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.
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.

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.

Glenpool charging more than $1,400 for set of city official's emails

A Glenpool real estate developer would have to pay more than $1,400 to receive copies of the city manager's e-mails for a seven-week period, according to documents provided to the FOI Oklahoma Blog.

Keith Jones said he believes the emails "will prove" that City Manager Ed Tinker and two other Glenpool officials "should not be employed by the City of Glenpool."

On Monday, the City Council is scheduled to discuss hiring an outside attorney "regarding indefinite but possible future actions of the Council with respect to the employment of the City Manager."

Jones requested emails sent from Assistant City Manager David Tillotson and City Planner Rick Malone to Tinker from April 1 to May 20 and all of Tinker's emails during that time.

Jones has been told to pay the $1,200 that Aktec Computer Solutions charged the city for 14.5 hours retrieving the emails and $200 for the Tulsa company to print 1,051 pages, according to the company's invoice to the city.

Jones, who writes a blog commenting on Glenpool issues, will be charged a $15-per-hour search fee for City Attorney Lowell L. Peterson "to review the resulting emails to determine whether any are subject to confidential privilege," according to a June 17 email from Peterson to Jones.

However, the state Open Records Act prohibits search fees being charged to "taxpayers seeking to determine whether those entrusted with the affairs of the government are honestly, faithfully, and competently performing their duties as public servants.” (OKLA. STAT. tit. 51, § 24A.5(3))

Jones said he isn't sure what final amount he will be asked to pay for the emails and hasn't decided whether to pay the $1,400 or appeal to the City Council.

"I'm waiting to see if the city council takes action against the city manager over the next two city council meetings," he said in an email Saturday.

Jones had asked to inspect the emails, but in the June 17 email, Peterson said:

The City is not going to allow you (or any other requester) to examine emails on-screen. This means it will be necessary for someone to retrieve and print both archived and currently stored emails. The charge for such printing will be identical to that of providing copies.

However, the state Open Records Act states that unless a statutory exemption applies, "All records of public bodies and public officials shall be open to any person for inspection, copying, or mechanical reproduction during regular business hours." (OKLA. STAT. tit. 51, § 24A.5)

Jones requested the emails on May 24. In an email June 16, Jones asked City Clerk Susan White when the emails would be available for viewing. "I think eighteen (18) working days is adequate time to allow me to view these records," Jones said in the email.

Peterson responded:

We have neither a duty nor a policy of reporting our office operations to you. Our obligation ends with complying with the Open Records Act and that does not include explaining delays to you.

Notwithstanding that fact, and not hereby setting any precedent of explaining ourselves to you, I will inform you of the following:

• For a portion of the time since your request, Ms. White was out of town and unable to give this her attention.
• As to another staff person being designated to reply to your request in Ms. White’s absence, that person has been preoccupied with a competing records requests that has literally numbered in multiple thousands of documents. That alone is a legitimate cause for the delay you have experienced.

Peterson said that based on requests for emails, "not just from you and not singling you out for any kind of disparate treatment, we are instituting a more formalized procedure regarding email requests."

"Don’t bother asking for a copy of a 'policy' as adopted by the City Council because this is an internal administrative decision that is outside the scope of Council oversight," Peterson added.

In a July 12 email, Peterson said Jones would have to pay the $1,400 before the city would complete his records request.

"Charges thus far do not include staff time for internal review to ensure compliance with all provisions of the Open Records Act," said Peterson.

Jones had already paid a $120 deposit, which Peterson said would be "applied to the final computation of charges."

Once the $1,400 payment is received, the records would be available "both in written and electronic format as requested, within two business days," Peterson said.

"If you advise us that you do not wish to proceed any further with this matter, or if we do not hear from you within 30 days from today’s date, we will not expend any more time on the request and your $120.00 deposit will be returned," he said.

Under the 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))

In 1992, the state Supreme Court said the "reasonable, direct costs" for copying computer records 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 Com'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, a 1996 attorney general opinion said, "Public bodies . . . may only recover the cost of materials and labor specifically incurred in reproducing existing computer records in a computer-readable format. This means the public body could charge for:

• "The storage media used, including disk, tape, or other format unless provided by the requestor;
• Any access or processing charges imposed upon the public body because of the request;
• 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; and
• The cost of labor directly attributable to fulfilling the request." (1996 OK AG 26, ¶ 10. See also 2005 OK AG 21, ¶ 11 (reaffirming 1996 OK AG 26))

"The public body would not, however, be able to charge for:

• Hardware or software or a percentage thereof which is otherwise generally required or used by the public body for day-to-day operations;
• Storage, processing or access charges not specifically linked to the request;
• Maintenance and materials generally required by the public body for day-to-day operations and not directly resulting from the request.

"In the context of a request for a paper record, this is like a public body being unable to charge for (1) a percentage of the cost of a typewriter or copying machine used to make the copies; (2) the cost of archiving and storing the records; or (3) the cost of fixing a copier which broke while copying a record," the opinion said.

A "per-page fee may not be charged for electronic copies of records which are kept in a computer-readable format," a 2005 attorney general opinion said. (2005 OK AG 21, ¶ 11)

The Open Records Act says fees "shall not be used for the purpose of discouraging requests for information or as obstacles to disclosure of requested information." (OKLA. STAT. tit. 51, § 24A.5(3)(b))


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.

Jet town attorney agrees records copy fee violates Open Records Act; Didn't know AG opinions require records be released in electronic format

Jet's attorney agrees that the town is overcharging for some copies of records.

The small town in Alfalfa County charges 50 cents for each page larger than 8 1/2 by 11 inches, the FOI Oklahoma Blog reported a week ago.

But under the state Open Records Act, the town may not charge more than 25 cents per page for uncertified paper documents 8 1/2 by 14 inches or smaller. (OKLA. STAT. tit. 51, § 24A.5(3))

In an email today to Fox 25 reporter Phil Cross, town attorney E. W. "Bill" Shaw agreed that "the charges were not in compliance with the statute."

Shaw said the charges "will be formally changed at the next board meeting."

Shaw didn't indicate how many people the town has overcharged for copies and whether those people be reimbursed the overcharge.

However, the Enid attorney did seem defensive because of Cross' request for the town's contract with Shaw.

"I am not sure of what your purpose is in these records," wrote Shaw, adding:

As I mentioned to you earlier, the town of Jet is a rural community with a listed population of 204 citizens, mostly elderly. The Town's financial resources are very limited and the work required the town clerk to keep up with all the government imposed tasks is very demanding. The board members receive minimal pay for a great deal of time dealing with the maintenance of the streets, cleaning trash, dealing with abandoned buildings, etc. I try to assist the town when requested. Because I am aware of the limited resources of the town I only charge half of my hourly rate for my services.

Of course, town officials could save themselves some of those fees if they would respond directly to questions from reporters and residents rather than having Shaw run interference for them.

Shaw's email also thanked Cross for sending citations for two state attorney general opinions requiring that records be made available in electronic format if kept that way.

In emails with resident Paul Blackledge, Shaw had defended town officials' refusal to provide meeting agendas as email attachments because doing so isn't required by the Open Records Act. True, it isn't.

But Shaw also said records don't have to be released in electronic format. Wrong, they must be.

Shaw had told Cross that he didn't know about the following two attorney general opinions:

• 1999 OK AG 55, ¶ 23: Because "the Open Records Act does not distinguish between the form of public records," records must be provided "in whatever form they exist."
• 2006 OK AG 35, ¶ 19: "There are no Oklahoma statutes or laws generally requiring public agencies or public officers to keep records in an electronic format. However, if a governmental agency elects to keep its records in electronic format we believe that such agency must provide records under the Act in this format if so requested."

A town attorney -- even one charging half-price -- should have known about these formal written opinions.


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.

The Oklahoma Daily: OU might have overcharged by more than $11,000 for copies of public records

The University of Oklahoma might have overcharged the public for copies of records by more than $11,000 during the past three years, The Oklahoma Daily reported today.

The student newspaper based that number on the university charging 25 cents per page when its costs amount to 8 cents per page.

OU officials told the newspaper that each copy actually costs the university 32 cents, including 27 cents per page for labor.

“We calculated labor at a rate of $25,000 plus benefits at 34 percent and assumed that each copy takes one minute of someone’s time,” said Rachel McCombs, OU Open Records Office director.

The newspaper's reporter, Nicholas Harrison, noted that the slowest copier meeting state agency specifications must make at least 10 copies per minute. Based on that number, the newspaper calculated that the most that OU officials could justify in direct costs was 8 cents per page.

Harrison also noted that Norman commercial copy shops profit from 4 to 10 cents per page. While on campus, the Bizzell Memorial Library charges cost 7 cents per page and the Oklahoma Memorial Union’s Crimson & Cream Copy Center charges 10 cents.

The full story is worth reading.

In an editorial, the newspaper called on the university to lower the copy fee and noted that it has been waiting for more than 16 weeks for records related to OU's purchase of a monastery in Arezzo, Italy, to create residence halls for students and faculty abroad.

Kudos to Harrison and The Oklahoma Daily editors for not meekly accepting what OU was charging for the public's documents and instead challenging the numbers with good reporting, common sense and a calculator.


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.