage, would be $ 55.20. Although the Police Department did not separate the postage cost, it certainly would be less than $ 75.30 dollars, the difference between the $ 130.50 the Police Department charged and the $ 55.20 cost of copies at 10 cents per page. Under these circumstances, we must conclude that the Police Department subverted the intent of the Open Records Act, short of denial, by charging an excessive copying fee.
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
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