NOT TO BE PUBLISHED
December 23, 1996
In re: Gene Weaver/City of Erlanger Police Department
Open Records Decision
This matter comes to the Attorney General on appeal from the City of Erlanger Police Department's response to Gene Weaver's request for copies of photographs of an automobile accident. On behalf of the Erlanger Police Department, Sergeant Robert L. Arens responded to Mr. Weaver's request, advising him as follows:
Enclosed is the proof sheet of photos in regards to our accident investigation E96-11681.
Please use permanent marker to circle the photos requested. Each picture is $50.00 for one 8 x 10. Please make check payable to Erlanger Police Dept.
Shortly thereafter, city administrator Bill Scheyer agreed to adjust the photo processing charge to $10.00 per photograph. Mr. Weaver expresses the belief that this, too, is an excessive charge.
In a follow-up letter to this office, Frank A. Wichmann, city attorney, elaborated on the police department's response. He maintained that [w]hat Mr. Weaver is requesting isn't subject to K.R.S. 61.870 et seq., because what he is requesting isn't a copy of a photograph, but that a photograph be processed from a negative. In his view, the Open Records Act does not require that photographs be reproduced from negatives. Alternatively, he argued that in order to preserve the integrity of the negatives, the Erlanger Police Department must process the photographs. Noting that KRS 61.874 authorizes the imposition of fees, includ[ing] staff time and materials, when the copy is requested for commercial purposes, like that of Mr. Weaver, he offered assurances:
. . . that the cost to the City of Erlanger for the staff time and materials involved in processing a few photographs (rather than the volume amounts of commercial developers) are [sic] closer to the $50.00 first quoted to Mr. Weaver than the $10.00 to which the fee was reduced by Mr. Scheyer.
We are asked to determine if the City of Erlanger Police Department violated provisions of KRS 61.870 to KRS 61.884 in assessing a $10.00 reproduction charge for 8 x 10 photographs. For the reasons set forth below, and upon the authorities cited, we conclude that in the absence of proof substantiating that this charge reflects the department's actual cost, the department improperly assessed an unreasonable fee for making copies of nonexempt records in violation of KRS 61.874(3).
We begin by noting that KRS 61.870(2) defines the term public record as:
[A]ll books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency.
This definition specifically includes photographs within its terms. There can be little doubt that in adopting this expansive definition, the General Assembly intended to include negatives of photographs as well as the photographs themselves. In support, we note that the definition expressly provides that such records are encompassed by the Act regardless of physical form or characteristics. KRS 61.870(2). It is the opinion of this office that photo negatives maintained by a public agency are subject to the provisions of the Open Records Act.
It is a short logical step to the conclusion that a public agency which maintains photographs as negatives is obligated to reproduce those negatives upon written request and advance payment of the prescribed fee, including postage where appropriate. KRS 61.874(1). Photo processing is the routine procedure by which negatives are reproduced as photographs. What, then, is a reasonable fee for reproducing photographs from negatives?
Mr. Wichmann properly maintains that in order to safeguard the negatives, the duplication process must be conducted by the Erlanger Police Department. This is entirely consistent with KRS 61.874(1), which provides that the custodian shall ensure that . . . duplication will not damage or alter the original records. Noting that KRS 61.874 permits the police department to assess a reproduction fee, which includes staff time and materials since the request is made for a commercial purpose, he next maintains that the cost to the department is closer to the $50.00 first quoted to Mr. Weaver than the $10.00 to which the fee was reduced by Mr. Scheyer. Based on the United States District Court's recent opinion in Stephen Amelkin, D.C. v Commissioner, Department of State Police, Civil Action No. 3:94 CV-360-A (W.D. Ky. June 4, 1996) appeal docketed, No. 96-5942 (6th Cir. July 2, 1996), we believe that this position is inconsistent with the reasonable fee provision codified at KRS 61.874(3), and that the department has not adequately substantiated its costs under the factors set forth in that provision.
The City of Erlanger Police Department relies on the 1994 amendments to the Open Records Act in implementing a policy relative to copying charges which distinguishes between commercial and noncommerical use of public records. In Amelkin, the federal district court for the Western District of Kentucky analyzed the constitutionality of Senate Bill 351, which amended KRS 189.635 to prohibit disclosure of accident reports filed with the Department of State Police except under narrowly defined circumstances, and to certain identified individuals, specifically, insurers and media representatives. The bill was apparently aimed at discouraging direct solicitation of business for pecuniary gain, and had an immediate impact on attorneys and chiropractors who filed suit challenging the amendment. The court concluded that the statute, as amended, is unconstitutional, and, in its judgment, permanently enjoined defendants, including this office, from enforcing the 1994 amendments to KRS 189.635 and KRS 61.874, et seq., and . . . KRS 438.065.
Inasmuch as the 1994 amendments to the Act have been declared unconstitutional, including KRS 61.874(4)(a) 
and (c) , we believe that it is impermissible for the Erlanger Police Department to calculate copying charges based on these amendments. Pursuant to KRS 61.874(3), the copying fee for nonexempt public records, regardless of whether they are requested for a commercial or noncommercial use, must be based on 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. Thus, as this office has so often recognized, the fee is limited to the proportionate cost of maintaining the copying equipment by purchase or rental, and the supplies involved. See, e.g., OAG 80-421, OAG 84-91; OAG 87-80; OAG 90-50; 94-ORD-43; 95-ORD-82; 96-ORD-159.
Because it has the statutory burden of proof to sustain its actions, it is incumbent on a public agency to substantiate that its copying fee reflects only its actual costs, exclusive of personnel time. KRS 61.880(2)(c).  Mr. Wichmann argues that the cost to the City of Erlanger is closer to the $50.00 . . . than . . . $10.00 . . . , but offers no proof to support this broad assertion. In the absence of proof that the actual cost to the Erlanger Police Department to reproduce the negative as an 8" x 10" photograph is $10.00, we must conclude that there is insufficient proof establishing that the $10 fee is appropriate. We therefore hold that the Erlanger Police Department is directed to recalculate its copying fee based on the factors set forth in KRS 61.874(3), and charge Mr. Weaver that amount.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. 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 proceeding.
A. B. Chandler III
Amye L. Bensenhaver
Assistant Attorney General
Gene Weaver & Associates
33 West Pike Street
Covington KY 41011
Frank A. Wichmann
Wichmann & Schaffer
4132 Dixie Highway
P. O. Box 18063
Erlanger KY 41018-0063
Sgt. Robert L. Arens
Erlanger Police Department
P. O. Box 18818
Erlanger KY 41018
 KRS 61.874(4)(a) provides:Unless an enactment of the General Assembly prohibits the disclosure of public records to persons who intend to use them for commercial purposes, if copies of nonexempt public records are requested for commercial purposes, the public agency may establish a reasonable fee.
 KRS 61.874(4)(c) establishes the criteria for calculating reproduction fees for records requested for commercial purposes, and reads as follows:The fee provided for in subsection (a) of this section may be based on one or both of the following:1. Cost to the public agency of media, mechanical processing, and staff required to produce a copy of the public record or records;2. Cost to the public agency of the creation, purchase, or other acquisition of the public records.
 KRS 61.880(2)(c) provides that [t]he burden of proof in sustaining the action shall rest with the agency . . . . [Emphasis added.]