County assessor's fee for electronic copy violates Open Records Act

Muskogee County can no longer charge more than $50 for an electronic copy of its database of all real property assessments, a district judge has ordered in a lawsuit over the county assessor’s records fees.

The county assessor’s practice of charging 5 cents for the first 25,000 records and 2 cents thereafter violated the Oklahoma Open Records Act because the charge was “not limited to recovering only the reasonable, direct costs of record copying and record search,” said Judge Norman D. Thygesen in a judgment and injunction issued June 18, 2009.

County officials had defended the practice as being in line with the fees approved by the Oklahoma State Assessors Association during the late 1990s.

But Thygesen’s ruling marks the second time an Oklahoma district judge has said those charges violate the state Open Records Act and barred a county from charging more than $50 for an electronic copy of an assessments database.

Both lawsuits are among a string of cases filed by Roger W. Hurlbert, an FOI Oklahoma Inc. member, over the fees charged by Oklahoma counties for electronic copies of their assessment databases.

“This is a long-standing issue of fee extortion and abuse by many Oklahoma assessors,” Hurlbert told the FOI Oklahoma Inc. blog on Monday.

Hurlbert, doing business as Sage Information Services in California, filed suit against Muskogee, Osage and Wagoner counties in 2007.

Hurlbert said negotiations with Wagoner County officials continue. A similar lawsuit he filed against Grady County in 2008 is pending.

Muskogee County commissioners agreed in September 2008 to settle with Hurlbert.

Hurlbert had offered to pay $50 for each county’s assessment database to be burned onto a CD. But Muskogee County Assessor Dan Ashwood said the cost for the 46,549 records would be nearly $1,700, the Muskogee Phoenix reported.

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)

Hurlbert’s lawsuit alleged that Ashwood’s office could provide the database in about an hour from any computer in the office, the Muskogee Phoenix reported in 2008.

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 this year, is representing Hurlbert in his Grady County lawsuit.

In July 2008, a district judge issued a judgment and injunction favoring Hurlbert. The judge prohibited Osage County’s assessor from charging more than $50 for an electronic copy of the assessments database. The judge likewise found that charging 5 cents for the first 25,000 records and 2 cents thereafter to be an Open Records violation because it was “not limited to recovering only the reasonable, direct costs of record copying and record search.”

In both Osage and Muskogee counties, the judges have said Hurlbert is entitled to his reasonable attorneys’ fees and costs in the cases.


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

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

Pottawatomie and Canadian counties' fees for digital copies of assessments databases violate Open Records Act

Chalk up two more victories for a California businessman in his legal battle with Oklahoma's county assessors over the price for electronic copies of their real property assessments.

In the past month, judges have told Pottawatomie and Canadian counties' assessors that they could charge Roger W. Hurlbert no more than $50 for the electronic databases.

Since 2008, five judges have declared the fees charged by the respective assessors violated the Oklahoma Open Records Act because the charges were “not limited to recovering only the reasonable, direct costs of record copying and record search.”

Hurlbert, an FOI Oklahoma Inc. member, does business as Sage Information Services in California. Hurlbert is represented by Douglas A. Wilson, a board member of FOI Oklahoma Inc.

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))

The most recent rulings in Hurlbert's favor came on March 24 in Pottawatomie County (C-2009-01783) and on April 6 in Canadian County (CV-2009-300).

Hurlbert also has won in Muskogee, Osage and Wagoner counties. A case in Grady County is pending.

In all five victories, 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 postings.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

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