July 30--SKIATOOK -- The Skiatook Police Department has been charging far more than state law allows per page to fulfill public records requests and, in some cases, levying a search fee specifically banned by law, a Tulsa World investigation has found.
Last week, Skiatook city attorney Joel Barnaby said the illegal charges would stop. Barnaby said he advised Police Chief John Lawrence to abide by a 2007 city resolution that, according to Barnaby, aligns fees with the state Open Records Act.
"So basically they concede that they've been overcharging the public for years," said Joey Senat, an associate professor of journalism specializing in media law at the OSU School of Media and Strategic Communications.
"Are they going to repay that money to the people who paid too much? ... Are they going to arrest themselves? Is OSBI going to come in and investigate? Because it's a crime to violate the Open Records Act."
In a phone conversation with the World, Skiatook Police Department records clerk Mary Holycross said records cost $4 for the first five pages and 25 cents for each extra page.
The department's records request form, however, cites costs of $4 for "the initial report" and 25 cents for "each supplemental page."
A sign in the waiting room indicated that copies cost $4 for the first page and 25 cents for each additional page.
"That's been there since before I came," she said. "I just never noticed it before. But it's $4 for the first five pages, and a quarter for each page after."
The state Open Records Act allows copying fees of no more than 25 cents per page, except in county offices that have set higher fees under state law.
In practice, however, most requests the department had received were for four or five pages of records, Holycross said. She said she couldn't recall receiving any requests for just one page.
In addition to charging copying fees that do not comply with the law, the police department's records form also states the department charges a search fee, which is not allowed by law in most cases.
The form states that requests requiring searches of more than 15 minutes cost $25 per hour with a $25 deposit.
Basically, the $25 charge is for a trip to the basement.
Holycross said the fee is assessed "if we have to go downstairs and dig through the archives. We keep one year up here, and then the rest go downstairs."
State law says public bodies may not charge search fees unless the requests are "solely for a commercial purpose" or are so large that they disrupt the body's essential functions.
"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," the law states.
Receipts examined by the Tulsa World did not explicitly note the number of pages for each records request.
During the first six months of the year, the department brought in about $462 from records requests. Of these 90 receipts, 64 were for $4. Most of the remaining receipts were for less than $10.
Records indicate the department had charged the $25 fee twice during that period.
Holycross didn't know who set the fee schedule. "It's just always been that way," she said.
After advising Lawrence to change the department's fee schedule, Barnaby said the old system had been in place "for years" but that the chief wanted to do "whatever is in accordance with the Open Records Act."
"According to the chief ... they had been doing (that) for some time before he got there," Barnaby said. "So I don't know how that started, to be honest with you."
Cities and records clerks are all responsible for knowing the law, Senat said. For the police department "to simply say, 'Oops, we made a mistake,' is not good enough," he said.
Although Barnaby said the town's fee schedule abides by the Open Records Act, it potentially includes more illegal charges.
Part D of the schedule permits a charge of $35 per hour, not including search time, for "computer generated reports." Like the police department's fee schedule, this portion of the city resolution contradicts the Open Records Act.
In its definition of what a record is, the Open Records Act includes "data files created by or used with computer software, computer tape, disk, record." It does not set up separate fees for electronic records.
The law also states that "a public body may charge a fee only for recovery of the reasonable, direct costs of record copying, or mechanical reproduction."
Barnaby said that "computer generated reports" means "magnetic tape and contents for computer reports."
"Like back in the days when they kept computer files on magnetic tape wheels," he said.
"There are several places that still charge $35 for computer tape reels," he said. "I think that's what that's referring to."
Skiatook's fee schedule is based on one released by the state and adopted by a number of cities years ago, Barnaby said. He guessed that language was included when the resolution was passed in 2007 "because that form still said that."
"That's kind of outdated," he said. "That's something that could be looked at."
Barnaby said as a contract attorney he wasn't there to witness what was happening, though he's "pretty sure Skiatook's never charged a computer fee of $35."
However, Shirley Lett, Skiatook's clerk and treasurer, said "computer generated report" means "something that our system would have in it already," like payroll. Although the vast majority of records requests were for copies rather than computer-generated reports, Skiatook does charge for the time it takes to retrieve and print the latter, Lett said.
"If it's a computer-generated report, that (rule) is what we have to go by," she said. "(Barnaby's) saying that's something old, like a magnetic tape deal, but I don't think so because we just passed it in 2007. So I don't know. He's saying something different."
The city attorney and town clerk also disagree on another part of the city's fee schedule. In line with the Open Records Act, the town resolution permits a search fee of $4 per quarter-hour for public records in only two instances, one being when the request causes "excessive disruption of essential Town functions."
"Excessive would be if I show up and I want 500 different documents," Barnaby said, noting that it's up to the public agency to make this determination. "If somebody comes in with one or two documents, a normal-type request, they don't charge any search fee."
But to Lett, excessive disruption is "just if it's disrupting your day and you have to take time out of whatever you're working on to get these records."
Over the phone, Lett read from a set of three requests for which the town had charged a search fee.
"It took an hour and 15 minutes, so she charged for the search time and then for the copies," Lett said.
Senat said Lett's view of disruption is not what the law intends.
"It's absolutely outrageous to say that any time a records person stops to provide records that that would be an excessive disruption," Senat said.
The Act requires public bodies to establish records custodians who are available to fulfill requests.
"A public body shall designate certain persons who are authorized to release records of the public body for inspection, copying, or mechanical reproduction. At least one person shall be available at all times to release records during the regular business hours of the public body," it states.
"Unfortunately, nonsense like this is far too common," Senat said. "This law is not new. These requirements aren't new. The limit of 25 cents is not new. So it should not be happening at all. ... It seems to me that the city of Skiatook owes some people a lot of money."
Open Records Act fees
Here are key portions of the Oklahoma Open Records Act outlining copying and other fees that public bodies may charge for records:
--"Notwithstanding any state or local provision to the contrary, in no instance shall the record copying fee exceed twenty-five cents ($0.25) per page for records having the dimensions of eight and one-half (8 1/2) by fourteen (14) inches or smaller, or a maximum of One Dollar ($1.00) per copied page for a certified copy. However, if the request is solely for commercial purpose, or would clearly cause excessive disruption of the essential functions of the public body, then the public body may charge a reasonable fee to recover the direct cost of record search and copying."
--"Publication in a newspaper or broadcast by news media for news purposes shall not constitute a resale or use of a record 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."
--"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."
--"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."
--"The fees shall not be used for the purpose of discouraging requests for information or as obstacles to disclosure of requested information."
Source: Oklahoma Open Records Act, Title 51, Section 24A.5
Molly Bullock 918-581-8321
Copyright 2012 - Tulsa World, Okla.
