Cnty. Records, Inc. v. Armstrong, No. 109,049.

• Court: Supreme Court of Oklahoma
• Writing for the Court: COLBERT
• Citation: 299 P.3d 865
• Decision Date: 08 April 2013
• Docket Number: No. 109,049.
• Parties: COUNTY RECORDS, INC., an Oklahoma corporation, Plaintiff/Appellee, v. Peggy ARMSTRONG, Rogers County Clerk, Oklahoma, Defendant/Appellant.

299 P.3d 865

COUNTY RECORDS, INC., an Oklahoma corporation, Plaintiff/Appellee,
v.
Peggy ARMSTRONG, Rogers County Clerk, Oklahoma, Defendant/Appellant.

No. 109,049.

Supreme Court of Oklahoma.

June 19, 2012.
As Corrected on Denial of Rehearing April 8, 2013.

APPEAL FROM DISTRICT COURT OF ROGERS COUNTY; Honorable Terry H. McBride
¶ 0 Company, in business of operating a website that provides land records to on-line subscribers, requested electronic copies of the official tract index and land documents from the Rogers County Court Clerk. The requests were denied and the company brought an action for declaratory judgment asserting a right to the documents under the Open Records Act and a determination of the appropriate fee. Summary judgment was granted for the company.
REVERSED AND REMANDED WITH INSTRUCTIONS.
David L. Weatherford, Birmingham, Morley, Weatherford & Priore, P.A., Tulsa, Oklahoma, for Plaintiff/Appellee.

David T. Iski, Assistant District Attorney, Claremore, Oklahoma, for Defendant/Appellant.

COLBERT, V.C.J.

¶ 1 A commercial website operator filed this declaratory judgment action seeking a determination of the reasonableness of the fee charged by the Rogers County Clerk for

[299 P.3d 866]

electronic copies of records and for a determination that the corporation was entitled to an electronic copy of the official tract index of county land records. The trial court granted summary judgment to the corporation and directed the Clerk to provide all the requested electronic copies at a “reasonable fee.” This court retained the appeal of the summary judgment on its own motion and reverses and remands with instructions to enter judgment for the Rogers County Clerk.

FACTS AND PROCEDURAL HISTORY

¶ 2 Peggy Armstrong (Defendant) is the Rogers County Clerk. She is responsible for recording and maintaining the county land records and making them available for viewing and reproduction. Okla. Stat. tit. 19, § 286 (2011). As part of that duty, she maintains an official historical tract index which are books in which the date of a document, the type of document, the legal description, the grantor and grantee, and the book and page are recorded. Defendant requires all persons who desire to copy the tract index to execute under oath a written Abstract Affidavit, pursuant to section 24A.5(4) of the Oklahoma Open Records Act, Okla. Stat. tit. 51, §§ 24A.1–24A.29 (2011), and the Oklahoma Abstractors Act, Okla. Stat. tit. 1, §§ 20–43 (2011), that reflects the person is not reproducing or distributing the records for the purpose of sale.

¶ 3 Rogers County contracts with KellPro, Inc. to create and maintain a website for the purpose of publishing text information entered by the County Clerk's office into the KellPro software along with images of documents stored electronically at the clerk's office. Rogers County pays KellPro a fee based on the volume of data stored and KellPro makes copies of the images of land documents accessible for a fee payable to the County Clerk. Alternatively, Defendant charges a fee of five cents per page for an electronic copy of a document from the land records.¹ In addition to the Rogers County land records, KellPro publishes records for other county clerks in Oklahoma ² and collects a subscription fee for that service from patrons. The contract between Rogers County and KellPro specifically provides that the electronic data remain the property of the County while KellPro retains its intellectual property rights to its software.

¶ 4 County Records, Inc. (Plaintiff) is in the business of operating a website that provides land records to on-line subscribers, including the land records for all 77 counties in Oklahoma. In April 2009, Plaintiff requested electronic copies of land records from the County Clerk's office including an electronic copy of the official tract index. The request for an electronic copy of the official tract index was denied based on Defendant's belief that she is legally prohibited from providing it to Plaintiff for its intended commercial sale of the information. In July 2009, Plaintiff filed this declaratory judgment action seeking to compel production of an electronic version of the official tract index and other land records at a reasonable fee.

¶ 5 Discovery was conducted and on May 21, 2010, Plaintiff moved for summary judgment attaching to its motion: (1) Defendant's response to requests for admissions, (2) the deposition of County Clerk Armstrong, (3) an affidavit of Plaintiff's President, (4) copies of Abstract Affidavits from persons who have obtained photocopies of portions of the official tract index book, (5) the deposition of the County Clerk's computer technician, and (6) the contracts between Rogers County and KellPro. The trial court granted Plaintiff's motion by an order filed December 3, 2010. Defendant brought this accelerated appeal which this court retained on its own motion. The parties were directed to brief the issues.

STANDARD OF REVIEW

¶ 6 Summary judgment is proper only “[i]f it appears to the court that there is no substantial controversy as to the material facts and that one of the parties is entitled to judgment as a matter of law.” Rules for Dist. Cts., Okla. Stat. tit.12, ch. 2, app., Rule

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13(e) (2011). The trial court's ruling on the legal issue is reviewed de novo as a question of law. Kluver v. Weatherford Hosp. Auth., 1993 OK 85, ¶ 14, 859 P.2d 1081, 1084.

ANALYSIS

¶ 7 This matter is controlled by the Oklahoma Open Records Act, Okla. Stat. tit. 51, §§ 24A.1–24A.29 (2011). The stated policy and purpose of the 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.” Id. § 24A.2. The Act provides that “[a]ll records of public bodies and public officials shall be open to any person for inspection, copying, or mechanical reproduction during regular business hours.” Id. § 24A.5. A record is defined as:

all documents, including, but not limited to, any book, paper, photograph, microfilm, data files created by or used with computer software, computer tape, disk, record, sound recording, film recording, video record or other material regardless of physical form or characteristic, created by, received by, under the authority of, or coming into the custody, control or possession of public officials, public bodies, or their representatives in connection with the transaction of public business, the expenditure of public funds or the administering of public property.

Id. § 24A.3(1). A number of items are specifically excluded from the definition of “record” including “computer software.” Id. § 24A.3(1)(a). The Act sets a copy fee for records and a formula for enhanced fees when a request is solely for a commercial purpose or would cause excessive disruption of the public body that holds the records. Id. § 24A.5(3).

¶ 8 A special provision of the Open Records Act applies to the county land records:

The...