NOT TO BE PUBLISHED

96-ORD-271

December 18, 1996

In re: E. L. Gold/State Board of Elections

Open Records Decision

This matter comes to the Attorney General on appeal from the State Board of Elections's response to the open records request of Mr. E. L. Gold, Staff Writer, Kentucky New Era, for the voter registration rolls for Caldwell, Christian, Todd, and Trigg counties as a computer file on 3 ½ inch high-density diskettes. Mr. Gold asked the Board to waive any fee for the records because he intended to use the records for a noncommercial purpose, i. e., to use the data as a basis for news stories concerning trends and patterns in voter registration.

Mr. Gold states the Board, in response, indicated that the usual commercial price of $10 per thousand records would be reduced to $4 per thousand for 50,732 records for a total fee of $202.93 plus postage. At that time, Mr. Gold requested an itemized accounting of the Board's costs to produce the records so that he could verify whether the fee was reasonable as required by KRS 61.874(3).

Mr. George Russell, Executive Director of the Board, responded stating:

Precinct lists containing the names of registered voters in the state by precinct are excluded from the application of the Open Records Act because they are governed under KRS 117.025(3)(h). Accordingly, the price that the State Board of Elections may charge for the precinct lists is controlled by KRS 117.025(3)(h), which provides that the State Board of Elections may charge a “reasonable price” for precinct lists.

In his letter of appeal, Mr. Gold asks this office to determine whether the Board acted within the scope of the Open Records Act by failing to provide documentation of the actual costs to reproduce the requested records and to determine whether the costs charged for reproduction of the requested records are reasonable.

On November 22, 1996, we sent a “Notification of Receipt of Open Records Appeal” to the State Board of Elections and enclosed a copy of Mr. Gold's letter of appeal. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Ms. Maryellen Allen, Assistant Attorney General and counsel for the Board, provided this office and Mr. Gold with a response to the issues raised in this appeal.

In her response, Ms. Allen states the Board takes the position that because KRS 117.025(3)(h) specifically authorizes the Board to charge a “reasonable price”for precinct lists, it takes priority over KRS 61.874(3), a statute of general application. Thus, the Board argues the Attorney General does not have jurisdiction pursuant to KRS 61.880(4) to determine whether the fee charged for its precinct lists is excessive under the Open Records Act.

In the alternative, the Board provides a breakdown of its costs of reproducing the precinct lists requested by Mr. Gold and argues that the price charged is reasonable and in conformity with the requirements of KRS 117.025(3)(h).

For the reasons which follow, we conclude that the Attorney General has jurisdiction over this appeal, the response of the Board was consistent with the Open Records Act, and the price charged for reproduction of the requested records was reasonable under authority of KRS 117.025(3)(h).

In its response to Mr. Gold's letter of appeal, the State Board of Elections argues that the price it charges for the requested records is governed by KRS 117.025(3)(h) and, thus, the Attorney General does not have jurisdiction, in an open records appeal, to determine whether the fee charged by the Board is excessive under the Open Records Act. We disagree.

KRS 61.880(4) provides:

If a person feels the intent of KRS 61.870 to 61.884 is being subverted by an agency short of denial of inspection, including but not limited to the imposition of excessive fees or the misdirection of the applicant, the person may complain in writing to the Attorney General, and the complaint shall be subject to the same adjudicatory process as if the record had been denied. [Emphasis added.]

The language of the open records statutes does not specifically require a public agency to justify its costs to a person requesting copies of public records. However, under KRS 61.880(4), if a person has made an open records request for copies of certain public records and he believes that the public agency's costs for the reproduction of the records are unjustified or that the costs charged are excessive, he may appeal to this office for a review as to whether the costs are reasonable.

Accordingly, we conclude that, pursuant to KRS 61.880(4), the Attorney General has jurisdiction to review the instant appeal. We further conclude that the fact that another statute relating to fees charged for copies of public records may control does not divest this office of that jurisdiction.

Next, we are asked to determine whether the Board has furnished the requested precinct lists to Mr. Gold at a reasonable price.

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. 96-ORD-3; OAG 80-209; OAG 84-91; OAG 87-80; OAG 89-9; OAG 92-79. Thus, in an appeal, under KRS 61.880(4), where the issue is whether the costs for records are excessive or not, we first look to see if there is a specific fee statute that would apply to the records for which copies are requested.

In the instant appeal, there is a specific statute relating to the fees which the State Board of Elections may charge for precinct records, such as those requested by Mr. Gold. KRS 117.025(3)(h) provides that the Board shall:

Furnish at a reasonable price any and all precinct lists to duly qualified candidates, political party committees or officials thereof, or any committee that advocates or opposes an amendment or public question. The State Board of Elections may also furnish the precinct lists to other persons at the Board's discretion, at a reasonable price. The Board shall not furnish precinct lists to persons who intend to use the lists for commercial purposes. [Emphasis added.]

Thus, we conclude that the specific statute, KRS 117.025(3)(h), governs over the general statute, KRS 61.874(3), and is applicable to the issue of reasonable costs raised in this appeal. See OAG 83-42.

Next, we address the price charged for producing the requested records. In its response to the letter of appeal, the Board provided a breakdown of its costs of reproducing the precinct lists requested by Mr. Gold. The Board explains the costs as follows:

There are four steps required in processing a request for the precinct lists from the State Board of Elections' mainframe to a diskette format.

1. Run Query for four counties on mainframe;

2. Convert data from mainframe language to PC language;

3. Transfer converted file from mainframe to PC; and

4. Copy file to diskettes on PC.

A Query resulting in 50,000 records takes about one hour to process. The State Board of Elections' cost of processing this request is:

$350.00 - one hour processing time

25.00 - one hour staff time

6.00 - six diskettes

$381.00 - Total Cost

The processing time rate is based upon the processing fee charged to the State Board of Elections by the Department of Information Services for weekly updates of the master voter file. The Department of Information Services' rate is $975.00 per CPU hour plus an I/O charge. For example, the State Board of Elections was charged $216.34 for its weekly copy of the master voter file which was composed of a processing charge of $154.13 for 00:09:29 CPU time and an I/O charge of $62.21. The next week the State Board of Elections was charged $230.43 by DIS which consisted of $168.08 for 00:10:20 CPU time and an I/O charge of $62.35. The State Board estimates that DIS spent 30-45 minutes in copying the State Board's master file to tapes. The State Board of Elections' equipment is much slower and older than that used by DIS. It takes staff from the State Board of Elections 3-4 hours to load these tapes onto the State Board's machine. Accordingly, it is not reasonable to use DIS's rates without further adjustments.

Using the lower charge to the State Board of Elections by DIS for the tapes at $216.34 and the higher DIS time estimate of 45 minutes in completing the job, prorating the value of the tapes to 1 hour processing time, yields $288.00 per hour ($216.34/45 minutes = x/60 minutes, so x=280.00). Using the higher charge to the State Board of Elections by DIS for the tapes, at $230.43 and the lower time estimate of 30 minutes results in an hourly processing fee of $460.00. This yields a range of $288.00 to $460.00 per processing hour. The State Board of Elections believes that a rate of $350.00 per processing hour is reasonable.

In concluding its response, the Board acknowledges that this charge is higher than the $202.93 plus postage originally quoted to Mr. Gold but argues that it considers the $381.00 price to reflect the cost to the Board for reproducing the requested records, including mechanical processing and staff time.

At issue is whether this price for the precinct lists requested by Mr. Gold represents a reasonable price in compliance with KRS 117.025(3)(h).

In its response to Mr. Gold's original request, the Board indicated the request involved 50,732 records. In estimating the cost of reproducing these records, the Board's breakdown shows that the greatest cost is the processing fee charged to the Board by the Department of Information Services. Based on an estimate that a query involving 50,000 records would take about one hour to process, the Board, through the use of previous charges for reproducing similar records, calculates the above set out estimate of $381.00.

We have no reason to doubt the Board's calculations and conclude that they appear to demonstrate that the charge represents a “reasonable price” for reproducing the requested records, particularly since the major portion of the cost is the fee which the Board is charged by the Department of Information Services for processing the Board's files.

The final issue before us is the Board's charge for staff time. KRS 117.025(3)(h), the controlling statute in this appeal, provides that the Board may furnish the precinct lists at a reasonable price. There is no specific language in the statute directing that staff costs may not be included as part of the price charged. (Compare KRS 61.874(3) which specifically states that the cost of staff is not to be included in calculation of the fee to be charged.) Accordingly, we conclude that the Board, under KRS 117.025(3)(h), may charge for staff time in calculating the reasonable price to be charged for providing copies of its records. A charge of $25.00 for staff time does not appear either excessive or unreasonable under the facts of this case.

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

James M. Ringo

Assistant Attorney General

1372

Distributed to:

E. L. Gold

Staff Writer

Kentucky New Era

P. O. Box 729

Hopkinsville KY 42241-0729

George Russell

Executive Director

State Board of Elections

140 Walnut Street

Frankfort KY 40601

Maryellen Allen

Assistant Attorney General

Office of the Attorney General

The Capitol

Frankfort KY 40601