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."
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."
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.
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."