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An amended version of House Bill 2605 would still let county clerks refuse to provide electronic records, but now it sets a fee of up to 15 cents per page or $75 per book.
The House Government Modernization Committee is scheduled to vote Thursday afternoon on the bill.
At least one county clerk opposed the original version of the bill.
"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," Wagoner County Clerk Carolyn Kusler told me last week.
However, Kusler said she would like for the Legislature to set a copy fee for digital images just as it has for paper documents. Her suggestion was a $5 fee for each CD, plus 10 cents per image on the CD.
Rep. Gus Blackwell amended his bill Tuesday to include the 15 cents per page or $75 per book.
But Blackwell would still exempt county clerks from an Open Records Act requirement that records be provided in an electronic format if kept that way.
County clerks are mad at oil companies and at private companies that buy large amounts of land records to sell on websites. That threatens the clerks' copy money they use to run their offices.
But public records aren't supposed to be money-makers for government agencies.
And 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))
The "County Clerk's Records Management and Preservation Fund" is "for the purpose of preserving, maintaining, and archiving recorded instruments including, but not limited to, records management, records preservation, automation, modernization, and related lawful expenditures." (OKLA. STAT. tit. 28, § 32(C))
HB 2605 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.
County clerks should not get to chose who obtains the more useful electronic copies of those records and who is stuck with paper copies.
Rep. Jason Murphey, R-Guthrie, jason.murphey@okhouse.gov, chairs the Government Modernization Committee. The other members are:
David Brumbaugh, R-Tulsa, david.brumbaugh@okhouse.gov;
Josh Cockroft, R-Tecumseh, josh.cockroft@okhouse.gov;
David Derby, R-Owasso, david.derby@okhouse.gov;
Mark McCullough, R-Supulpa, mark.mccullough@okhouse.gov;
Lewis H. Moore, R-Arcadia, lewis.moore@okhouse.gov;
Richard Morrissette, D-Oklahoma City, richard.morissette@okhouse.gov;
Seneca Scott, D-Tulsa, seneca.scott@okhouse.gov;
Aaron Stiles, R-Norman, aaron.stiles@okhouse.gov;
Wes Hilliard, D-Sulphur, wes.hilliard@okhouse.gov;
Randy Terrill, R-Moore, randyterrill@okhouse.gov;
John Trebilcock, R-Broken Arrow, john.trebilcock@okhouse.gov; and
Purcy D. Walker, D-Elk City, purcy.walker@okhouse.gov.
To read previous postings about HB 2605:
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 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.
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.
Oklahoma's county clerks would no longer have to provide electronic records in that format, under a House bill filed Thursday.
House Bill 2605 is from Rep. Gus Blackwell, a Republican representing the Oklahoma Panhandle.
The bill amends a 1989 statute applying to county clerks by adding, "Nothing in this section shall require the clerk 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.
County clerks 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.
I'm told that county clerks are mad at oil companies and at private companies that buy large amounts of land records to sell on websites. That threatens the clerks' "copy money" they use to run their offices.
But public records aren't supposed to be money-makers for government agencies.
Twenty years ago, the Oklahoma Supreme Court said that for 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)
And 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))
The "County Clerk's Records Management and Preservation Fund" is "for the purpose of preserving, maintaining, and archiving recorded instruments including, but not limited to, records management, records preservation, automation, modernization, and related lawful expenditures." (OKLA. STAT. tit. 28, § 32(C))
For those of you just joining the 21st century, let me explain that 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.
House Bill 2605 is a bad idea that should be buried.
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.
