23-ORD-215
August 14, 2023
In re: Bobbie Coleman/Harlan County Clerk
Summary: The Harlan County Clerk (the “Clerk”) violated the Open
Records Act (“the Act”) when she imposed a fee in excess of the actual
cost to reproduce a record.
Open Records Decision
On May 23, 2023, Bobbie Coleman (“Appellant”) emailed a request to the Clerk
to inspect surveillance videos of the election machines used for the May 2023 primary
elections that were recorded between 6:00 p.m. on May 16, 2023, and 6:00 p.m. on
May 17, 2023.1 In a timely response, the Clerk granted the request, but advised that
the cost of a flash drive on which to copy the video, plus labor and shipping costs, “will
range between $300-400.” The Appellant then initiated this appeal, alleging the Clerk
had imposed an excessive fee.
The Clerk “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). The vendor’s fee is an “actual cost of” reproducing the
requested record incurred by the Clerk. See, e.g., 23-ORD-178 (vendor charged $500
to reproduce a surveillance video); 23-ORD-158 n. 2 (vendor charged $150 to
reproduce a surveillance video). The vendor’s fee is no different than the fee charged
by banks to reproduce copies of checks, which this Office has found can be passed on
1
The Appellant also sought, “in spreadsheet format (.csv or .xlsx) [the Clerk’s] complete voter sign-
in rosters for every precinct, absentee, early, and election day voters from the May 2023” primary
election. However, the Appellant does not challenge the Clerk’s disposition of that request.to the requester as an “actual cost of reproduction.” See, e.g., 16-ORD-239; 14-ORD-
177; 10-ORD-140.
Here, the Clerk provides an estimate from the vendor stating its labor cost to
retrieve the video is $315.00, which is based on an estimated 4.5 hours of work at the
rate of $70.00 per hour. If the vendor, in fact, requires 4.5 hours to retrieve the video,
then the estimate will reflect the actual cost of reproducing the video. In that case,
the cost charged by the vendor to the Clerk would be a recoverable cost under
KRS 61.874(3).
However, the vendor’s estimate also reflects a charge for two USB flash drives.
Each drive costs $16.25. The vendor states two are necessary because “the DVR
doesn’t store the files indefinitely and if a copy isn’t retained any future requests for
the same files” would be unavailable “without this archive copy.” While the Clerk may
recoup from the Appellant the $16.25 cost of the one flash drive that will be sent to
her, consistent with KRS 61.874(3), the Clerk may not also charge the Appellant for
the flash drive she will retain to respond to future requests for the same record.
Accordingly, the Clerk imposed an excessive fee by charging an additional $16.25 for
the second flash drive.
A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court under KRS 61.880(5) and KRS 61.882 within 30 days from
the date of this decision. Under 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/ Marc Manley
Marc Manley
Assistant Attorney General
#236
Distributed to:
Bobbie Coleman
Ashley Sullivan