Judge vacates ruling that Grady County fee for digital copies of assessments database violates Open Records Act

A judge is giving the Grady County assessor another opportunity to argue that her fee for an electronic copy of a database of all real property assessments complies with the state Open Records Act, The Oklahoman reported Friday.

District Judge Richard Van Dyke on Thursday threw out his previous ruling that the county assessor could no longer charge more than $26 for a digital copy of the database because the direct, reasonable cost of searching for and burning the records onto a CD or DVD is no more than that amount. (Hurlbert v. Firestone, CJ-08-00790 (Grady Co.))

However, an assistant district attorney argued that the ruling came about only because Grady County Assessor Bari Firestone had not been notified of the lawsuit and, therefore, had not responded. The plaintiff's attorney, Douglas A. Wilson, a board member of FOI Oklahoma Inc., said Firestone and the assistant district attorney had been notified.

Wilson said another hearing will be held.

The lawsuit is one of four filed against Oklahoma county assessors 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.

Hurlbert is challenging the assessors' practice of charging five cents for the first 25,000 records and two cents thereafter.

In each case, the judge ruled that the fee violates the state Open Records Act because it is "not limited to recovering only the reasonable, direct costs of record copying and any necessary record search."

Van Dyck had said Grady County may no longer charge more than $26 for the database.

Judges limited Muskogee, Osage and Wagoner counties to $50 for their databases.

In all four rulings, the judges have said Hurlbert is entitled to his reasonable attorney fees and costs.

For more background on the lawsuits and the relevant law, read these blog postings.


Joey Senat, Ph.D.
Associate Professor
OSU School of Journalism

Court clerks may charge up to $1 for the first page and 50 cents for each subsequent page for copies of any “instrument of record or on file”

County court clerks may charge more than the 25-cent limit for uncertified copies set by the Oklahoma Open Records Act, according to a recent attorney general opinion.

Instead, court clerks may charge up to $1 for the first page and 50 cents for each subsequent page for copying any “instrument of record or on file” as allowed by another state statute, according to the written opinion released Oct 7. (2009 OK AG 27)

“Both [statutes] address many of the same records to be copied, such as a divorce decree or a petition in a civil lawsuit,” the opinion noted. (¶ 8)

However, court clerks should follow the statute setting the fee schedule for court records because it “prescribes fees in specific circumstances applicable to a specific official” and was amended more recently than the Open Records Act to reflect the Legislature’s intent regarding the fees, reasoned Attorney General Drew Edmondson in the opinion.

The opinion was in response to a question posed by state Sen. Patrick Anderson, R-Enid.

“Whether a court clerk may follow the fee schedule set out in the ‘Fees of Court Clerks’ statute at [OKLA. STAT. tit. 28, § 31] or must follow the ORA, has not been directly answered in an Attorney General Opinion or court decision,” wrote Edmondson. “Thus we address it today for guidance not only to court clerks but to other public officials.”

The Open Records Act states, “Notwithstanding any state or local provision to the contrary, in no instance shall the record copying fee exceed twenty-five cents ($0.25) per page . . . .” (OKLA. STAT. tit. 51, § 24A.5(3))

The statute setting the court fees states, “Notwithstanding any other provision of law, the clerk of the district court, or the clerk of any other court of record, shall charge and collect the following fees for services by them respectively rendered and none others, except as otherwise provided by law: Making copy of an instrument of record or on file, first page $1.00 … subsequent pages (each)."

“Thus, we are faced with two statutes, both of which purport to make their provisions applicable in spite of any other law,” wrote Edmondson. “Which controls? (2009 OK AG 27, ¶ 3)

“If a conflict exists, as one does here, the two principles of statutory construction ... apply. Generally, a specific statute controls over a general statute. An amendment to a statute enacted later in time controls over an earlier conflicting statute.” (Id. at ¶9)

Legislators amended the Open Records Act in 1992 “to provide that the $0.25 limitation applies "[n]otwithstanding any state or local provision to the contrary." (Id. at ¶ 6)

One year later, the statute regarding court clerk fees was amended to include the limitation "[n]otwithstanding any other provision of law.” (Id. at ¶ 7)

The opinion applies only to fees that may be charged for copies of instruments of record or on file. For other public records a court clerk could be asked to copy, “the fees charged are subject to the Open Records Act." (Id. at ¶ 13)

“Whether a document is 'an instrument of record or on file' is a question of fact that cannot be answered in an Attorney General's Opinion.” (Id.)


Joey Senat, Ph.D.
Associate Professor
OSU School of Journalism