Sunday, July 17, 2011

Glenpool charging more than $1,400 for set of city official's emails

A Glenpool real estate developer would have to pay more than $1,400 to receive copies of the city manager's e-mails for a seven-week period, according to documents provided to the FOI Oklahoma Blog.

Keith Jones said he believes the emails "will prove" that City Manager Ed Tinker and two other Glenpool officials "should not be employed by the City of Glenpool."

On Monday, the City Council is scheduled to discuss hiring an outside attorney "regarding indefinite but possible future actions of the Council with respect to the employment of the City Manager."

Jones requested emails sent from Assistant City Manager David Tillotson and City Planner Rick Malone to Tinker from April 1 to May 20 and all of Tinker's emails during that time.

Jones has been told to pay the $1,200 that Aktec Computer Solutions charged the city for 14.5 hours retrieving the emails and $200 for the Tulsa company to print 1,051 pages, according to the company's invoice to the city.

Jones, who writes a blog commenting on Glenpool issues, will be charged a $15-per-hour search fee for City Attorney Lowell L. Peterson "to review the resulting emails to determine whether any are subject to confidential privilege," according to a June 17 email from Peterson to Jones.

However, the state Open Records Act prohibits search fees being charged to "taxpayers seeking to determine whether those entrusted with the affairs of the government are honestly, faithfully, and competently performing their duties as public servants.” (OKLA. STAT. tit. 51, § 24A.5(3))

Jones said he isn't sure what final amount he will be asked to pay for the emails and hasn't decided whether to pay the $1,400 or appeal to the City Council.

"I'm waiting to see if the city council takes action against the city manager over the next two city council meetings," he said in an email Saturday.

Jones had asked to inspect the emails, but in the June 17 email, Peterson said:
The City is not going to allow you (or any other requester) to examine emails on-screen. This means it will be necessary for someone to retrieve and print both archived and currently stored emails. The charge for such printing will be identical to that of providing copies.
However, the state Open Records Act states that unless a statutory exemption applies, "All records of public bodies and public officials shall be open to any person for inspection, copying, or mechanical reproduction during regular business hours." (OKLA. STAT. tit. 51, § 24A.5)

Jones requested the emails on May 24. In an email June 16, Jones asked City Clerk Susan White when the emails would be available for viewing. "I think eighteen (18) working days is adequate time to allow me to view these records," Jones said in the email.

Peterson responded:
We have neither a duty nor a policy of reporting our office operations to you. Our obligation ends with complying with the Open Records Act and that does not include explaining delays to you.

Notwithstanding that fact, and not hereby setting any precedent of explaining ourselves to you, I will inform you of the following:
  • For a portion of the time since your request, Ms. White was out of town and unable to give this her attention.
  • As to another staff person being designated to reply to your request in Ms. White’s absence, that person has been preoccupied with a competing records requests that has literally numbered in multiple thousands of documents. That alone is a legitimate cause for the delay you have experienced.
Peterson said that based on requests for emails, "not just from you and not singling you out for any kind of disparate treatment, we are instituting a more formalized procedure regarding email requests."

"Don’t bother asking for a copy of a 'policy' as adopted by the City Council because this is an internal administrative decision that is outside the scope of Council oversight," Peterson added.

In a July 12 email, Peterson said Jones would have to pay the $1,400 before the city would complete his records request.

"Charges thus far do not include staff time for internal review to ensure compliance with all provisions of the Open Records Act," said Peterson.

Jones had already paid a $120 deposit, which Peterson said would be "applied to the final computation of charges."

Once the $1,400 payment is received, the records would be available "both in written and electronic format as requested, within two business days," Peterson said.

"If you advise us that you do not wish to proceed any further with this matter, or if we do not hear from you within 30 days from today’s date, we will not expend any more time on the request and your $120.00 deposit will be returned," he said.

Under the 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))

In 1992, the state Supreme Court said the "reasonable, direct costs" for copying computer records should be "based upon the cost of materials [and] labor needed for providing the computer program and service to produce the requested data." (Merrill v. Oklahoma Tax Com'n, 1992 OK 53, ¶ 13)

Taking into account that decision and the statute’s admonition that fees are not to be used to discourage requests, a 1996 attorney general opinion said, "Public bodies . . . may only recover the cost of materials and labor specifically incurred in reproducing existing computer records in a computer-readable format. This means the public body could charge for:
  • "The storage media used, including disk, tape, or other format unless provided by the requestor;
  • Any access or processing charges imposed upon the public body because of the request;
  • Any hardware or software specifically required to fulfill the request and reproduce the record in computer-readable format which would not otherwise generally be required or used by the public body; and
  • The cost of labor directly attributable to fulfilling the request." (1996 OK AG 26, ¶ 10. See also 2005 OK AG 21, ¶ 11 (reaffirming 1996 OK AG 26))
"The public body would not, however, be able to charge for:
  • Hardware or software or a percentage thereof which is otherwise generally required or used by the public body for day-to-day operations;
  • Storage, processing or access charges not specifically linked to the request;
  • Maintenance and materials generally required by the public body for day-to-day operations and not directly resulting from the request.
"In the context of a request for a paper record, this is like a public body being unable to charge for (1) a percentage of the cost of a typewriter or copying machine used to make the copies; (2) the cost of archiving and storing the records; or (3) the cost of fixing a copier which broke while copying a record," the opinion said.

A "per-page fee may not be charged for electronic copies of records which are kept in a computer-readable format," a 2005 attorney general opinion said. (2005 OK AG 21, ¶ 11)

The Open Records Act says fees "shall not be used for the purpose of discouraging requests for information or as obstacles to disclosure of requested information." (OKLA. STAT. tit. 51, § 24A.5(3)(b))

Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications

The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.

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