March 23, 1994
IN RE: Stephen D. Wolnitzek/City of Ft. Wright
OPEN RECORDS DECISION
This appeal originated in a request for public records submitted by Mr. Stephen D. Wolnitzek to the Official Custodian of Records for the City of Ft. Wright on February 23, 1994. Mr. Wolnitzek requested access to the Operational Review and Evaluation of the Ft. Wright Police Department prepared by Professor Steven C. Beck, and presented to the City Council of Ft. Wright in late 1991. On behalf of the City of Ft. Wright, City Attorney Patricia M. Summe initially denied Mr. Wolnitzek's request, arguing that the report was preliminary in character. She subsequently agreed to release a copy of the report at a cost of twenty-five cents per page, for a total of $11.75. Mr. Wolnitzek responded that in view of the Kentucky Court of Appeals' holding in Friend v. Rees, Ky.App., 696 S.W.2d 325 (1985), and this Office's opinions in OAG 92-79 and OAG 91-210, the City of Ft. Wright may reasonably charge only ten cents per page for reproducing public records. He asks that the Attorney General issue a decision consistent with this view.
We are asked to determine if the City of Ft. Wright violated the Open Records Act by charging Mr. Wolnitzek twenty-five cents per page for copies of public records. For the reasons set forth below, we conclude that twenty-five cents per page is not a reasonable copying charge within the meaning of KRS 61.874(2). If the City charges more than ten cents per page, it has the burden of establishing that this is not an excessive fee.
KRS 61.874(2) provides:
The public agency may prescribe a reasonable fee for making copies of public records which shall not exceed the actual cost not including the cost of staff required.
This provision has been interpreted to mean that the fee charged for copies should be based on the actual expense of the agency, not including the cost of staff. OAG 80-421; OAG 82-396; OAG 84-91; OAG 88-74; OAG 89-9; OAG 90-50; OAG 91-98; OAG 91-200. The fee is thus limited to the cost of maintaining copying equipment by purchase or rental, and the supplies involved. In Friend v. Rees, supra, the Court of Appeals held that ten cents per page was a reasonable reproduction fee under the Open Records Act.
In OAG 90-50, we dealt with the fee provisions of KRS 61.874(2). There we held that on the basis of the facts presented, twenty-five cents per page was not a reasonable fee. Pursuant to KRS 61.880(2) and KRS 61.882(3), the City of Ft. Wright has the burden of proof relative to the fee it charges for copying public records, and must substantiate on the basis of the factors set forth in KRS 61.874(2) that its copying fee is not excessive. Based on the authorities cited, however, we conclude that twenty-five cents per page is an excessive copying fee.
The City of Ft. Wright may challenge this decision by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
Hon. Patricia M. Summe
City of Ft. Wright
3384 Madison Pike
Ft. Wright, KY 41017
Hon. Stephen D. Wolnitzek
Smith, Wolnitzek, Schachter and
Attorneys At Law
502 Greenup Street
P. O. Box 352
Covington, KY 41012-0352