Monday, June 29, 2009

County assessor's fee for electronic copy violates Open Records Act

Muskogee County can no longer charge more than $50 for an electronic copy of its database of all real property assessments, a district judge has ordered in a lawsuit over the county assessor’s records fees.

The county assessor’s practice of charging 5 cents for the first 25,000 records and 2 cents thereafter violated the Oklahoma Open Records Act because the charge was “not limited to recovering only the reasonable, direct costs of record copying and record search,” said Judge Norman D. Thygesen in a judgment and injunction issued June 18, 2009.

County officials had defended the practice as being in line with the fees approved by the Oklahoma State Assessors Association during the late 1990s.

But Thygesen’s ruling marks the second time an Oklahoma district judge has said those charges violate the state Open Records Act and barred a county from charging more than $50 for an electronic copy of an assessments database.

Both lawsuits are among a string of cases filed by Roger W. Hurlbert, an FOI Oklahoma Inc. member, over the fees charged by Oklahoma counties for electronic copies of their assessment databases.

“This is a long-standing issue of fee extortion and abuse by many Oklahoma assessors,” Hurlbert told the FOI Oklahoma Inc. blog on Monday.

Hurlbert, doing business as Sage Information Services in California, filed suit against Muskogee, Osage and Wagoner counties in 2007.

Hurlbert said negotiations with Wagoner County officials continue. A similar lawsuit he filed against Grady County in 2008 is pending.

Muskogee County commissioners agreed in September 2008 to settle with Hurlbert.

Hurlbert had offered to pay $50 for each county’s assessment database to be burned onto a CD. But Muskogee County Assessor Dan Ashwood said the cost for the 46,549 records would be nearly $1,700, the Muskogee Phoenix reported.

Under the state Open Records Act, public bodies “may charge a fee only for recovery of the reasonable, direct costs of record copying, or mechanical reproduction.” (OKLA. STAT. tit. 51, § 24A.5(3))

For microfiche or computer tapes, the “reasonable, direct costs” for copying should be “based upon the cost of materials [and] labor needed for providing the computer program and service to produce the requested data,” the Oklahoma Supreme Court said in 1992. (Merrill v. Oklahoma Tax Comm’n, 1992 OK 53, 831 P.2d 634, 642-43)

Hurlbert’s lawsuit alleged that Ashwood’s office could provide the database in about an hour from any computer in the office, the Muskogee Phoenix reported in 2008.

Hurlbert’s original lawsuits were drafted by Douglas A. Wilson of the Tulsa law firm of Riggs, Abney, Neal, Turpen, Orbison & Lewis. Wilson, who now practices in Stillwater and was elected to the FOI Oklahoma Inc. board of directors this year, is representing Hurlbert in his Grady County lawsuit.

In July 2008, a district judge issued a judgment and injunction favoring Hurlbert. The judge prohibited Osage County’s assessor from charging more than $50 for an electronic copy of the assessments database. The judge likewise found that charging 5 cents for the first 25,000 records and 2 cents thereafter to be an Open Records violation because it was “not limited to recovering only the reasonable, direct costs of record copying and record search.”

In both Osage and Muskogee counties, the judges have said Hurlbert is entitled to his reasonable attorneys’ fees and costs in the cases.

Joey Senat, Ph.D.
Associate Professor
OSU School of Journalism

1 comment:

  1. Nice win. You guys need someone in the AG's office who can smack down government bodies attempting to charge too much.


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