DA says search fee may be charged for promptly sorting out Pawnee County commissioners' e-mails about controversial public project

District Attorney Larry Stuart says a search fee may be charged to taxpayers for promptly responding to their request for e-mail exchanges among Pawnee County commissioners regarding a proposed recycling facility and between the commissioners and an engineering consultant about the same project.

The fee for sorting through commissioners' e-mails to find the requested ones would be an estimated $101.08 (seven hours at $14.44 an hour), the requesters say they were told today.

Stuart, district attorney for Pawnee and Osage counties, said the fee may be charged if the search is causing "excessive disruption of the essential functions of the operations of" the county commission office.

In a May 29 letter to one of the county residents requesting the e-mails, Stuart quoted an Open Records Act provision specifically allowing a search fee to be charged “if the request (a.) is solely for commercial purposes, or (b.) would clearly cause excessive disruption of the essential functions of the public body.” (OKLA. STAT. 51, § 24A.5(3))

However, Stuart did not mention this subsequent language in the same provision:

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.

In a 1996 opinion, state Attorney General Drew Edmondson described that language as a “legislative warning,” saying:

Should a public body choose to charge a search fee it should proceed with caution in view of the legislative warning set forth in the Act which provides in pertinent part: ‘In no case shall a search fee be charged when the release of said documents 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.’ (1996 OK AG 26, ¶ 13 (quoting OKLA. STAT. tit. 51, § 24A.5(3))

Using absolute terms of his own in a 1999 opinion, Edmondson said, “Further, a search fee cannot be charged when release of public records is in the public interest, such as release to the news media, scholars, authors or taxpayers seeking to determine if government affairs are being properly performed.” (1999 OK AG 55, ¶ 15)

Legislative intent also was “quite clear” to then-Attorney General Robert H. Henry in 1988, when he said public bodies could not charge a search fee to reporters investigating government operations.

“[T]here is no situation under which a member of the news media may be lawfully charged a search fee by a public body,” he said. “51 O.S. 24A.5(3) … is quite clear on that point when it decrees ‘in no case’ may such search fees be assessed in such circumstances.” (1988 OK AG 35, ¶ 6 (citing OKLA. STAT. tit. 51, § 24A.5(3))

That prohibition on search fees would seem to apply to the request for the Pawnee County commissioners' e-mails given that the same sentence in the statute includes both the news media 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 specific request by residents Laurie Mittasch and Jana Dallas-Wagner seems to meet that requirement.

"We have been having difficulty obtaining information on the 'recycling facility' project, and it has become a very frustrating endeavor," Dallas-Wagner told the FOI Oklahoma Blog.

The engineering consultant, Craig Treiber, is being paid $6,000 a month plus expenses from tax monies to coordinate the proposed waste recycling/biomass processing facility.

Treiber was paid nearly $30,000 from January to May 7 for his work on the project, according to The Pawnee Voice on June 2.

(The Pawnee Voice also reported that no contract for Treiber was on file with the Pawnee County clerk despite First Assistant District Attorney Jeff Jones being asked by county commissioners on Nov. 25 to write a contract for Treiber.)

Pawnee County commissioners have conceded publicly that Treiber reported to them via electronic mail.

The project itself is a controversial one that is drawing heated public opposition, according to The Cleveland American.

Consequently, it would seem that no search fee should be charged to Dallas-Wagner and Mittasch to fulfill their request.

Dallas-Wagner told the FOI Oklahoma Blog that 29 e-mails were forwarded to her between her request on May 17 and May 20.

On May 26, she was told by commission secretary Kandy Jump via e-mail that Stuart and First Assistant District Attorney Jeff Jones had told Jump to stop forwarding e-mails and instead "prepare an estimate of how long it will take me to complete the task plus the time I have already spent, and multiply it by my hourly wage to arrive at an estimated cost that will have to be paid upfront."

In Stuart's letter, he said it was taking Jump "considerable time to sort through all e-mails received to determine which ones are applicable" to the request.

Stuart said the search might have to be done "at times other than normal business hours so that the employee can still perform her normal work."

"Should you determine that you do not desire to post a deposit to perform the research then the same shall be performed as time is available to Ms. Jump and as will not cause a disruption to her office," he said.

The Open Records Act requires that governments provide "prompt, reasonable access" to public records. (OKLA. STAT. tit. 51, § 24A.5(5))

State Attorney General Drew Edmondson has defined that phrase as meaning "only the time to locate and compile the records." (1999 OK AG 58, ¶ 15)

On Wednesday, I sent Stuart an e-mail asking him to clarify any misunderstandings about his reason for charging the search fee. He was told my deadline for posting to the blog was noon Friday. The same e-mail was copied to Jones and Jump. No one has responded.

Stuart is retiring after serving as district attorney for 32 years. Jones is running to replace him.

Mittasch thinks commissioners should have been required to print the e-mails, which should have been put in a binder the public could access.

"If they had done that, I would have no problem visiting the courthouse to view the book or pay for copies if needed," she said.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

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.