NOT TO BE PUBLISHED
95-ORD-110
July 25, 1995
In re: Bessie Elliott/North Marshall Water District
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the actions of the North Marshall Water District relative to a series of public records requests submitted by Miss Bessie Elliott, and an increase in the fees charged for copies of those records. In her letter of appeal, Miss Elliott explains that the district's board of commissioners recently voted to increase the fees for copies of public records from ten cents per page to twenty-five cents per page. She attaches a receipt dated May 12, 1995, evidencing this increase. Although the board of commissioners apparently never issued a formal written explanation for its policy change, Miss Elliott states that the board indicated in its May 11 meeting that the increase was occasioned by an increase in expenses. Additionally, the board noted that the county clerk charges twenty-five cents per page as do most banks. [1]
We are asked to determine if the North Marshall Water District violated the Open Records Act by imposing excessive fees for copies of public records. For the reasons set forth below, and upon the authorities cited, we conclude that in the absence of any evidence substantiating an increase in expenses attendant to reproducing public records, the district's decision to increase the fees charged for copies violated the Act.
KRS 61.874(3) provides, in part:
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.
Although the copying fee provisions of the Open Records Act were substantially amended in the 1994 General Assembly, it is our view that those amendments do not alter the premise that the agency may only assess a reasonable copying charge for public records not to exceed its actual costs, excluding staff time required. This office has long recognized that unless an agency can document that its actual costs are greater than ten cents per page, both the courts and this office are unwilling 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; 94-ORD-77. We believe that this rule still applies when a request is made for hard copies of public records, and the requester's purpose is a noncommercial one. [2]
In OAG 90-50, this office expressly held that a twenty-five cent copying charge was excessive when that fee was not based upon the agency's actual cost, exclusive of personnel costs. 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. Unless the North Marshall Water District can demonstrate that its actual cost for reproducing records is greater than ten cents per page, based on the cost of media and mechanical processing as defined in KRS 61.870(7) and (8), it must recalculate its copying fee to conform to the requirements of KRS 61.874.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.
CHRIS GORMAN
ATTORNEY GENERAL
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
res/642
Distributed to:
Chairman, Board of Commissioners
North Marshall Water District
Route 7, Box 184
Benton, KY 42025
Bessie Elliott
3981 U.S. Highway 68W
Benton, KY 42025
[1]The North Marshall Water District was notified that an appeal from its actions had been filed with the Attorney General, and was provided with a copy of that appeal, on May 24, 1995. Since the district has made no effort to challenge any of the allegations made by Miss Elliott, we must assume that she has fairly and accurately presented the facts.
[2]"Commercial purpose" is defined at KRS 61.870(4)(a) as "the direct or indirect use of any part of a public record or records, in any form, for sale, resale, solicitation, rent, or lease of a service, or any use by which the user expects a profit either through commission, salary, or fee."