Grady and Wagoner counties' fees for digital copies of assessments databases violate Open Records Act

Grady County's fee for an electronic copy of its database of all real property assessments violates the state Open Records Act, a district judge ruled Monday.

The county assessor’s practice of charging 5 cents for the first 25,000 records and 2 cents thereafter was “not limited to recovering only the reasonable, direct costs of record copying and any necessary record search,” said Judge Richard G. Van Dyck in a judgment and injunction issued Nov. 2. (Hurlbert v. Firestone, CJ-08-00790 (Grady Co.))

Another district judge ruled against Wagoner County's assessor for the same reason in October. (Hurlbert v. Thompson, CJ-07-00912 (Wagoner Co.))

Four times since July 2008, a district judge in Oklahoma has said such charges violate the state Open Records Act and limited the amount a county can charge for an electronic copy of a digital assessments database.

All four lawsuits were filed by Roger W. Hurlbert, an FOI Oklahoma Inc. member. Doing business as Sage Information Services in California, Hurlbert filed suit against Muskogee, Osage and Wagoner counties in 2007 and Grady County in 2008.

He won against Muskogee County in June and against Osage County in 2008.

On Monday, Van Dyck said Grady County may no longer charge more than $26 for a digital copy of its database of all real property assessments because the direct, reasonable cost of searching for and burning the records onto a CD or DVD is no more than that amount.

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)

Judges barred Muskogee, Osage and Wagoner counties from charging more than $50 for an electronic copy of their assessments databases.

In all four cases, judges said each county's practice of charging 5 cents for the first 25,000 records and 2 cents thereafter violated the Open Records Act because that fee exceeded the reasonable, direct costs of searching for and burning the records onto a CD or other digital medium.

The judges in Grady, Muskogee and Osage counties said their rulings applied to anyone's request for the assessment databases. However, Wagoner County District Judge Darrell Shepherd limited his ruling to only Hurlbert's request.

Shepherd's ruling does not explain his reasoning for that peculiar difference. Would someone else requesting the same records be charged more or also have to go to court to challenge the fee? If the fee violates the law, it violates the law -- regardless of who requests the records.

In all four rulings, the judges have said Hurlbert is entitled to his reasonable attorney fees and costs.

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 in January, represented Hurlbert in his Grady County lawsuit.


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