TO BE PUBLISHED 

94-ORD-77

June 9, 1994

IN RE: John Browning/Covington Police Department

OPEN RECORDS DECISION

This appeal originated in a request for public records submitted by Mr. John Browning to the Covington Police Department on May 2, 1994. Mr. Browning requested access to the police report stemming from an assault which occurred on April 24, 1994. Mr. Browning was the victim of that assault. On behalf of the Covington Police Department, Sergeant Steve Rusch, custodian of records, advised Mr. Browning that the Department would furnish him with a copy of the report at a cost of $5.00 per page. Sgt. Rusch directed Mr. Browning's attention to a sign on the wall which confirmed that the Department charges $5.00 for copies. Mr. Browning objects to this copying charge, which he believes to be excessive.

This is by no means an issue of first impression for this Office. Nevertheless, we deem this decision to be worthy of publication. In spite of repeated admonitions that a public agency can only assess a reasonable copying charge for public records not to exceed its actual costs, excluding staff time required, a number of public agencies continue to impose clearly excessive fees. Unless these agencies can document that their actual costs are greater than ten cents per page, both the courts and this office have demonstrated an unwillingness 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.

KRS 61.874(2) provides:

This provision has been interpreted on numerous occasions to mean that the fee charged for copies should be based on the agency's actual expense, not including staff costs. The fee is thus limited to the proportionate cost of maintaining copying equipment by purchase or rental, and the supplies involved. In Friend v. Rees, supra, the Kentucky Court of Appeals held that ten cents per page was a reasonable copying charge under the Open Records Act.

We acknowledge that KRS 61.874(2) is a general statute and only applies where there are no other applicable fee statutes. Cf. OAG 80-209 (holding that where county clerk furnishes copies of the clerk's records, KRS 64.012 will apply if any of the language on that schedule is applicable to the particular record). Sgt. Rusch indicates that he is not aware of a particular fee statute relative to police records which overrides KRS 61.874(2), and we have not located one. Since a police report does not appear to fall within the parameter of a separate fee statute, KRS 61.874(2) governs, and any fee charged in excess of the Department's actual cost is a violation of the Open Records Act. Simply stated, a sign on the wall stating that requesters will be charged $5.00 for copies, absent independent statutory authority, does not justify the Department's position. Nor does Sgt. Rusch's assertion that this is the copying fee typically imposed by police departments in Northern Kentucky.

In OAG 84-300, this Office expressly held that $5.00 per page for copies was an unreasonable fee. Indeed, we have held that a twenty-five cent copying charge is excessive when that fee is not based upon the agency's actual cost, exclusive of personnel, for making copies. OAG 90-50. We continue to ascribe to this view. The Covington Police Department must therefore recalculate the fee it currently imposes for copies to conform to the requirements of KRS 61.874(2). The Department should also remove the sign which appears on its walls, and replace it with a revised notice which conforms to KRS 61.874(2) and KRS 61.876.

The 1994 General Assembly undertook a broad revision of the Kentucky Open Records Act. Among the changes wrought by the General Assembly was an overhaul of the current fee structure for copies of public records. These revisions will take effect on July 15, 1994. Until that time, the principles we have enunciated prevail.

The Covington Police Department 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.

CHRIS GORMAN

ATTORNEY GENERAL

AMYE B. MAJORS

ASSISTANT ATTORNEY GENERAL

jgh/597

Distributed to:

Sgt. Steve Rusch

Custodian of Records

Covington Police Department

Covington, KY 41011

Mr. John Browning

4546 Clifton Avenue

Covington, KY 41011

Hon. Joseph Condit

City Attorney

City Building, 638 Madison

Covington, KY 41011