Monday, August 27, 2012
Q: Does Open Records Act allow county clerk to charge monthly subscription fee to access land records online?
The two Republican candidates for Tulsa County clerk disagree over whether the office may charge $30 a month for online access to land records, the Tulsa World reported Sunday.
The Republican primary runoff election Tuesday will decide who is the next county clerk because no Democrat filed for the office. Republican Earlene Wilson is retiring after 12 years in office.
Candidate Pat Key, who is Wilson's chief deputy, defended the monthly fee, saying it's less than what was once charged.
"The County Clerk's Office would never knowingly violate the Open Records Act, nor have we ever been found to have violated the Open Records Act," Key told the newspaper.
But her opponent, Dean Martin, a salesman for an industrial distribution company, says the fee violates the Open Records Act.
Unfortunately, the candidates didn't explain in the story why their positions are supported by the Open Records Act.
So who's correct?
I am reluctant to say that a monthly subscription fee is absolutely prohibited by the Open Records Act because I don't know the details of the clerk's costs of providing the service, the amount of revenue generated by the subscriptions, what other fee is charged to access and copy the records online, and which fund initially paid for the system.
But a flat subscription fee for online access seems problematic under the Open Records Act because it isn't the direct cost specifically incurred in responding to each request.
Such a fee clearly could not be implemented as a moneymaker for the clerk's office.
The Open Records Act says copy fees cannot be used to "discourag[e] requests for information or as obstacles to disclosure of requested information." (OKLA. STAT. tit. 51, § 24A.5(3)(b))
But the statute doesn't address directly whether a government agency may charge a subscription fee to access public records online.
In June, an Oklahoma Supreme Court decision denying a company access to a county's land description tract index for resale online didn't address whether the county could charge the public a subscription fee for online access. (County Records, Inc. v. Armstrong, 2012 OK 60)
I don't know of a court or attorney general opinion answering that specific question, but their discussions of fees that may be charged for electronic copies of records do provide some guidance.
The Oklahoma Supreme Court in 1992 said that 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." (Merrill v. Oklahoma Tax Comm’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, two attorney general opinions have said, "Public bodies . . . may only recover the cost of materials and labor specifically incurred in reproducing existing computer records in a computer-readable format." (1996 OK AG 26, ¶ 10. See also 2005 OK AG 21, ¶ 11)
That includes charging for "any access or processing charges imposed upon the public body because of the request" and "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." (Id.)
The court and AG opinions were in the context of providing records to a single requester.
Based on their reasoning, it would seem that a county clerk could charge a fee recovering only the direct cost of providing the online access to each particular requester for each request.
But under a subscription fee, requesters are paying the same amount regardless of how many times they access the system. Someone who accesses the system just once per month is paying the same fee as someone accessing it 10 times a day.
Feel free to share your reasoning on whether such a fee complies with the Open Records Act.
Joey Senat, Ph.D.
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.