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

In a digital world, government officials should be putting “all the law” in online databases everyone may view for free

(Essay by Doug Wilson, an FOI Oklahoma Inc. board member and attorney)

What price justice?

In America, when government officials adopt a mentality of "us vs. them," the rule of men tramples underfoot the rule of law and democracy fails.

In a lawsuit brought by a client under the Oklahoma Open Records Act, I recently took the sworn deposition of a gentleman who has worked for the State of Oklahoma for more than 25 years. At the time of his deposition, he was employed by the Ad Valorem Division of the Oklahoma Tax Commission.

Being uncertain of just exactly what I was asking, he responded with a question of his own. After I clarified my question for him, his response took me by surprise:

25-year State Employee: But you're saying John Q. Public comes in and asks and he says, "I want this information." Okay? Am I understanding your question?

Mr. Wilson: Yes, sir. Under the Open Records Act, the government of the people by the people for the people.

25-year State Employee: Where's that government at?

In his defense, maybe he intended his comment to be tongue-in-cheek, but it didn't strike me that way. The phrase, a "government of the people, by the people, for the people," comes from the last line of Abraham Lincoln's Gettysburg Address:

. . . that we here highly resolve that these dead shall not
have died in vain -- that this nation, under God, shall have a
new birth of freedom -- and that government of the people, by
the people, for the people, shall not perish from the Earth.

In America, government should never be "us versus them," but simply "US." When it's just US, it's not hard to understand why the state's digital database(s) of court information is made available at cost to anyone. It's just US.

Money should never stand between a person and justice. Equal Justice for all is worth dying for. Equal Justice for those who can afford it, not so much.

Many people have heard the oft-repeated judicial refrain: "Ignorance of the law is no excuse."

In the digital world in which we live, when we can store entire libraries inside a laptop, those in government should be tripping over each other trying to put "all the law" in one big digital database where every person can view it without charge and find whatever help he or she needs to stay on course.

When a government body in these United States of America charges people more than cost just to see and copy the law, somewhere, Abraham Lincoln most surely weeps.


Douglas A. Wilson
Attorney and Counselor at Law
521 South Hafner Street, Suite B
Stillwater, OK 74074-3980