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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.
A House bill allowing county clerks to refuse to provide electronic records would formalize an unconstitutional monopoly that already exists in part because district attorneys won't enforce the state Open Records Act, says the president of a Texas company that sells online access to county records.
Jason B. Smith said county clerks in Oklahoma either won't respond to his firm's requests for land records or tell him to purchase the information from KellPro, a Duncan, Okla., company that contracts with counties to provide online access to the data.
Smith's company is entitled under the Open Records Act to obtain records directly from the county clerks, but he says he can't get district attorneys to tell clerks to comply with the law.
Smith said the Grady County clerk's office refused to provide the records and told him to complain to state Attorney General Scott Pruitt.
Smith did just that last week, asking Pruitt for help "encouraging" the clerks to abide by the statute.
"The systematic denial of Open Records Requests and a lack of State enforcement has, at best inadvertently, created a de facto monopoly," Smith said in the letter.
He said the arrangement conflicts not only with the Open Records Act but also "with the spirit of the Oklahoma Constitution which provides that the 'Legislature shall pass no law granting to any association, corporation, or individual any exclusive rights, privileges, or immunities within this State.'" (See OKLA. CONST. art. 5, § 51)
Smith said Monday that Pruitt's office confirmed receiving the letter and is scheduled to meet next week with county clerks.
But in the meantime, a House committee is considering a bill that would legalize what the county clerks are doing.
The House Government Modernization Committee will likely vote on HB 2605 in the next two weeks.
As this blog noted last month, the bill by Rep. Gus Blackwell would allow county clerks to refuse to "provide any record by electronic means."
That covers a lot of important public records. County clerks keep the records of proceedings of the county commissions, county excise boards, county boards of equalizations and county boards overseeing tax roll corrections. They also keep records of the receipts and expenditures by county governments, including the payroll for all county employees and all claims for payment for goods and services.
And they keep land records such as plats, deeds, oil and gas leases, real estate liens, and other liens against property in the county.
Smith said Blackwell, a Republican representing the Oklahoma Panhandle, hasn't responded to his email and telephone call asking about the bill.
That's the same response Smith's company, TexasFile.com, got from a number of county clerks after requesting electronic copies of their real property image and index data on Aug. 30.
Smith said none of the clerks has provided the information. Some haven't responded at all -- not even by quoting a price for the database, he said.
"There is either a fundamental misunderstanding by the majority of Oklahoma County Clerks of their obligations under the Oklahoma Open Records Act or a coordinated effort by the governmental bodies to deny access to electronic information," Smith told Pruitt. "The County Clerks have expressed little interest in complying with the Law and less concern with any enforceability or retribution for the violations they may be committing.
"The Oklahoma Open Records Act has a noble and essential purpose that far extends the governance of the type of request we presented," said Smith. "However, allowing such blatant and broad disregard for the law undermines every aspect of the Oklahoma Open Records Act."
It sure does. And HB 2605 creates a troubling precedent of allowing local government officials to pick and choose who gets records in which format.
Access to records in an electronic format increases significantly the public's ability to make sense of government information. The format is as critical as the disclosure itself because the format can render the data very useful or practically useless.
Without access to computerized government records from county clerks, Oklahomans will lose a meaningful way to oversee a great deal of government activity.
For those of you interested in telling state legislators what you think of HB 2605, the House Government Modernization Committee is chaired by Rep. Jason Murphey, R-Guthrie. Vice chairman is Wes Hilliard, D-Sulphur.
The other members are Reps.
David Brumbaugh, R-Tulsa;
Josh Cockroft, R-Tecumseh;
David Derby, R-Owasso;
Mark McCullough, R-Supulpa;
Lewis H. Moore, R-Arcadia;
Richard Morrissette, D-Oklahoma City;
Seneca Scott, D-Tulsa;
Aaron Stiles, R-Norman;
Randy Terrill, R-Moore;
John Trebilcock, R-Broken Arrow; and
Purcy D. Walker, D-Elk City.
Murphey and Scott have signed FOI Oklahoma's Open Government Pledge in which they promised "to support at every opportunity the public policy of the State of Oklahoma that the people are vested with the inherent right to know and be fully informed about their government so that they can efficiently and intelligently exercise their inherent political power."
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.
