[1994/oagheade.htm]

OAG 94-38

May 23, 1994

Hon. William Grover Arnett

Magoffin County Attorney

P. O. Box 648

Salyersville, Kentucky 41465

Re: Fees Charged by County Clerk for Certain Documents.

Dear Mr. Arnett:

By letter of April 8, 1994, you posed questions concerning (1) per page charges imposed by the Magoffin County Clerk, for providing to the fiscal court, certified copies of minutes of its meetings, and (2) per page charges imposed on some members of the public for copies of various documents.

In our view the county clerk (1) cannot lawfully impose upon the fiscal court a separate charge for certified copies of minutes of fiscal court meetings furnished to the fiscal court for its use, and, (2) in imposing copying charges upon the general public, may lawfully charge only the specific amount provided by statute, where applicable, and otherwise, only a reasonable fee not exceeding the actual cost of such copies, not including the cost of staff required to furnish copies. Discussion follows.

As we understand it from your letter, the Magoffin Fiscal Court is concerned about a charge of $3.50 per page which the county clerk imposes for supplying to the fiscal court, for its use, a certified copy of the court's minutes. The court believes, your letter indicates, that copy charges for these items should be included in the Clerk's salary. An additional question is whether the clerk is allowed to charge the public $1.00 per page for copies of deeds, wills, or other items duplicated in his office.

Certified Copy of Fiscal Court Minutes

As to imposing a charge of $3.50 upon the fiscal court for supplying to the court a certified copy of its minutes from copies for general distribution to the public, we believe furnishing such copy is a part of the clerk's role as clerk of the fiscal court pursuant to KRS 67.120(1), and that the clerk cannot require the fiscal court to pay a separate charge of $3.50 per page for supplying such copies.

KRS 67.120(1) provides, in part, that:

Except in counties containing a city of the first class, the county court clerk, at his option, shall be the clerk of the fiscal court. He shall attend its sessions and keep a full and complete record of all its proceedings, with a proper index. For his services as clerk of the fiscal court he shall receive an annual salary fixed at a reasonable amount by the fiscal court and paid in monthly installments out of the county treasury.

Where, as is presumably the case in Magoffin County, the county clerk serves as the "clerk of the fiscal court," is paid a salary in such regard, and in such capacity is required to maintain a complete record of the court's proceedings, the fiscal court may request a certified copy of its minutes from the county clerk in his or her capacity as clerk of the fiscal court. In such circumstance the fiscal court's request for a certified copy of the minutes of its meetings is made to the county clerk in the clerk's capacity as clerk of the fiscal court, such that the fees of the county clerk (KRS 64.012) do not apply to such request. The "clerk of the fiscal court" must supply a certified copy of the minutes of fiscal court meetings to the court as an integral part of the statutory duties of the clerk of the fiscal court. For general reasoning in support of this view (although dealing with an early version of what is now KRS 67.120(1)), see Nuetzel v. Barr, 180 Ky. 196, 202 S.W. 499, 500 (1918), and see, Goodlett v. Anderson County, 267 Ky. 166, 101 S.W.2d 421, 423-424 (1936).

In imposing a charge of $3.50 per page on the fiscal court, for certified copies of minutes of its meetings, the county clerk is presumably relying upon KRS 64.012. Within such statute is a provision stating: "Copy and certification of same when ordered ........... $3.50." It might be argued that this provision relates to a copy of a deed or trust. Without belaboring the matter, we believe that the fiscal court in seeking a certified copy of its minutes from the county clerk is actually seeking such records from its own clerk, who must keep such records pursuant to KRS 67.120(1). The fiscal court, in our view, is entitled to have such record provided by its own employee without separate charge. KRS 67.120(1), Neutzel, above.

Copy Charges Imposed Upon the General Public

As to per page charges imposed by the county clerk for furnishing copies of various documents to the public, the clerk must charge all requesters only the specific charge provided for by statute, where a request is made for a copy of a document for which a specific charge is provided. As to furnishing copies of documents for which a specific charge is not provided by statute, the county clerk may impose only that charge which is in keeping with KRS 61.874(2). That statute authorizes only a "reasonable fee for making copies of public records which shall not exceed the actual cost not including the cost of staff required." In keeping with the principle of equal protection of the law (Constitution of Kentucky �3), such charge should be imposed uniformly as against all requesters.

In Opinion of the Attorney General (OAG) 80-421, cited in a 1987 opinion of this office addressed to the Magoffin County Clerk (OAG 87-80), we indicated a $1.00 per page charge was unreasonable. In OAG 82-396 we indicated that under the facts there involved a charge of 50� per page was unreasonable.

The actual cost of copies not including staff costs is all that may be charged unless a specific charge for a given type of record is provided for by statute. See OAG 92-79, copy enclosed, noting that in Friend v. Rees, Ky.App., 696 S.W.2d 325 (1985), the court held that ten cents per page was a reasonable reproduction fee under Kentucky's Open Records Act.

The Magoffin Fiscal Court might want to issue a written request to the county clerk to comply with the views expressed in this opinion. Should the county clerk refuse to comply, presumably an appropriate civil action seeking compliance would have to be filed in the Magoffin Circuit Court by an entity or individual with legal standing to maintain such action.

Sincerely,

CHRIS GORMAN

ATTORNEY GENERAL

Gerard R. Gerhard

Assistant Attorney General