Oklahoma
The Oklahoma public
records law specifically covers electronic records. Two problems thwart reporters
in Oklahoma. First, software is not considered a public record. This distinction
in the law makes it easy for an agency to claim that because they use proprietary
software, certain records are not public. In addition, the two-track system
of fees —commercial and noncommercial— has been interpreted by agencies
to mean that if they give data to a reporter in a newsroom, there is no way
to prevent them from sharing it with the commercial side of the newspaper. One
agency told one newspaper reporter that if the newspaper kept the data after
the story for which it was acquired was published, it made it commercial use.
The law.
The Open Records Act defines a record as "all documents, including . .
. data files created or used with computer software, computer tape, disk. .
. or other material regardless of physical form or characteristic." "Record"
does not mean computer software. Okla. Stat. tit. 51, § 24A.3(1) (West
Supp. 1998). It allows "mechanical reproduction" of records in addition
to "copying." § 24A.5(6). The law permits a public body to "keep
confidential records relating to . . . computer programs or software but not
data thereon" if disclosure would give competitors or bidders an unfair
advantage. § 24A.10(B). In June 2000, legislation made information about
sex offenders available.
The land description
tract index of all recorded instruments concerning real property required to
be kept by the county clerk of any county shall be available for inspection
or copying in accordance with the provisions of the Open Records Act but such
index shall not be copied and/or mechanically reproduced for the purpose of
sale of such information. 51 O.S. 1999 Supp. § 24A.5.4.
Cases &
opinions. An agency that has computerized public records "has the authority
to allow a commercial entity access to specific data in that file in an on-line
manner, providing that the system for permitting such on-line access assures
that such computerized records will be fully preserved and safeguarded from
destruction, mutilation and alteration." Okla. Att’y Gen. Op. 85-36
(April 30, 1986). The state tax commission properly refused to disclose data
relating to unclaimed property reports including financial reports, Social Security
numbers, monetary amounts, property descriptions and other identifying information.
Merrill v. Oklahoma Tax Commission, 831 P.2d 634 (Okla. 1992).
"So long as
the item is connected with the transaction of official business, the expenditure
of public funds, or the administration of public property, electronic mail created
by or received by either a State public body or a public body of a political
subdivision constitutes a record which is subject to the Oklahoma Open Records
Act, 51 O.S. 24A.1 to 51 O.S. 24A.26 (1991-2000). [ . . . ]. For purposes of
the Oklahoma Open Records Act, 51 O.S. 24A.1 to 24A.26, and the Records Management
Act, 67 O.S. 201 to 67 O.S. 215 (1991-1999), electronic mail can be retained
either in electronic form-or -on paper. However, if it is retained on paper,
the agency must ensures that sufficient documentation in other records exists
elsewhere in the agency so a person seeking the information could ascertain
all significant material contained in the electronic record." Okla.Att’y
Gen. Op. 01-046 (Nov. 7, 2001).
"A state agency
which has computerized its files, the information therein being of public record,
has the authority to allow a commercial entity access to specific data in that
file in an on-line manner, providing that the system for permitting such on-line
access assures that such computerized records will be fully preserved and safeguarded
from destruction, mutilation and alteration as otherwise required by Oklahoma
law." Okla. Att’y Gen. Op. 85-036 (April 30, 1986)
Fees.
The law limits fees to "the reasonable, direct costs of document copying,
and/or mechanical reproduction." Copying fees are generally limited to
25 cents per page unless prescribed by state law. However, if a request for
records is "solely for commercial purposes," or "clearly would
cause excessive disruption of the public body’s essential functions then
the public body may charge a reasonable fee to recover the direct cost of document
search." A search fee may not be charged "when the release of said
documents is in the public interest, including, but not limited to the news
media, scholars, authors" and other specified requesters. The statute prohibits
charges "for the purpose of discouraging requests for information or as
obstacles to disclosure of requested information." Okla. Stat. tit. 51,
§ 24A.5(3) (1998), see also Okla. Op. Att’y Gen. No 96-26 (Jan. 16,
1997).
Despite several
years of consideration by the legislature, the issue of a fee structure for
electronic records has not been resolved. The Open Records Act merely states
that if the request is for "commercial purposes" or "would clearly
cause excessive disruption of the public body’s essential functions"
then the public body "may charge a reasonable fee to recover the direct
cost of the document search." However, "publication in a newspaper
or broadcast by news media for news purposes shall not constitute a resale or
use of data for trade or commercial purpose and charges for providing copies
of electronic data to the news media for a news purpose shall not exceed the
direct cost of making the copy." The same exception given to the news media
should apply to the public when the release of documents is in the public interest.
The act concludes that "fees shall not be used for the purpose of discouraging
requests for information or as obstacles to disclosure of requested information."
51 O.S. 1999 Supp. § 24A.5.3.
The Open Records
Act states that if the request is for "commercial purposes" or "would
clearly cause excessive disruption of the public body’s essential functions"
then the public body "may charge a reasonable fee to recover the direct
cost of the document search." 51 O.S. 1999 Supp. § 24A.5.3.
Resources. FOI Oklahoma; Oklahoma Press Association