NOT TO BE PUBLISHED







97-ORD-92

June 12, 1997

In re: Frank Boyett/Transportation Cabinet

Open Records Decision

The question presented in this appeal is whether the Transportation Cabinet assessed Frank Boyett, staff writer for The Gleaner, a reasonable fee for reproducing records stored in its Automated Motor Vehicle Registration System database. For the reasons which follow, we find that although the fee which it originally attempted to assess Mr. Boyett was excessive, the Cabinet subsequently modified the fee to reflect the actual cost of reproduction excluding the cost of staff required.

On March 21, 1997, Mr. Boyett asked that the Cabinet provide "in ASCII format on 3 -inch floppy disks, that portion of the list specified in KRS 186.025 that pertains to Henderson, Union and Webster counties for 1997." He agreed to pay "a reasonable fee for reproduction . . . [which] does not exceed actual reproduction costs." In a letter dated April 2, 1997, Commissioner Ed Roberts, records custodian for the Transportation Cabinet, responded to Mr. Boyett's request. Commissioner Roberts indicated that the portion of the database which Mr. Boyett requested contains 65,415 registered motor vehicles, and that "the total cost to create and process a program for the specified counties would be $1,483.30." He explained that the database contains personal information, including dates of birth, home addresses, and social security numbers, which must be redacted pursuant to KRS 61.878(1)(a), and a special program created for this purpose.

In a subsequent letter, Commissioner Roberts stated that under the recently finalized policy for bulk distribution of information in the AVIS database, Mr. Boyett is required to file a letter of intent with the Cabinet, identifying the intended use of the information, and to sign an agreement "to control and protect the information provided and also hold the Cabinet harmless in the event the information is misused." He reiterated that the fee for reproducing that portion of the database which Mr. Boyett requested would be $1,483.30. This fee, he indicated, is based on a $175.00 programming fee and a two cent per name or record charge. Convinced that this fee is clearly excessive, Mr. Boyett initiated his appeal on May 12.

On May 21, the Transportation Cabinet modified its position. In a letter to this office, a copy of which was also sent to Mr. Boyett, Richard H. Deters, general counsel, advised:

Mr. Boyett has asked for records of registered motor vehicles in three counties. These records are part of a complete statewide database and it requires a program to extract. The actual cost is recoverable under KRS 61.874(3) which states that the actual cost, including media and mechanical processing (specifically includes computers), is recoverable. The cost for computer usage and time is $15.00 and disks cost $.50 each, of which this request will use four, for a total of $17.00. The four hours of staff time at $40.00/hr will not be charged.

Mr. Deters indicated that upon prepayment of this $17.00 fee, the Cabinet will furnish Mr. Boyett with the records he seeks. We uphold the Cabinet's actions, and find that the modified fee is based on its actual cost, and is therefore reasonable within the meaning of KRS 61.874(3).

KRS 61.874(3) provides:

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.

In 95-ORD-82, the Attorney General analyzed this provision as it relates to an agency's KRS 61.878(4) duty to separate excepted and make nonexcepted material available for examination when the excepted and nonexcepted materials are commingled. At page 8 of that decision, we held that separating excepted material is not equivalent to the production of a record in a specially tailored format, or nonstandardized format, for which the agency can recover staff costs. Instead, we concluded that a public agency is required to discharge this duty under KRS 61.878(4), and that it must bear the cost of separating, or redacting, the excepted material. We believe that 95-ORD-82, a copy of which is enclosed, is controlling and incorporate it in full.

The Transportation Cabinet's initial response appears to have been based on the assumption that redaction of an existing record is equivalent to creation of a specially formated record for which it could recover staff, or programming, time, as well as its actual costs. In light of this office's decision in 95-ORD-82, we find that the Cabinet was in error. Subsequently, however, the Cabinet re-evaluted its position and properly concluded that it could only recover its actual costs, consisting of media and mechanical processing costs, meaning the cost of the disks on which the information is reproduced and the computer time for reproducing the information. We find that this fee was reasonable.

KRS 61.874(1) states that when copies of records are requested, the custodian "may require a written request and advanced payment of the prescribed fee." See also, KRS 61.872(3)(b) which provides, "If the person requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing." Mr. Deters indicated that the records would be sent to Mr. Boyett upon receipt of the $17 copying charge. We believe that this response was consistent with the provisions of the Open Records Act.

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

Attorney General


Amye L. Bensenhaver

Assistant Attorney General

#537

Distributed to:

Frank Boyett

Staff Writer

The Gleaner

Box 4

455 Klutey Park Plaza

Henderson KY 42420

Ed Roberts

Commissioner

Transportation Cabinet

State Office Building

Frankfort KY 40601

Richard Deters

General Counsel

Transportation Cabinet

State Office Building

Frankfort KY 40601