NOT TO BE PUBLISHED
97-ORD-92
June 12, 1997
In re: Frank Boyett/Transportation Cabinet
Open Records Decision
The question presented in this appeal is whether the
Transportation Cabinet assessed Frank Boyett, staff writer for The
Gleaner, a reasonable fee for reproducing records stored in
its Automated Motor Vehicle Registration System database. For the
reasons which follow, we find that although the fee which it
originally attempted to assess Mr. Boyett was excessive, the
Cabinet subsequently modified the fee to reflect the actual cost
of reproduction excluding the cost of staff required.
On March 21, 1997, Mr. Boyett asked that the Cabinet provide
"in ASCII format on 3 ½-inch floppy disks, that portion of
the list specified in KRS 186.025 that pertains to Henderson,
Union and Webster counties for 1997." He agreed to pay
"a reasonable fee for reproduction . . . [which] does not
exceed actual reproduction costs." In a letter dated April
2, 1997, Commissioner Ed Roberts, records custodian for the
Transportation Cabinet, responded to Mr. Boyett's request.
Commissioner Roberts indicated that the portion of the database
which Mr. Boyett requested contains 65,415 registered motor
vehicles, and that "the total cost to create and process a
program for the specified counties would be $1,483.30." He
explained that the database contains personal information,
including dates of birth, home addresses, and social security
numbers, which must be redacted pursuant to KRS 61.878(1)(a), and
a special program created for this purpose.
In a subsequent letter, Commissioner Roberts stated that under
the recently finalized policy for bulk distribution of
information in the AVIS database, Mr. Boyett is required to file
a letter of intent with the Cabinet, identifying the intended use
of the information, and to sign an agreement "to control and
protect the information provided and also hold the Cabinet
harmless in the event the information is misused." He
reiterated that the fee for reproducing that portion of the
database which Mr. Boyett requested would be $1,483.30. This fee,
he indicated, is based on a $175.00 programming fee and a two
cent per name or record charge. Convinced that this fee is
clearly excessive, Mr. Boyett initiated his appeal on May 12.
On May 21, the Transportation Cabinet modified its position.
In a letter to this office, a copy of which was also sent to Mr.
Boyett, Richard H. Deters, general counsel, advised:
Mr. Boyett has asked for records of registered motor vehicles
in three counties. These records are part of a complete statewide
database and it requires a program to extract. The actual cost is
recoverable under KRS 61.874(3) which states that the actual
cost, including media and mechanical processing (specifically
includes computers), is recoverable. The cost for computer usage
and time is $15.00 and disks cost $.50 each, of which this
request will use four, for a total of $17.00. The four hours of
staff time at $40.00/hr will not be charged.
Mr. Deters indicated that upon prepayment of this $17.00 fee,
the Cabinet will furnish Mr. Boyett with the records he seeks. We
uphold the Cabinet's actions, and find that the modified fee is
based on its actual cost, and is therefore reasonable within the
meaning of KRS 61.874(3).
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 95-ORD-82, the Attorney General
analyzed this provision as it relates to an agency's KRS
61.878(4) duty to separate excepted and make nonexcepted material
available for examination when the excepted and nonexcepted
materials are commingled. At page 8 of that decision, we held
that separating excepted material is not equivalent to the
production of a record in a specially tailored format, or
nonstandardized format, for which the agency can recover staff
costs. Instead, we concluded that a public agency is required to
discharge this duty under KRS 61.878(4), and that it must bear
the cost of separating, or redacting, the excepted material. We
believe that 95-ORD-82, a copy of which is enclosed, is
controlling and incorporate it in full.
The Transportation Cabinet's initial
response appears to have been based on the assumption that
redaction of an existing record is equivalent to creation of a
specially formated record for which it could recover staff, or
programming, time, as well as its actual costs. In light of this
office's decision in 95-ORD-82, we find that the Cabinet was in
error. Subsequently, however, the Cabinet re-evaluted its
position and properly concluded that it could only recover its
actual costs, consisting of media and mechanical processing
costs, meaning the cost of the disks on which the information is
reproduced and the computer time for reproducing the information.
We find that this fee was reasonable.
KRS 61.874(1) states that when copies of
records are requested, the custodian "may require a written
request and advanced payment of the prescribed fee." See
also, KRS 61.872(3)(b) which provides, "If the person
requesting the public records requests that copies of the records
be mailed, the official custodian shall mail the copies upon
receipt of all fees and the cost of mailing." Mr. Deters
indicated that the records would be sent to Mr. Boyett upon
receipt of the $17 copying charge. We believe that this response
was consistent with the provisions of the Open Records Act.
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 L. Bensenhaver
Assistant Attorney General
#537
Distributed to:
Frank Boyett
Staff Writer
The Gleaner
Box 4
455 Klutey Park Plaza
Henderson KY 42420
Ed Roberts
Commissioner
Transportation Cabinet
State Office Building
Frankfort KY 40601
Richard Deters
General Counsel
Transportation Cabinet
State Office Building
Frankfort KY 40601