TO BE PUBLISHED
96-ORD-3
January 16, 1996
In re: Glenna Jo Curry/Office of the Letcher County Clerk
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the action of the Letcher County Clerk relative to the assessment of copying fees for uncertified copies of public records housed in his office. On June 26, 1995, Patricia V. Peery, an attorney attached to the Office of Legal Services, Natural Resources and Environmental Protection Cabinet, requested uncertified copies of three deeds, identified by deed book, date, and page. Ms. Peery invoked the Open Records Act, specifically, KRS 61.874, erroneously identified as KRS 64.874. The Letcher County Clerk, Charlie Wright, furnished Ms. Peery with copies of the deeds at a cost of five dollars for each deed. In a November 30, 1994, letter explaining his position, Mr. Wright referred Ms. Peery to the Kentucky County Clerk's Association Uniform Fee List. He explained:
This list sets the fees charged for copies in our office. The fact that you do not have these copies certified is your choice. Also, who makes the copies is irrelevant. Your employees choose to make their own copies and that is alright with us. If they prefer us to make them, we will.
In closing, Mr. Wright noted that the clerk's fee structure applies to everyone equally.
On behalf of the Natural Resources and Environmental Protection Cabinet, Glenna Jo Curry, General Counsel, challenged Mr. Wright's position in a formal appeal. Ms. Curry acknowledges that the Uniform Fee List, codified at KRS 64.012, authorizes county clerks to charge specific fees for recording, filing, releasing, and certifying copies of public documents, but argues that it does not apply to uncertified copies of public documents. It is the Cabinet's position that KRS 61.874, the “reasonable fee” provision of the Open Records Act, is “a residual statute which applies where there is not an applicable specific fee statute.” We concur.
KRS 61.874(3), formerly codified as KRS 61.874(2), provides:
The public agency may prescribe a reasonable fee for making copies of nonexempt public records requested for use for noncommercial purposes [1]
which shall not exceed the actual cost of reproduction, including the costs of the media [2] and any mechanical processing [3] cost incurred by the public agency, but not including the cost of staff required.
Although the language of this provision has been slightly modified, the meaning and import are the same: The fee charged for copies should be based on the actual expense to the agency, not including the cost of staff. OAG 80-421; OAG 82-396; OAG 84-91; OAG 88-74; OAG 89-9; OAG 91-98; OAG 91-200. The fee is thus limited to the cost of maintaining copying equipment by purchase or rental, and the supplies involved. In Friend v. Rees, Ky. App., 696 S.W.2d 325 (1985), the Kentucky Court of Appeals held that ten cents per page is a reasonable reproduction charge under the Open Records Act.
This office has consistently taken the position that KRS 61.874 is a residual and general statute, and applies where there is no other applicable fee statute. OAG 80-209; OAG 84-91; OAG 87-80; OAG 89-9; OAG 92-79. If the county clerk furnishes copies of records specifically identified in the Uniform Fee List, which is found at KRS 64.012, the fees charged for copies may be based on that list. If the clerk furnishes copies of records not identified in the list, he may charge a reasonable fee that does not exceed the actual cost of reproduction, and excluding staff costs. As we observed in OAG 87-80, at page 2, “KRS 64.012, pertaining to the fees of county clerks, prevails over KRS 61.874[(3)] only if there is a conflict between the two statutes.”
On the facts presented, we see no conflict. KRS 64.012 authorizes the county clerk to charge five dollars for a “certified copy of deed.” (Emphasis added.) Ms. Peery did not request a certified copy of a deed. Instead, she requested an uncertified copy. KRS 64.012 does not specify the cost for uncertified copies of deeds. In the absence of an applicable fee statute, KRS 61.874(3) prevails, and the Letcher County Clerk is entitled to recover only his actual cost for reproducing the requested records.
We therefore find that the Letcher County Clerk subverted the intent of the Open Records Act, short of denial of inspection, by imposing excessive fees for copies of nonexempt public records in his custody. His office should recalculate the fees charged to conform to the statutory requirements of KRS 61.874(3), and, as we recently noted, “such charge should be imposed uniformly as against all requesters.” OAG 94-38, p. 3 citing Constitution of Kentucky §3.
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 B. MAJORS
ASSISTANT ATTORNEY GENERAL
aps/1286
Distributed to:
Charlie Wright
Letcher County Clerk
P. O. Box 58
Whitesburg, Kentucky 41858
Glenna Jo Curry
General Counsel
Natural Resources and Environmental
Protection Cabinet
Fifth Floor, Capital Plaza Tower
Frankfort, Kentucky 40601
[1] Guidelines for establishing fees for nonexempt public records requested for commerical purposes are set forth at KRS 61.874(4)(a), (b), and (c).
[2] Defined at KRS 61.870(7) as: `Media' means the physical material in or on which records may be stored or represented, and which may include, but is not limited to paper, microform, disks, diskettes, optical disks, magnetic tapes, and cards[.]
[3] Defined at KRS 61.870(8) as:`Mechanical processing' means any operation or other procedure which is transacted on a machine, and which may include, but is not limited to a copier, computer, recorder or tape processor, or other automated device.