23-ORD-258
September 25, 2023
In re: Meg Jamison/Wolfe County Clerk
Summary: The Wolfe County Clerk (“the Clerk”) subverted the intent
of the Open Records Act (“the Act”), within the meaning of
KRS 61.880(4), when she imposed an excessive fee to reproduce a record.
The Clerk also subverted the Act by charging a fee for a physical copy of
an electronic record she was unable to redact electronically. However,
the Clerk did not subvert or violate the Act when she did not tailor a
record to meet the formatting specifications of the requester.
Open Records Decision
Meg Jamison (“Appellant”) submitted two requests to the Clerk for records
related to the May 2023 primary elections. Specifically, she sought a copy of “video
surveillance tapes of the election machines from 6:00 p.m. on May 16, 2023, to 6:00
p.m. on May 17, 2023.” 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. In a timely response,
the Clerk invoked KRS 61.872(5), stating the requested surveillance video was “in
active use” and could not be provided until June 16, 2023, which was the first day
after the primary election on which the surveillance was permitted to end. See
KRS 117.295(1). The Clerk further advised the Appellant should “be prepared to pay
for the cost of a media storage device capable of storing the requested amount of video
footage” in addition to applicable mailing costs. However, with respect to the
Appellant’s second request, the Clerk advised she did not possess the requested voter
signature roster because it had “not yet been produced as of” the date of the request.
In the weeks following her original request, the Appellant and the Clerk
exchanged emails about the status of the requested records. The Clerk advised she
had received an electronic copy of the voter signature roster from the vendor, but theClerk needed to redact from it addresses and dates of birth of the voters. The Clerk
stated she intended to print the voter signature roster and manually redact the
printed copy. As a result, the Clerk advised the “cost for the copies will be $226.50.”
By separate email, the Clerk also provided the Appellant with a quote from a vendor
who would retrieve the requested surveillance video in the amount of $17,500. The
Appellant then initiated this appeal, primarily objecting to the costs the Clerk had
imposed to obtain the requested records. However, the Appellant also claims the
Clerk should provide her with an electronic copy of the voter signature roster in the
file format she requested.
“If a person feels 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 person may complain in writing to the Attorney General, and the complaint shall
be subject to the same adjudicatory process as if the record had been denied.”
KRS 61.880(4). Originally, the vendor’s invoice reflected a charge of $15,000 for
“labor” costs and $2,500 for “equipment,” for a total charge of $17,500. However, on
appeal, the Clerk states the vendor’s initial quote was erroneous. Rather, the vendor
claims the actual cost of labor to reproduce the video is $1,500, and the cost for
equipment is $250, for a total cost of $1,750.
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) (emphasis added). In numerous recent decisions, the
Office has been asked to adjudicate the propriety of the fee vendors charge county
clerks to obtain copies of the surveillance video required to be maintained under
KRS 117.295, which the county clerks propose to thereafter pass on to the requesters.
The fees charged have ranged from as low as $75 to as high as $500. Compare 23-
ORD-172 (involving a $75 fee) with 23-ORD-178 (involving a $500 fee); see also 23-
ORD-158 n.1 (involving a $150 fee); 23-ORD-215 (involving a $315 fee). In each of
these decisions, relying on KRS 61.874(3), the Office held the county clerks could
recover the “actual cost” incurred to reproduce the video. However, the Office noted
in 23-ORD-178 that $500 was the maximum fee that had been charged thus far, and
the Office questioned its reasonableness. And in each of these decisions, the Office
focused on whether the fee being charged reflected the “actual cost” of reproduction;
however, the provision of KRS 61.874(3) stating an agency may only prescribe a
“reasonable fee” was not squarely at issue. While it is true on the one hand that the
statute deems any fee exceeding the actual cost of reproduction to automatically be
unreasonable, it is not necessarily true on the other hand that any fee reflecting the
actual cost will automatically be deemed “reasonable.”1
1
To the extent any statement in 23-ORD-178 can be read otherwise, the Office clarifies that the
“actual cost” is not automatically to be considered “reasonable” under KRS 61.874(3).Here, the fee the Clerk intends to charge the Appellant is three times higher
than the highest amount the Office is aware any other county clerk has charged to
reproduce an identical record.2 Accordingly, the Office asked the Clerk to provide
additional information to substantiate the propriety of the fee. See KRS 61.880(2)(c).
In response to the Office’s request, the vendor, which is located in Paducah, states it
is “only” charging the Clerk for travel to and from Wolfe County—a round trip it
estimates will take 10 hours at a rate of $150 per hour. The vendor states it is not
charging the Clerk for the actual time it will take to reproduce the video on site. But
if the vendor is not charging the Clerk for the actual time needed to reproduce the
record, then the Clerk is not incurring an actual cost to reproduce the record. It is not
the Appellant’s fault the Clerk has chosen a vendor located five hours away to
reproduce the requested record, and there is no basis to conclude the Act permits an
agency to recover travel expenses associated with reproducing a record. Moreover,
the vendor’s original mistake of misquoting the “actual cost” by tenfold calls into
question the validity of its newest quote. Simply put, $1,750 to produce the same
record several other county clerks have produced for a fraction of that cost is not
“reasonable” under KRS 61.874(3). As such, the Clerk subverted the intent of the Act
by imposing an excessive fee on the Appellant.
In 23-ORD-178, the Office also addressed the Appellant’s second objection
relating to fees—the cost associated with redacting the voter signatures roster that
exists in electronic form. As stated in that decision:
While it was proper for the Clerk to redact from the records dates of
birth, the Court of Appeals has held that an agency may not pass on the
costs of redaction when reproducing records for a noncommercial
purpose. See Dep’t of Ky. State Police v. Courier Journal, 601 S.W.3d
501, 508 (Ky. App. 2020) (the agency’s inability to redact records in its
database other than by manual redaction did not permit it to pass on
the reproduction costs to the requester). Accordingly, the Clerk violated
the Act by imposing an excessive fee that did not reflect the “actual cost”
of reproducing the electronic signature rolls because the only cost
incurred was to redact the record.
The same is true here. The only reason the Clerk has incurred a cost to reproduce the
voter signature roster is because she is unable to redact the electronic copy the vendor
provided to her.3 But just as the Kentucky State Police could not pass on to the
requester the cost of redacting electronic copies of its police citations, the Clerk may
2
The Office notes it has received more than 25 appeals related to the surveillance video of the
election equipment from the May 2023 primary elections.
3
The Office notes that inexpensive software exists that will permit the Clerk to redact PDF files,
which the Clerk might consider purchasing for this very purpose.not pass on to the Appellant the costs associated with redacting its electronic voter
signature roster.
Finally, the Office has also addressed in previous decisions the Appellant’s
objection to not receiving the electronic record in a particular format. See, e.g., 23-
ORD-210; 23-ORD-211. “If a public agency is asked to produce a record in a
nonstandardized format, or to tailor the format to meet the request of an individual or
a group, the public agency may at its discretion provide the requested format and
recover staff costs as well as any actual costs incurred.” KRS 61.874(3) (emphasis
added). But it is the State Board of Elections—not the county clerks—that determines
in which format the record the Appellant has requested will exist. See
KRS 117.025(3)(d); see also 23-ORD-210. Any request to obtain the voter signature
roster in a format other than that designated by the State Board of Elections, and
which is produced by the vendors in compliance with that designation, is a request to
tailor a public record to a particular format that need not be honored by the county
clerks. See, e.g., 23-ORD-210. As such, the Clerk did not violate the Act when she did
not provide the voter signature roster in the format requested by the Appellant.
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. 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/ Marc Manley
Marc Manley
Assistant Attorney General
#316
Distributed to:
Meg Jamison
Corinna Groves