23-ORD-159
July 5, 2023
In re: Brandon Thomas/Ohio County 911 Central Dispatch Center
Summary: The Ohio County 911 Central Dispatch Center (“the
agency”) subverted the intent of the Open Records Act (“the Act”), within
the meaning of KRS 61.880(4), when it did not meet its burden to show
that fees assessed for copies of audio records reflected its actual costs of
reproduction, as required under KRS 61.874(3).
Open Records Decision
On May 22, 2023, Brandon Thomas (“Appellant”) requested copies of all
“[a]udio and printed records” related to towing between January 1 and May 22, 2023,
“[i]ncluding all city and county agencies within Ohio County.” According to the
Appellant, he was informed the copying fee for audio recordings was $10.00 each.1
The Appellant therefore amended his request to seek printed records only, but
initiated this appeal to seek a determination that the fee for audio recordings was
excessive.
Under KRS 61.880(4), a person requesting records may appeal to the Attorney
General if he believes “the intent of [the Act] is being subverted by an agency short
of denial of inspection, including but not limited to the imposition of excessive fees.”
The Act provides that a “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.” KRS 61.874(3). Under KRS 61.880(2)(c), a public agency
bears the burden of proof that its copying fees reflect the actual cost of reproduction.
1
To substantiate this claim, the Appellant provides a blank “Open Record Request” form used by
the agency, which quotes a rate of “$10 for copy of CAD [Computer Aided Dispatch], $10 for Recording
of Call.”On appeal, the agency states it will provide the audio records to the Appellant
at the rate of 10 cents per recording instead of the $10.00 rate previously quoted.
However, the agency still has the burden of substantiating its actual costs. In
response to inquiries from this Office, the agency has indicated it will provide the
audio files on a CD, the actual cost of which is 27 cents. Thus, if the agency provides
more than two audio files at 10 cents per file on one CD, the fee will exceed the cost
of the CD.
In addition to recovering the “actual cost of reproduction” under KRS 61.874(3),
a public agency may charge a “mechanical processing cost,” or the proportionate cost
of maintaining copying equipment. Here, the agency asks this Office to consider that
“the system used to process CADs costs [the agency] around $3,700.00 per month with
the computers used to record about $3,466 each (3 total computers)” and “[t]he
computer with disc drawer costs approximately $649.00.” However, the agency
admits that all this equipment is “certainly used for business activities and duties of
[the agency] in general,” and therefore, these equipment expenses “are not solely
related to reproduction of records cost.” The agency further admits that “[i]t is
difficult to allocate these costs so [the agency is] reviewing same to see what the true
cost to [sic] be,” but in this case, “10 cents will be charged” for each audio recording.
In other words, the agency claims it incurs mechanical processing costs
associated with reproducing the audio files in addition to the actual cost of the CD
but is unable to quantify them. Because the agency bears the burden of proof under
KRS 61.880(2)(c), this Office must conclude it has failed to substantiate any actual
costs above the cost of the CD itself, which the agency admits is 27 cents. Therefore,
the agency subverted the intent of the Act within the meaning of KRS 61.880(4) by
imposing an excessive fee.
A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882 within 30 days
from the date of this decision. 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 proceedings. The Attorney General will accept notice of
the complaint emailed to OAGAppeals@ky.gov.
Daniel Cameron
Attorney General
s/ James M. Herrick
James M. Herrick
Assistant Attorney General#238
Distributed to:
Mr. Brandon Thomas
Mr. David R. Bullock
Justin Keown, Esq.