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The operator of an online news service filed a lawsuit Thursday accusing Muskogee County District Attorney Larry Moore of violating the Open Records Act by not producing documents concerning courthouse security and surveillance when they were requested.
Leif Wright's lawsuit also asks a judge to order Moore to provide requested emails on the subject.
Moore has told Wright's attorney that the IT department housing the emails cannot search them for the requested records.
In September, the Muskogee County Bar Association filed a complaint against Moore accusing him and others in his office of having access to live audio and video feeds of courtrooms while defense lawyers privately consulted with clients, the Muskogee Phoenix reported.
In October, Wright, who operates Muskogeenow.com, requested from Moore's office all records related to the recording of video and audio in the Muskogee County Courthouse.
Moore responded in a letter to Wright's attorney, Ronald E. Durbin II of Tulsa, that most of the records did not exist.
Durbin responded in writing that he found it "extremely difficult to believe that, given the nature of the controversy related to this issue, that no emails and/or text messages exist" and that he had reason to believe they did.
Moore subsequently provided a number of the documents.
However, in a Nov. 7 letter to Durbin, Moore said the District Attorneys Council Information Technology Division, which stores his office emails, "did not have the technological capability to conduct such [a] search for e-mails or text messages."
Wright's lawsuit contends that Moore's office does have the capability to search emails and asks a judge to order Moore to do so.
The lawsuit also accuses Moore of violating the Open Records Act by not providing documents when they were first requested.
Moore told the Muskogee Phoenix Thursday night that had not seen the petition but that he and his office had complied with Wright's request.
"We have given him what he has requested under the Open Records Act," Moore told the newspaper. "You can't give them what you don't have. We've searched the records to the best of our ability and have found nothing else."
But Wright counters in a column this morning:
Moore said he isn't obligated to give the public those public documents, since he has no way to search them.
We believe it is, however, his obligation to do so, and it stretches credulity to say that, in 2012, somehow emails are completely unsearchable.
The most basic home computer has the ability to search emails, why doesn't the agency in charge of making sure those emails get archived have the ability to search them once they're archived?
Darn good question.
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 Tulsa County clerk's chief deputy was elected to the office Tuesday, meaning that the $30 monthly fee to access land records online seems likely to continue.
Pat Key won with 50.5 percent of the vote, besting her opponent, Dean Martin, by just 179 votes, according to unofficial results from the Tulsa County Election Board.
Martin told the Tulsa World that he plans to ask for a recount.
The Republican runoff chose the new Tulsa County clerk because no Democrat filed for the office. Republican Earlene Wilson is retiring after 12 years in the job.
Key has defended the clerk's practice of charging a $30 monthly fee for the public to access land records online. Martin said he considers it a violation of the Open Records Act.
A flat subscription fee for online access seems problematic under the statute because it isn't the direct cost specifically incurred in responding to each request. The fee clearly could not be implemented as a moneymaker for the clerk's office.
Earlier this week, The Journal Record editorialized against the fee, noting that "public records are owned by the public, not the bureaucrats."
"The Tulsa County clerk's office has forgotten that premise," the publication said. "It is in the county's best interest to provide free access; not only does it make government more transparent, it avoids any possible violation of the law and makes the process more convenient for both the public and the clerk’s office.
"More importantly, making public access free is the right thing to do," it said.
The publication's editors believe the subscription violates the Open Records Act but said they haven't sued because the small amount makes "litigation a pointlessly expensive alternative."
Would a class-action lawsuit be feasible?
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.
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.
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'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.
Jet officials who pledged to comply with the letter and spirit of the state's open government laws now won't provide meeting agendas and minutes as simple email attachments.
Also, the town's copy fees posted on the wall at City Hall violate the Open Records Act. The town charges 50 cents for each page larger than 8 1/2 by 11 inches, according to the posted fees.
But 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))
A photo of the town's posted records fees was provided to the FOI Oklahoma Blog by Paul Blackledge, who has chronicled online his attempts to get computerized records from town officials.
Blackledge wants the agendas, as well as minutes, sent to him as email attachments so he can post them on a website he created to make town records available.
"I want to include the agenda with the regular meeting notice that the web site automatically displays a few days ahead of the regular meetings," he said. "This would provide a heads up notice for people away from home or for out of town property owners."
The town doesn't have its own website on which to post the agendas or minutes.
Town attorney E. W. "Bill" Shaw of Mitchell & DeClerck in Enid said the records won't be provided to Blackledge via email because the Open Records Act doesn't require it.
"The state law may permit, but does not require, the Town of Jet to release records by electronic means. If the state law changes to require the release of public records by electronic means, the Board will adopt an appropriate policy for the Town of Jet," Shaw told Blackledge in, ironically, an email.
In another email, Shaw noted that the Open Records Act states, "Except as may be required by other statutes, public bodies do not need to follow any procedures for providing access to public records except those specifically required by the Oklahoma Open Records Act." (OKLA. STAT. tit. 51, § 24A.2)
Of course, that's also the same section that begins with:
As the Oklahoma Constitution recognizes and guarantees, all political power is inherent in the people. Thus, it is 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. ... The purpose of this act is to ensure and facilitate the public's right of access to and review of government records so they may efficiently and intelligently exercise their inherent political power.
Shaw is correct that the statute doesn't require records be sent as email attachments. However, Shaw also seems to say the town doesn't have to provide records in an electronic format at all.
"51 O.S. §24A.3 is merely the definition which includes the form of records that may be maintained that are to be produced under the Act. It is not a requirement that records be produced in any particular form," Shaw said in an email.
But a 1999 attorney general opinion said that because "the Open Records Act does not distinguish between the form of public records," records must be provided "in whatever form they exist." (1999 OK AG 55, ¶ 23)
In a 2006 opinion, then-Attorney General Drew Edmondson said public agencies could not refuse to provide existing computer records in that format.
"There are no Oklahoma statutes or laws generally requiring public agencies or public officers to keep records in an electronic format," he noted. "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." (2006 OK AG 35, ¶ 19)
After Paul Blackledge got no where with Shaw, I wrote the following email to Town Board members Jim Blackledge, Carolyn Crossette and Clerk-Treasurer Donna S. Keller, each of whom had signed FOI Oklahoma's Open Government Pledge in April.
Dear Mr. Jim Blackledge, Ms. Carolyn Crossette and Ms. Donna S. Keller:
Paul Blackledge has contacted me about the City of Jet's refusal to supply him with meeting agendas and minutes via e-mail.
While the Open Records Act does not require records be made available via e-mail, the law does clearly require that records be made available in the format in which they exist.
Each of you signed FOI Oklahoma’s Open Government Pledge in which you pledged “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.”
You also pledged that you and the City of Jet would comply “with not only the letter but also the spirit of Oklahoma's Open Meeting and Open Records laws.”
Given your public commitment to open government and the City of Jet’s apparent lack of a website on which to post these documents for easy access by the public, I am asking that meeting agendas and minutes be made available to Paul Blackledge as attachments to e-mail unless doing so is technologically impossible.
If the latter is the case, what obstacles cannot be overcome to provide the requested records via e-mail attachments? For example, are the meeting agendas and minutes created with a typewriter or in a computer format, e.g. a Word document?
Because you yourselves signed the Open Government Pledge, I am asking that you, not someone else, respond to my inquiry.
I look forward to working with you to resolve this issue.
Sincerely,
Joey Senat, Ph.D.
Instead of a response from them, I received the following e-mail from Shaw:
Mr. Senat,
As the attorney for the Town of Jet Oklahoma , I find your recent email to the town very offensive. What do you know about the town of Jet and the operation of the town government. Have you done anything other that listen to the gripes and complaints of the citizens named.
If the parties that you are so eager to support would use just have of the efforts they have expended in support rather that perpetual criticism, much could be accomplished. No citizen has been denied access to appropriate public records. The town is in compliance with the law.
Did you do any investigation before your contact dated May 6th or did you just take the information provided by a few and decide to join in their continuing antagonism of the town board. Your copying of your letter to the newspapers and others makes it clear that your intentions were to embarrass and attempt to pressure the town board with no concern for the town board and the antagonism that it has be subjected to for months from certain citizens who will be satisfied only if things are done their way.
From the tenor and content of your letter I must conclude that FOI Oklahoma really has no concern for truth, the law or responsible government.
Bill Shaw
E. W. "Bill" Shaw
Mitchell DeClerck
202 W. Broadway
Enid, Oklahoma 73701
580-234-5144
580-234-8890 (Facsimile)
My email was copied to Korina Dove, editor of the Cherokee Messenger Republican, because she had given the Open Government Pledge to the candidates for Jet's April election. The email also was copied to FOI Oklahoma President Bryan Dean, President Elect Lindel Hutson and Paul Blackledge.
As for responsible government, Jim Blackledge, Crossette and Keller could go a long way toward meeting that goal and living up to their pledge by using technology to make government more accessible.
Wouldn't cost the town a penny or much time. And it's simple. Use Google Docs to make the agendas and minutes available online. Create a Facebook page for the town to post the links.
If I can figure out these tools, certainly they could. As elected officials, they have an obligation to do so.
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications
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
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
Comments this week by the state Supreme Court’s chief justice haven’t clarified how the court will handle requests from the general public and press for bulk copies of digital court records.
James Edmondson told The Oklahoman on Tuesday the court would comply with requests from noncommercial entities and the media on an individual basis.
But on the same day, Edmondson also told the Tulsa World the court “will honor media and public requests for information."
Did he mean all or just some?
Edmondson told both newspapers the court’s new prohibition on requests for bulk case data was intended to apply only to commercial entities.
However, the court’s administrative directive, passed unanimously by the justices on Oct. 8, makes no distinction between commercial and noncommercial requests. Nor does it mention requests from the public and press being decided individually by a court official. (SCAD-2009-92)
That the court would deny requests from companies is troubling enough. More disturbing would be a court official deciding which Oklahomans are worthy of receiving digital court records for more than one case at a time.
Edmondson told the Tulsa World this week, "The Supreme Court will comply with the Open Records laws and other laws affecting public records.”
But that law doesn’t allow a sheriff, police chief, mayor, or state agency director to decide who can and who cannot have access to the government records in their possession. For good reason: Government officials have a tendency to shield from public view the documents that embarrass them.
Edmondson’s brother, state Attorney General Drew Edmondson, said a decade ago that requesters can be asked for only enough information to determine if a search fee should be charged because the records request is for a commercial purpose.
Otherwise, he emphasized in a written opinion, “In no event could a public body or public official ever require a requestor to provide the reason for a request for access to records. . . .” (1999 OK AG 55, ¶¶ 18-19)
ALL Oklahomans “are vested with the inherent right to know and be fully informed about their government.” (OKLA. STAT. tit. 51, § 24A.2)
That includes our courts.
To put such a decision in the hands of a bureaucrat would abrogate the intent and purpose of the Oklahoma Open Records Act: “Ensure and facilitate the public’s right of access to and review of government records so they may efficiently and intelligently exercise their inherent political power.” (Id.)
Concerns over the court’s administrative directive perhaps could have been avoided if the justices had included the public in their decision-making.
After all, these records belong to the public.
All we can hope for now is that the court will either rescind or substantially revise its rule.
Joey Senat, Ph.D.
Associate Professor
OSU School of Journalism
The Oklahoma Supreme Court's decision to bar bulk distribution of electronic court records apparently is connected to a plan to consolidate court records from all 77 counties onto one Web site with free access by the public, according to newspaper coverage Wednesday.
Until then, district court records will be available for free on the state-run Oklahoma State Courts Network and the privately owned On Demand Court Records, The Oklahoman reported.
The newspaper reported the Supreme Court signed a $1 million contract in August with KellPro Inc., the operator of On Demand Court Records, to get data from the courts it serves ready for conversion to the new system.
The administrative directive barring bulk distribution resulted from a request by Edmond-based INAD Data Service LLC for electronic copies of all district court and workers' compensation court case information, reported The Oklahoman and Tulsa World on Wednesday.
Chief Justice James Edmondson told the Tulsa World that the court "did not have a specific rule to determine how to handle this request, which could have cost the (requester) an estimated $20,000 to $40,000 to have the request filled."
So the decision was to bar such requests?
Edmondson told the newspaper that media requests for bulk copies should not be affected by the new rule.
However, the directive, which the justices unanimously approved on Oct. 8., states, "Bulk distribution of any electronic case data by a software provider is not allowed.
"Electronic access is available only to the electronic case information of a particular case. When a search for electronic case information for an individual case returns multiple results, each result may be viewed only individually." (SCAD-2009-92)
No mention of exceptions for requests made in the public interest.
Edmondson said the court would "comply with the Open Records laws and other laws affecting public records."
But the directive seems to carve an exception from the Open Records Act. It's an exemption that certainly wouldn't be tolerated in regard to other government records.
The justices are to be applauded for wanting to make district court records from all 77 counties available online for free.
But what does barring bulk distribution have to do with that plan?
Perhaps the justices intend to remove the restriction once the new system is in place. We don't know because they haven't explained their plan to the public.
Joey Senat, Ph.D.
Associate Professor
OSU School of Journalism
Meaningful analysis of the state's court systems would be nearly impossible under an Oklahoma Supreme Court plan to bar bulk distribution of electronic case information, say FOI Oklahoma Inc. members who conduct database reporting.
An administrative directive released Oct. 8 by the court states, "Bulk distribution of electronic case information is not allowed." (SCAD-2009-92)
The justices provided no explanation or justification for the rule. They unanimously approved the directive.
Under the directive, "electronic access is available only to the electronic case information of a particular case. When a search for electronic case information for an individual case returns multiple results, each result may be viewed only individually."
"Bulk distribution of any electronic case data by a software provider is not allowed," according to the directive.
The state Supreme Court earned FOI Oklahoma's inaugural Black Hole Award in 2008 after justices limited online access to court dockets only. The justices also restricted which information the public could obtain from the paper copies of legal documents filed with court clerks.
Following public outcry over the rules, the court rescinded them.
Justice Yvonne Kauger dissented from the original order, saying: "The court made this decision with input only from the court clerks. Others directly affected by the decision — the bar, the bench, the Legislature, the public — were not consulted.”
Seems like they've done that again.
Thank you to FOI Oklahoma board member Doug Wilson for alerting us.
Joey Senat, Ph.D.
Associate Professor
OSU School of Journalism
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
