Ohio agency must provide electronic records at cost

The Ohio Supreme Court has ruled that the Cuyahoga County Recorder’s Office must provide copies of electronic images sought under open records requests at cost – $1 per CD – rather than charging a statutory $2-per-page photocopying fee.

The county argued that the records sought – recorded documents such as deeds and mortgages – were not subject to the public records law. And even if they were, the county claimed, they fell under a provision of state law authorizing a $2-per-page charge for “photocopying a document” held in that office. However, the court ruled that the records were subject to the public records law, and that electronically copying images of files onto a blank CD was not the same as “photocopying.” The Reporters Committee for Freedom of the Press filed a friend-of-the-court brief in the case arguing the same.

Two companies that provide their clients with digital images of public documents recorded by county recorders’ offices challenged fee assessments for CDs of two months’ worth of office records from 2010: more than $200,000 – $2 for each of the 104,000 electronic images copied onto a CD. The recorder buys blank CDs for routine office use at the cost of $31.81 per 100.

In its ruling, the court first rejected the fiscal officer’s claim that since the records did not document activities of the office – but only those of the people submitting the documents to the office to be recorded – they did not fall within the scope of the law.

Instead, the court pointed to the fact that the records were essential to the statutory functions of the office. For example, the court noted, the office is charged by law with keeping a daily register of mortgages and deeds, making indexes of names of parties to the documents received, and rejecting fraudulent documents.

Therefore, the records – which are scanned into the office’s computer system – do document the activities of the office, the court ruled, and are the type of records obtainable under the open records law.

The court then turned to the fiscal officer’s argument that a specific statutory provision authorizing a $2-per-page charge for "photocopying a document” in the recorder’s office applied, rather than an open records law provision that requires public records to be made available “at cost.”

The fiscal officer claimed that since both laws would apply to the electronic records at issue – and therefore would conflict with each other – the court should apply the law that refers specifically to records of the recorder’s office.

The court rejected this claim, finding no conflict between the laws. It differentiated between the plain dictionary definition of “photocopying,” as well as the 5-step technical process of photocopying – under which one may make copies of physical pages only one at a time – and the process of copying electronic images onto a CD, and held that the law permitting the $2-per-page fee applied only to photocopying physical pages.

Therefore, the court ruled, the records copied onto CDs must be sold “at cost”: $1 per CD.

“[C]opying electronic images of recorded documents onto a CD . . . is done through stored computer memory, and the data is stored not in term of ‘pages’ but in terms of sequences of 1s and 0s. No paper is involved in the process,” the court explained.

The court characterized the office as an “outlier” in the state, as most other county recorders’ offices in Ohio charged for the records on CD at cost, rather than at the statutory $2-per-page photocopying fee.

Additionally, the court’s opinion cited attorney general opinions that have also strictly interpreted the $2-per-page fee for photocopying, a fact that was highlighted in the Reporters Committee’s brief. For instance, the attorney general had previously ruled that the office could not assess that fee to members of the public who make photocopies using their own equipment or make copies on the photocopying machine in the recorder’s office without staff assistance.

"You can't have a situation where the government charges the public a cost that is based on producing copies of something when in fact the government is producing digital copies," said David Marburger, one of the attorneys representing the requesters.

He says that to apply the cost of producing paper copies – costs stemming from the time, personnel, and copy machines involved in the process – to digital copies deprives the public "of all the benefits of getting digital copies of public records, because it's going to be prohibitively expensive."

Counsel for the fiscal officer declined to comment for this story.

For additional resources, visit our Open Government Guide’s section on fees for electronic records in Ohio.