December 14, 1994








IN RE: Roy A. Brockett, Jr.,/Henderson Police Department





This appeal originated in a request for public records submitted by Mr. Roy A. Brockett, Jr., to the Henderson Police Department on August 15, 1994. Mr. Brockett, an inmate at Western Kentucky Correctional Complex, requested copies of various documents relating to his criminal case, number 93-CR-00036, including the uniform citation, witness statements, and police officers' "statements." Mr. Brockett acknowledges that he received a number of records, including pages 4 through 20 of Ms. Corene C. Royster's statement, but that he did not receive pages 1, 2, and 3 of that statement. Moreover, Mr. Brockett asserts that he did not receive a copy of Ms. Bea Lyons's statement, to which Detective Earl E. Brandon referred in Mr. Brockett's preliminary hearing. Finally, Mr. Brockett objects to the 75 cents per page copying charge assessed by the Henderson Police Department for the 82 pages of documents the Department provided.


Lt. Col. Rickey D. Riley, Deputy Police Chief, subsequently furnished this office with copies of the 82 pages which Mr. Brockett received. In a cover letter, Lt. Col. Riley explained that the records were given to Mr. Brockett's wife, Connie, on August 18, and acknowledged that the Department charged her 75 cents per page. In an earlier conversation with an employee of this office, he indicated that Mr. Brockett had, in fact, received the records that he claimed were withheld.









All of the documents were contained in the 82-page packet, although perhaps not easily identifiable or segregable as such. The ostensibly omitted pages 1, 2, and 3 were the uniform offense report and citation which appear as pages 1, 2, and 3 of the 20 page investigative report submitted by Det. Brandon. Within those 20 pages, Ms. Royster's and Ms. Lyons's "statements" appear. Our review of the documents confirms this fact.


The issue presented in this appeal is whether the Henderson Police Department violated the Open Records Act in responding to Mr. Brockett's request. For the reasons set forth below, we conclude that although the Department improperly assessed a 75 cent per page copying charge for the requested records, its actions were otherwise consistent with the Act.


We begin by noting that KRS 61.880(1) sets forth the duties and responsibilities of a public agency relative to a request received under the Open Records Act. Subsection (1) of that provision requires that a public agency, upon receipt of a request for records under the Act, respond in writing to the requesting party within three working days of receipt of the request, and indicate whether the request will be granted. The Henderson Police Department responded to Mr. Brockett's request within three working days by releasing the records he sought to his wife. The Department thus complied with the procedural requirements of the Open Records Act.


Moreover, our review of the 82 pages sent to Mr. Brockett confirms Lt. Col. Riley's assertion that the records Mr. Brockett sought were released to him. While the records may not be easily recognizable as Ms. Royster's and Ms. Lyons's statements, those statements are contained in the materials which the Department furnished to him. As this office has previously observed, the Open Records Act does not provide for, and public agencies are not required to provide, instruction in understanding the meaning or import of information which appears upon the records produced. OAG 89-91. The public agency discharges its duty when it releases all records which satisfy the requester's request.


Nevertheless, it is the opinion of this office that the Henderson Police Department violated KRS 61.874 by imposing an excessive copying charge for the records provided. KRS 61.874(3) states:









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. 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.


Although the copying fee provisions of the Open Records Act were substantially amended in the 1994 General Assembly, it is our view that those amendments do not alter the premise that the agency may only assess a reasonable copying charge for public records not to exceed its actual costs, excluding staff time required. This office has long recognized that unless an agency can document that its actual costs are greater than 10 cents per page, both the courts and this office are unwilling to countenance higher copying charges. See, e.g., Friend v. Rees, Ky.App., 696 S.W.2d 325 (1985); OAG 80-421; OAG 82-396; OAG 84-91; OAG 87-80; OAG 89-9; OAG 91-193; OAG 91-200; 92-ORD 1491; 94-ORD-77. We believe that this rule still applies when a request is made for hard copies of public records, and the requester's purpose is a noncommercial one.


In OAG 90-50, this office expressly held that a 25 cent copying charge was excessive when that fee was not based upon the agency's actual cost, exclusive of personnel costs. In Friend v. Rees, supra, the Kentucky Court of Appeals held that 10 cents per page was a reasonable copying charge under the Open Records Act. Unless the Henderson Police Department can demonstrate that its actual cost for reproducing records is greater than 10 cents per page, based on the cost of media and mechanical processing as defined in KRS 61.870(7) and (8), it must recalculate its copying fee to conform to the requirements of KRS 61.874.


Mr. Brockett and the Henderson Police Department may challenge this decision by initiating action in the appropriate circuit court. 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.













Distributed to:


Lt. Col. Rickey D. Riley

Deputy Police Chief

Henderson Police Department

101 North Water Street

Henderson, KY 42420-3148


Mr. Roy A. Brockett, Jr. #99682

Western Kentucky Correctional Complex

P.O. Box 5000

Eddyville, KY 42038-5000