Does allowing only Oklahoma Bar Association members online access to court documents in 64 counties violate the Open Records Act?

The Oklahoma Supreme Court will decide whether a state contractor's practice of allowing only Oklahoma Bar Association members to download court documents in 64 counties violates the Open Records Act, the Tulsa World reported today.
 
Everyone can access those cases for free through KellPro's On Demand Court Records system, but only bar association members can download the accompanying documents. KellPro charges them a subscription of $50 per month or $600 per year.
 
Everyone not a member of the bar association has to drive to those county courthouses during business hours Monday through Friday (except government holidays) to get copies.
 
KellPro and Mike Evans, administrative director of the courts, disagreed on why KellPro restricts access to documents to bar association members.
 
KellPro's ODCR website tells non-OBA members trying to download records:

While we would prefer to provide the same great access to everyone, we are not permitted to do so at this time. ... We are currently governed by contract with the Administrative Offices of the Courts and the Oklahoma Supreme Court to limit access to active members of the Oklahoma Bar Association.
 
So far, all requests that have been made to the AOC regarding access to the scanned court documents have been denied. Any questions or concerns regarding this limitation should be directed to the Administrative Offices of the Courts.
 
We are not allowed to authorize exceptions, and we cannot grant access to an individual Oklahoma District Court.

The Supreme Court signed a $1 million contract in August 2009 with KellPro Inc. to get data from the courts it serves ready for conversion to a new system in which records from all 77 counties will be available online to everyone for free.
 
The Tulsa World noted that KellPro's state contract specifies "any efforts by KellPro to market, sell, publish, or disseminate court information, including but not limited to providing paid access to case dockets or imaged court documents, through a commercial subscription ... must be authorized, in advance, by the Supreme Court of Oklahoma."
 
Evans told the newspaper that the clause was added before the contract was signed because KellPro had already begun to sell subscriptions to bar members and bulk data to several entities without the Supreme Court's permission.
 
The Supreme Court unanimously issued an administrative directive in October 2009 barring bulk distribution of electronic case information. That decision seemed to violate the Open Records Act by limiting access to electronic records.
 
The court did not tell KellPro to stop selling the online access subscription to bar association members.
 
The Tulsa World asked Evans why the court didn't use its contractual authority to order KellPro to stop selling subscriptions only to OBA members. "I can't answer that because I wasn't in the room," he said.
 
One thing is clear: Court case records are subject to the Open Records Act.
 
"Although the definition of 'public body' contained within the Open Records Act does not encompass judges or Justices generally, the Act's definition of 'records' does include documents filed of record in court proceedings," the Oklahoma Supreme Court said in 2002. (Nichols v. Jackson, 2002 OK 65, ¶ 1)
 
The Court of Criminal Appeals had come to a similar conclusion a year earlier. The majority had noted the purpose of the Open Records Act, its definition of public body and that the statute provides that "[a]ll records of public bodies and public officials shall be open to any person for inspection, copying, or mechanical reproduction during regular business hours." (Nichols v. Jackson, 2001 OK CR 35, ¶ 8)
 
"The Act also states that boards and courts fall under its definition of 'public body', and therefore are subject to its provisions," the majority explained. (Id. ¶ 9)
 
The records at issue, "being documents and papers coming into the custody and control of the Supreme Court in connection with the transaction of the public business of the criminal prosecution …, fall within the purview of the Act," the majority said. (Id. ¶ 10)
 
"Unless the records fall within a statutorily prescribed exception in the Act, the Act requires the records be made available for public inspection and copying," the majority concluded. (Id.)
 
The dissenting judge agreed, saying, "Oklahoma's Open Records Act clearly applies on its face to the courts." (Id. ¶ 4 (Chapel, J., dissenting))
 
So why should only members of the Oklahoma Bar Association be granted online access to court records?
 
Meanwhile, the public continues to pay for the creation of the new system, which is at least six months to one year behind schedule, the Tulsa World noted.
 

 
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.