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Attorney General says Whitley Clerk violated Open Records Act

The Kentucky Attorney General's Office has ruled that the Whitley County Clerk's Office subverted the intent of the state's open records act by not allowing a man to use a personal handheld scanner or a camera without a flash to copy county records rather than pay the fifty cent per page charge to the clerk's office.

"Absent proof that the condition of the records applicant wished to reproduce using his own imaging equipment was poor, and/or that the equipment he proposed to use was likely to damage the records, Attorney General concludes that Whitley County Clerk subverted the intent of the open records act by denying applicant's request to make his own copies and advising him that her fifty cent per page copying charge was "used toward the maintenance, supplies, and salaries of her office," Assistant Attorney General Amye L. Bensenhaver wrote in the open records decision.

Whitley County Clerk Kay Schwartz said that she strongly disagrees with the decision, has no immediate plans to change her policy, and plans to appeal ruling to circuit court.

"I think what is fair for one is fair for all. Other people that come in here and makes copies of our records pay fifty cents per page. It is justifiable under the current statute to charge fifty cents per page, which is a reasonable cost," she said.

The Kentucky County Clerk's Association also plans to bring the issue before the Kentucky General Assembly during next year's upcoming legislative session, she added.

"When this law was written, handheld scanners hadn't even been made. It didn't cover scanners," Schwartz said. "My job is to maintain and take care of the records and that is what I feel like I am doing. I don't feel like it is fair for him to be able to come in here and make copies at no charge when nobody else is allowed to do that."

Appeal made

Larry Bailey asserted in his appeal that the clerk's policy "forces everyone to pay fees for the maintenance and supplies of her office even if those services are not needed," and that it imposes "undue financial burdens" on open records requesters.
Bailey also maintains that the photo copies from the clerk's office are often "low quality' black and white copy that is inferior to the color images produced by handheld scanners and non-flash cameras.

In her response to Bailey's appeal, Schwartz asserted that permitting persons other than her staff to make copies "with or without their own copy equipment invites the opportunity for damage, destruction, or alteration of records" and is inconsistent with her "duty to protect and preserve the records."

She defends her fifty cent per page copying fee as "reasonable," and therefore permissible under state law. She noted that "Mr. Bailey has not provided any evidence that the fee charged is unreasonable or excessive."

Bailey asserts that it seems that taking pages out of books and placing them on conventional flatbed copiers could cause more damage to records than handheld scanners or non-flash cameras since flatbed copiers emit heat and light but handheld scanners do not.  Non-flash cameras do not even make contact with records. Transporting records to and from flatbed copiers also causes wear to the records.

Bailey notes that the Department for Libraries and Archives permits the use of non-flash cameras and handheld scanners by persons inspecting records in its custody, thereby "freeing custodians to perform needed office tasks other than making unneeded copies."

Records decision

KRS 61.874(1) provides that "If the applicant desires copies of public records other than written records, the custodian of the records shall duplicate the records or permit the applicant to duplicate the records; however, the custodian shall ensure that such duplication will not damage or alter the original records," Bensenhaver wrote in the decision.

"KRS 61.874(1) does not expressly invest an open records applicant with the right to make his or her own copies using personal imaging equipment.  Nor, however, does it expressly prohibit this practice."

Public agencies can only assess a fee for reproduction of those records. That fee is limited to the agency's medium and mechanical processing costs and expressly excludes staff costs, the decision states.

"We find that because she failed to present proof that the records Mr. Bailey wished to reproduce were in poor condition and/or that the equipment he intended to use was more likely to damage or alter the records than the equipment her office intended to use, the Whitley County Clerk subverted the intent of the open records act by refusing his request to make his own copies using a personal handheld scanner or non-flash camera," Bensenhaver wrote.

"Any doubt arising from the language of the open records act must be resolved in favor of the public. In the absence of a statute prohibiting open records applicants from making copies using their own imaging equipment, and any evidence that the particular records he wishes to copy are more likely to be destroyed or altered if he copies them, we find that Mr. Bailey cannot be denied this right."

The decision also quotes a state statute that notes where the condition of the records or the proposed imaging equipment is such that the clerk must reproduce the records rather than the applicant, she is restricted to recovery of "the actual costs 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."

Why fee is charged

Schwartz said that charging a fee for copying records helps her office offset the cost of maintaining computers, copiers, and scanners as well as paper, toner, and ink, which runs over $30,000 per year.

"I don't take in nearly that much in fees for copies," Schwartz said. "Fifty cents is used to have that so people can have access to make copies of the records. Every fee that I collect just about goes right back out to all the taxing districts and the state. My operating expense is copy money. What are we supposed to run our office on?"

She said that if someone digitally copies the records or photographs them, then they could theoretically resell the records as part of a business. She especially disagrees with this if someone is getting the record for free.

Reasonable fee

Schwartz added that the Kentucky Secretary of State also charges fifty cents per page for copies.

"Our statute says reasonable costs. To allow someone to come in here with a digital camera or scanner and don't charge them anything is not reasonable costs," she added.

Schwartz said that might be open to amending her policy to charge a lesser fee if a system could be worked out for tracking how many pages were copied using a handheld scanner or digital camera, but that she is not open to allowing people to duplicate their own records for free.

"If they could run me off a report or give me an account number off of their camera or their hand scanner, I would charge them a reasonable price for that, but to allow them to come in here and take a copy for free, I totally disagree with," she added.

"I would be willing to work with them on something like that where they paid a lesser cost to use a digital camera or handheld scanner."


Captian Jim (October 19, 2011) Reply

Where in the hell does the taxes we pay go!copy is free for her friends and family ?Act like a real snob if you ask for a tax reciept,just who the hell are you working for.

time to explain (October 19, 2011) Reply

maybe it's time for an audit. see why the office can't make ends meet without selling public info. since kay seems to be appealing because of money problems a financial review should be justified. she is just one step away from charging a fee for just looking at the documents. maybe this will lead to bigger things other than copy fees.

Mary Rains (October 20, 2011) Reply

I have had copies of records made doing genealogy since early 1970's and the copy fee has always been fifty cents a page. Kaye didn't start this fee.

Rhonda (April 06, 2012) Reply

I have done genealogy research for many years. Before I got my own handheld scanner and high quailty digital camera, I paid the copying fee. Now that I have them and 90% of the time dont use clerk staff to find documents, I shouldnt have to pay for the copies I make with technology. I have helped people in other states find documents they've needed. I dont charge for digital copies. Please contact your local and state officials to keep the clerks wish for a law to legalize fees for this for happening.

jpartin (October 21, 2011) Reply

Did anyone point out to the County Clerk's office if people use their own equipment then the cost of maintaining all those "computers, copiers, and scanners as well as paper, toner, and ink" will go down?

you gotta be kidding (October 23, 2011) Reply

Kay really goofed on this one. Seriously how greedy can you be!!! 50 cents a copy is totally ridiculous anyway. It does not cost that much to make photocopies. She should be ashamed of herself.

Christine Siler (October 24, 2011) Reply

If our county clerk is relying on copy fees for operating expenses, there must be mismanagement somewhere. If these fees are used for "operating expenses," one has to wonder what those expenses are and why, if they are necessary expenses, they are not provided for in a budget. The breakfasts, lunches and meals Ms. Schwartz chooses to provide for employees are not necessary, but likely paid for with County money. Having said that, the issue is not the reasonableness of the copy fee or how the fee is used. The issue is whether or not a member of the public should be forced to pay such fee when they can make their own copies at no charge to themselves and without bothering Ms. Schwartz's staff or using her equipment and supplies. Ms. Schwartz has missed the point hat the Attorney General has understood very well.

M Rains (October 25, 2011) Reply

Kaye did NOT start the copy fee. Would it be fair to let some make their own copies when others don't have the equipment to do it ? No I don't think it would be. The money goes back to the machines, paper,ink, toner etc. If you want a copy pay for it and stop running the County Clerk down, she is a honest person.

larry (October 25, 2011) Reply

Is it ok to break the rules just because others did so in the past? PS, the uniform fee is 10 cents a copy. If you are caught speeding, arguing that everyone else speeds doesn’t nullify the law. Kay should obey the law until she “changes it”. The 10 cent copy fee isn’t new it has just been ignored by KY clerks. When Kay took office she should have reviewed the rules and laws pertaining to it immediately and had the legislature change them then. Anyone who is serious about holding elective office should at least be serious enough to become familiar with the rules and regulations that come with it and uphold any rules set forth by the AG. Under KY law an appeal that is lost by Kay can cost the county all attorney fees and $25 a day for every day the request was denied. This could actually amount to thousands of dollars by the time it is done. All for a few dollars in copy fees. Would it be fair to deny internet access to government sites just because everyone doesn’t have an internet connection? Would it be fair to make everyone buy picture postcards of historic government buildings because some people do not have cameras? Kay may be an honest person but she is letting her emotion get the better of herself. In this case Kay should just obey the rules until she can change them in a legal and orderly fashion.

Ann (October 25, 2011) Reply

Ms. Schwartz should realize that she is there to run the county office not to set policy. It shouldn't be up to her to decide whether individuals pay for copying or not. If someone comes in with there own equipment they should be able to copy any document that is allowed by law to be copied. Her clerks hover over you like the documents are there personal information. There is nothing that someone could do to those documents that a careless clerk couldn't do and guess who pays for that cost your right we do.

UNCLE B.S. (November 10, 2011) Reply

Kay is not the only clerk to try to do this. Eric Haynes in McCreary county has the same policy. The issue they are missing is that the law CLEARLY states that a charge is only applicable if the clerks "Equipment or staff" are required to make the copies. It clearly states that any person can make their own copies free of charge. These clerks get paid through a budget allocated by the fiscal court, and "fees" collected for filing documents and other office "fees". The heart of the matter is that if 100 copies are made per day in that office, it equals $50 dollars. At the end of the year, the money remaining in the account goes to the clerk. Why do you think its so important to her to charge "EVERYONE" she can possibly charge. Its not about paying employees. Its about paying Kay. They act as if these records belong to them. Their job is to care for, maintain, and store the records. The records are "public" records. Anyone can defend it all they want. Bottom line, is - She is wrong! She knows she is wrong! She wants to maintain control as much as possible because of the money. Flashless cameras are far less likely to damage a record then removing it from the book, running through the auto feeder on the copier, replacing it in the book. There are 3 steps that can damage a record with a copier, and Zero that can damage it with a flashless camera. It's not that complicated folks! By the way, Mrs. Rains, it is very fair that if I can buy a digital camera and take photos that I should be able to. The fact that you choose not to is not my problem. Should I have to walk to work because you can afford a car? Should I have to patch my jeans because you can't get a new pair too? It is called freedom. With veterans day on the horizon, we should all consider how many people died for our freedom. I am glad the AG put her in her place. I like Kay. But right is right, wrong is wrong!

copy cat (November 12, 2011) Reply

In this particular case using copy fees to pay staff was in conflict with state law KRS 61.874(3) so her argument only proved she was in violation of the law. If she hasn’t filed an appeal by Monday the 14th the AG decision will become law in Whitley County. All copies from the deed room will be 10 cents per copy, personal hand scanners and non-flash cameras will be legal and the law will be enforced by the circuit court.

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