Friday, February 24, 2012

Wagoner County clerk opposes bill exempting clerks' electronic records from Open Records Act

Wagoner County Clerk Carolyn Kusler said she told a state representative that records in her office should be provided to the public regardless of format, but she would like for the Legislature to set a copy fee for digital images just as it has for paper documents.

"The records belong to the public, and while the clerks are charged with protecting and preserving them, in no way does that include denial of access to the information because of the format," Kusler told me this week.

I had asked for her opinion on Rep. Gus Blackwell's House Bill 2605, which would allow county clerks to refuse to "provide any record by electronic means."

While revenue from electronic copies of land records seems to be the reason for the bill, county clerk offices are home to a host of other public documents, such as the receipts and expenditures by county governments, including the payroll for all county employees and all claims for payment for goods and services.

Unlike other government officials subject to the Open Records Act, county clerks would get to chose who gets the more useful electronic copies of those records and who is stuck with paper copies.

The House Government Modernization Committee will likely vote on the bill next Thursday morning. If you want to tell committee members what you think of the bill, you can reach them through the committee's Web page.

The bill appears driven by county clerks opposed to providing electronic copies of land records to anyone but KellPro, a Duncan, Okla., company.

Some clerks apparently are upset by other private companies that buy large amounts of land records to sell on websites. That threatens the copy money that those clerks use to run their offices.

Kusler provides free online access and public viewing stations for land records in her office.

She received FOI Oklahoma's 2009 Sunshine Award for her efforts to improve access to county records.

Kusler said that when Blackwell asked for input from county clerks, "I told him that I was all for providing the public with information stored in my office, no matter the format."

But she would like for the Legislature to standardize the fee that all clerks charge for digital records.

"One of the problems with electronic data is that the legislature has not set a fee for digital images like has been set for paper copies," said Kusler.

"In the interests of providing the public information in all formats, rather than denying the provision of information in electronic format, I would prefer that a fee per image be established by the Legislature and that this fee be included in our fee schedule," she said.

Kusler recommended a $5 fee for each CD, plus 10 cents per image on the CD. The revenue would be deposited into the clerk's lien fee account, which is where the copy money goes, she said.

"This approach would compensate the clerks for the work involved and the supplies that must be on hand to meet the request," she said. "Additionally, it would standardize the fee for all clerks throughout Oklahoma."

Bottom line: Kusler said, "I do not support the bill in its present form, but I hope that it can be revamped to standardize the cost per image for electronic data."

A 2005 attorney general opinion says county clerks may not charge a per-page fee for electronic copies of computer records. (2005 OK AG 21, ¶ 8)

"Because the fees authorized for photographic copies are applicable to a paper-page charge and because electronic copies do not have the tangible aspects of paper, it is the opinion of this office that the per-page fee may not be charged for electronic copies of records which are kept in a computer-readable format," the opinion said.

A per-image fee for digital records could quickly add up to big bucks for a single CD. Perhaps the clerks would settle for a $25 per CD fee.

Keep in mind, too, that since 2000, a $5 fee has been added to each land instrument recorded with each county clerk solely to "increase the net funding level available to the county clerk to maintain and preserve public records." (OKLA. STAT. tit. 28, § 32(D))

But Kusler is correct that legislators should be working out a copy fee for digital records, not giving county clerks the right to refuse to provide any public record in an electronic format.

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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