NOT TO BE PUBLISHED

95-ORD-102

July 14, 1995

In re: Barney Cook/Leitchfield Police Department

OPEN RECORDS DECISION

This matter comes to the Attorney General from the Leitchfield Police Department's denial of Mr. Barney Cook's request, dated March 14, 1995, to inspect the following documents:

Uniform citation, and statements of police officers, and evidence of case 92-CR-070; any and all statements made by witnesses, all medical tests made pertaining to case. Any and all evidence that this department of L.P.D. has on file.

Attached to the request was a note in which Mr. Cook stated that what he needed was a statement of how much it would cost him to get a copy of all the requested information. He stated that as soon as he received the information about the cost, he would send a check for it.

By letter dated April 10, 1995, Chief Elmer R. Langdon, responded on behalf of the Leitchfield Police Department (hereafter "Department"). Chief Langdon stated that normally the charge was $2.00 per copy and there were approximately 15 pages in the file.

On April 13, 1995, Mr. Cook appealed to this office stating the Leitchfield Police Department had violated the Open Records Act by not responding to his request within three days and by charging an excessive fee for copies of the records.

Subsequent to receipt of Mr. Cook's letter of appeal and pursuant to KRS 61.880(2) and 40 KAR 1:030, the undersigned contacted the Leitchfield Police Department to obtain additional documentation regarding this appeal. Chief Langdon forwarded to this office a copy of his April 21, 1995 letter to Mr. Cook, in which he stated, "In regards to your request for case #92-CR-070 this is a Circuit Court Case Number. If you can be more specific of the case you are referring to, I will try to assist you in this matter." Chief Langdon indicated to the undersigned that he had heard nothing further from Mr. Cook but was willing to make the records available if Mr. Cook could be more precise as to the specific records he sought.

For the reasons which follow, we conclude that the Department's response was procedurally deficient because it failed to respond to Mr. Cook's request within three days after its receipt as required by KRS 61.880(1).

We also find that the Department's charging Mr. Cook and the public a fee of $2.00 per copy is excessive and not consistent with the Open Records Act.

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 Friend v. Rees, Ky.App., 696 S.W.2d 325 (1985), the court found ten cents a copy to be a reasonable fee for reproducing standard hard copy records. The actual cost of copies not including staff costs is all that may be charged unless a specific charge for a given type of record is provided for by statute. OAG 94-38.

Assuming Mr. Cook identifies the exact records he wants, the Department is directed to provide him with copies of the records requested at a reasonable fee consistent with the provisions of KRS 61.874.

Finally, it is the decision of this office that the Department did not violate the Open Records Act by denying Mr. Cook access to the requested records or subvert the Act's intent by requesting clarification as to the precise documents sought to be inspected. Chief Langdon has indicated his willingness to assist Mr. Cook in getting the records he requests, once it can be determined exactly what records are being sought.

Accordingly, Mr. Cook, if he has not already done so, should renew his request and set forth as precisely as possible the records he wishes to review.

Mr. Cook or the Leitchfield Police Department may challenge this decision 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 proceedings.

CHRIS GORMAN

ATTORNEY GENERAL

JAMES M. RINGO

ASSISTANT ATTORNEY GENERAL

res/498

Distributed to:

Elmer Langdon, Chief

Leitchfield Police Department

117 South Main Street

Leitchfield, KY 42754

Barney Cook #114073

D-1-9

Western Kentucky Correctional Complex

P.O. Box 5000

Eddyville, KY 42038-5000