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Oklahoma Association of Municipal Attorneys

Voluminous Open Records Request

Jared Harrison

Tue, Aug 20, 2024 6:26 PM

Good Afternoon:

One of my municipalities has been inundated in the last few weeks with open records requests. Many have been fairly simple to comply with and they are trying to get through them as timely as possible. However, one came in recently requesting all resolutions passed by the governing body as far back as the 1980s or 1990s. Estimates from city hall think that it would take at least a full week of one person working on that to get all of the records pulled, if not more. They know they need to make the records available and that a search fee is probably reasonable, but they are concerned about whether the requestor will actually pay after the search is completed. Is there authority that would allow the municipality to require prepayment since it will be such a costly search?

I’ve seen some municipalities that specifically say that they will require prepayment in certain instances, but so far I haven’t seen anything for this municipality that says that in their Open Records Fee Sheet. I’m going to see if it might have been in the resolution that approved the fees, but I’m not hopeful it will be there.

So, without something specifically mentioned in the policy, is it reasonable for them to try to require the prepayment or should they just proceed at the risk doing all of the research and not getting paid or take it as a learning lesson and get their policy formally updated?

Thanks in advance for any help you can provide.

[AY8OaK+2H4ydAAAAAElFTkSuQmCC]

CONFIDENTIALITY NOTICE: This e-mail transmission, and any documents, files or previous e-mail messages attached to it, may contain information which is legally privileged and/or confidential, and is solely for the use of the intended recipient(s). If you are not the intended recipient, any review, disclosure, copying, distribution or use of the information contained in or attached to this transmission is strictly prohibited. If you have received this e-mail transmission in error, please destroy it and notify us immediately at (405) 375-6484.

Good Afternoon: One of my municipalities has been inundated in the last few weeks with open records requests. Many have been fairly simple to comply with and they are trying to get through them as timely as possible. However, one came in recently requesting all resolutions passed by the governing body as far back as the 1980s or 1990s. Estimates from city hall think that it would take at least a full week of one person working on that to get all of the records pulled, if not more. They know they need to make the records available and that a search fee is probably reasonable, but they are concerned about whether the requestor will actually pay after the search is completed. Is there authority that would allow the municipality to require prepayment since it will be such a costly search? I’ve seen some municipalities that specifically say that they will require prepayment in certain instances, but so far I haven’t seen anything for this municipality that says that in their Open Records Fee Sheet. I’m going to see if it might have been in the resolution that approved the fees, but I’m not hopeful it will be there. So, without something specifically mentioned in the policy, is it reasonable for them to try to require the prepayment or should they just proceed at the risk doing all of the research and not getting paid or take it as a learning lesson and get their policy formally updated? Thanks in advance for any help you can provide. Jared Harrison Harrison & Mecklenburg, Inc. 202 N. 6th Street P.O. Box 658 Kingfisher, OK 73750 (Phone) 405-375-6484 (Fax) 405-375-6413 Email: jared.harrison@hmlawoffice.com<mailto:jared.harrison@hmlawoffice.com> Website: www.hmlawoffice.com<http://www.hmlawoffice.com/> HM [AY8OaK+2H4ydAAAAAElFTkSuQmCC] CONFIDENTIALITY NOTICE: This e-mail transmission, and any documents, files or previous e-mail messages attached to it, may contain information which is legally privileged and/or confidential, and is solely for the use of the intended recipient(s). If you are not the intended recipient, any review, disclosure, copying, distribution or use of the information contained in or attached to this transmission is strictly prohibited. If you have received this e-mail transmission in error, please destroy it and notify us immediately at (405) 375-6484.

Ray Jones

Tue, Aug 20, 2024 7:07 PM

Jared,

I am aware that some cities and or state agencies have prepayment of fees as part of their process. Norman requires prepayment if the amount exceeds $10.00. The Oklahoma Department of Securities requires prepayment if the amount exceeds $200.00. But, both have clearly identified policies up front.

The Open Records Act at 51 O.S. § 25A.5 (4) (b) says "Any public body establishing fees under this act shall post a written schedule of the fees at its principal office and with the county clerk." Further down at § 25A.5 (6) it states, "A public body must provide prompt, reasonable access to its records but may establish reasonable procedures which protect the integrity and organization of its records and to prevent excessive disruptions of its essential functions." My impression is that the city is definitely authorized to require the prepayment of fees as part of the city's reasonable procedures, especially if gathering the records is going to be labor intensive because such a request can be an excessive disruption.

It should also be mentioned that § 25A.5 (4) (b) also states "In no case shall a search fee be charged when the release of records is in the public interest, including, but not limited to, release to the news media, scholars, authors and taxpayers seeking to determine whether those entrusted with the affairs of the government are honestly, faithfully, and competently performing their duties as public servants." I always found this provision hard to apply when it comes to search fees. Taxpayers who want access to records to check up on the government are not supposed to be charged a search fee. Releasing resolutions of the city governing body seems like it is in the public interest.

Section 25A.5 (4) also states "a public body may charge a fee only for recovery of the reasonable, direct costs of record copying, or mechanical reproduction" when the record requested does not contain individual records of persons where the costs of copying is otherwise prescribed by state law. Some municipalities impose the costs of attorney fees for reviewing record requests of emails. There is absolutely no language in the act about applying attorney fees to a records request. Perhaps the position of these municipalities is that attorney review of documents prior to reproduction is a reasonable direct cost of the of record copying or mechanical reproduction. I have not done any research in this area. So, I cannot provide a definitive opinion. Perhaps there is an A.G. or Court opinion on that wrinkle.

In short, the statute authorizes the "public body" of the municipality to prepare procedures. So, I do not think the administrative head of the municipality can unilaterally adopt a policy on his or her own. If the public body of the city has not made any such procedures, I believe the best practice is not to move forward with a prepayment demand until such policy is in place.

I know some cities make their resolutions available online like their ordinances and other general policy type documents.

Best,

Ray

From: Jared Harrison via Oama oama@lists.imla.org
Sent: Tuesday, August 20, 2024 1:26 PM
To: oama@lists.imla.org
Subject: [Oama] Voluminous Open Records Request

External Email: Use caution when opening links, attachments or responding to this email.

Good Afternoon:

I've seen some municipalities that specifically say that they will require prepayment in certain instances, but so far I haven't seen anything for this municipality that says that in their Open Records Fee Sheet. I'm going to see if it might have been in the resolution that approved the fees, but I'm not hopeful it will be there.

Thanks in advance for any help you can provide.

Jared Harrison
Harrison & Mecklenburg, Inc.
202 N. 6th Street
P.O. Box 658
Kingfisher, OK 73750
(Phone) 405-375-6484
(Fax) 405-375-6413
Email: jared.harrison@hmlawoffice.com mailto:jared.harrison@hmlawoffice.com
Website: www.hmlawoffice.com https://linkprotect.cudasvc.com/url?a=http%3a%2f%2fwww.hmlawoffice.com%2f&c=E,1,WWOYetUma8OA4GH9Mh_fBtGv1yQHe1bsFZ7Aw5cO3AwFQkOX2LNHlM1vRo2RgZQfWzvV41EqjlzJzH6z9EFJiIVBcTW1iLzH7wS99yJJ95I9163kcA,,&typo=1
HM

[AY8OaK+2H4ydAAAAAElFTkSuQmCC]

Jared, I am aware that some cities and or state agencies have prepayment of fees as part of their process. Norman requires prepayment if the amount exceeds $10.00. The Oklahoma Department of Securities requires prepayment if the amount exceeds $200.00. But, both have clearly identified policies up front. The Open Records Act at 51 O.S. § 25A.5 (4) (b) says "Any public body establishing fees under this act shall post a written schedule of the fees at its principal office and with the county clerk." Further down at § 25A.5 (6) it states, "A public body must provide prompt, reasonable access to its records but may establish reasonable procedures which protect the integrity and organization of its records and to prevent excessive disruptions of its essential functions." My impression is that the city is definitely authorized to require the prepayment of fees as part of the city's reasonable procedures, especially if gathering the records is going to be labor intensive because such a request can be an excessive disruption. It should also be mentioned that § 25A.5 (4) (b) also states "In no case shall a search fee be charged when the release of records is in the public interest, including, but not limited to, release to the news media, scholars, authors and taxpayers seeking to determine whether those entrusted with the affairs of the government are honestly, faithfully, and competently performing their duties as public servants." I always found this provision hard to apply when it comes to search fees. Taxpayers who want access to records to check up on the government are not supposed to be charged a search fee. Releasing resolutions of the city governing body seems like it is in the public interest. Section 25A.5 (4) also states "a public body may charge a fee only for recovery of the reasonable, direct costs of record copying, or mechanical reproduction" when the record requested does not contain individual records of persons where the costs of copying is otherwise prescribed by state law. Some municipalities impose the costs of attorney fees for reviewing record requests of emails. There is absolutely no language in the act about applying attorney fees to a records request. Perhaps the position of these municipalities is that attorney review of documents prior to reproduction is a reasonable direct cost of the of record copying or mechanical reproduction. I have not done any research in this area. So, I cannot provide a definitive opinion. Perhaps there is an A.G. or Court opinion on that wrinkle. In short, the statute authorizes the "public body" of the municipality to prepare procedures. So, I do not think the administrative head of the municipality can unilaterally adopt a policy on his or her own. If the public body of the city has not made any such procedures, I believe the best practice is not to move forward with a prepayment demand until such policy is in place. I know some cities make their resolutions available online like their ordinances and other general policy type documents. Best, Ray From: Jared Harrison via Oama <oama@lists.imla.org> Sent: Tuesday, August 20, 2024 1:26 PM To: oama@lists.imla.org Subject: [Oama] Voluminous Open Records Request External Email: Use caution when opening links, attachments or responding to this email. Good Afternoon: One of my municipalities has been inundated in the last few weeks with open records requests. Many have been fairly simple to comply with and they are trying to get through them as timely as possible. However, one came in recently requesting all resolutions passed by the governing body as far back as the 1980s or 1990s. Estimates from city hall think that it would take at least a full week of one person working on that to get all of the records pulled, if not more. They know they need to make the records available and that a search fee is probably reasonable, but they are concerned about whether the requestor will actually pay after the search is completed. Is there authority that would allow the municipality to require prepayment since it will be such a costly search? I've seen some municipalities that specifically say that they will require prepayment in certain instances, but so far I haven't seen anything for this municipality that says that in their Open Records Fee Sheet. I'm going to see if it might have been in the resolution that approved the fees, but I'm not hopeful it will be there. So, without something specifically mentioned in the policy, is it reasonable for them to try to require the prepayment or should they just proceed at the risk doing all of the research and not getting paid or take it as a learning lesson and get their policy formally updated? Thanks in advance for any help you can provide. Jared Harrison Harrison & Mecklenburg, Inc. 202 N. 6th Street P.O. Box 658 Kingfisher, OK 73750 (Phone) 405-375-6484 (Fax) 405-375-6413 Email: jared.harrison@hmlawoffice.com<mailto:jared.harrison@hmlawoffice.com> Website: www.hmlawoffice.com<https://linkprotect.cudasvc.com/url?a=http%3a%2f%2fwww.hmlawoffice.com%2f&c=E,1,WWOYetUma8OA4GH9Mh_fBtGv1yQHe1bsFZ7Aw5cO3AwFQkOX2LNHlM1vRo2RgZQfWzvV41EqjlzJzH6z9EFJiIVBcTW1iLzH7wS99yJJ95I9163kcA,,&typo=1> HM [AY8OaK+2H4ydAAAAAElFTkSuQmCC] CONFIDENTIALITY NOTICE: This e-mail transmission, and any documents, files or previous e-mail messages attached to it, may contain information which is legally privileged and/or confidential, and is solely for the use of the intended recipient(s). If you are not the intended recipient, any review, disclosure, copying, distribution or use of the information contained in or attached to this transmission is strictly prohibited. If you have received this e-mail transmission in error, please destroy it and notify us immediately at (405) 375-6484.