The Edmond Sun

September 11, 2012

Open records case to be examined

By James Neal
CNHI News Service

ENID — The Oklahoma Supreme Court is taking on the question of whether a state contractor’s fee schedule for online court documents violates the Open Records Act.

Mike Evans, administrative director of the courts, told the Tulsa World he asked the Supreme Court to review a policy that limits access to documents on the On Demand Court Records website to members of the Oklahoma Bar Association and charges a $50 per month fee to download files.

Oklahoma’s online court records currently are maintained on two websites. Oklahoma Supreme Court Network, OSCN, serves 13 counties, including the state’s largest courts. The remaining 64 counties are served by ODCR under a 2009 contract with Duncan-based software management firm KellPro.

A new statewide Unified Case Management System is currently planned to replace both OSCN and ODCR and compile records of all Oklahoma courts on one website — paid for with tax dollars and with no-fee access to the public.

Until the new system takes over, KellPro plans to continue charging the fees to download court documents, a practice some critics say violates the company’s 2009 state contract and/or the Open Records Act.

KellPro CEO James Sorensen told the News & Eagle Monday the company’s arrangement with the bar association predates its 2009 contract with the state, and the fee schedule is “nothing new.”

“We’ve only offered access to bar association members since it first started, and it’s never been free,” Sorensen said. “This is nothing new. Back in 2009, we launched this service because we had a lot of people saying it cost too much to drive to these county courthouses.”

Sorensen said the company always has offered basic court docket information free to the public, but downloads of court document images come at a price and are limited to bar members.

“The bar association was a group the court clerks, who govern our software, were comfortable with,” Sorensen said.

And, he said, KellPro couldn’t change its restrictions after signing the 2009 contract because the contract locked in the status quo until the new case management system is launched.

“That contract limited any further development, because any development from that point on was solely for the Unified Case Management System,” Sorensen said. “That contract was signed after we already had launched our beta product with the Oklahoma Bar Association members, and there has been no change to who has access or anything since that point.”

Sorensen also drew distinctions between the funding mechanisms for OSCN and ODCR. He said ODCR is funded under its contract to post court information, but not the actual documents.

“We don’t receive any funds to offer those documents, that’s just been a service KellPro provides,” Sorensen said. “The images that are available on OSCN are limited, but they’re free. And the reason they’re free is they’re on a taxpayer-funded website.”

Some users, including the Enid News & Eagle, have until recently been able to view and print documents from ODCR without a bar association membership, login password or $50 fee to KellPro. Asked why that has now changed, Sorensen said “Nothing has changed ... I’m not sure how that would have happened, and it should not have been the case.”

Other officials contend open and equal access to the public court documents should have been the case all along.

“The state supreme court and the appeals courts agree, the Open Records Act applies to these documents, to court records,” said Joey Senat, a professor of media law at Oklahoma State University and an open government advocate.

“The Open Records Act doesn’t allow for special access by certain groups,” Senat said. “The bar association members are no more entitled to access than anyone else.”

There are fees charged under certain circumstances for obtaining court records, such as the court clerks’ fee schedule for faxing or copying documents.

But, Senat said, any fee charged for access has to be equally applied and be limited to the cost of producing the document.

“The Open Records Act and attorney general opinions and court decisions make it clear: The cost of any records request is the direct, reasonable cost of providing that specific record,” Senat said. “I’m not sure how a flat subscription fee would work and still be in compliance with the Open Records Act.”

Senat also took issue with KellPro’s commercial marketing of the document downloads, since other companies do not have the access to the documents available through KellPro’s contract.

“Any other company should be entitled to access those records and provide them to the public, and I don’t believe that’s the case,” Senat said. “Essentially, KellPro has a monopoly on providing online access to them.”

Senat said the state supreme court should require the fees and bar association restriction for document access be lifted from ODCR.

Sorensen said the path to equal and open access to court documents is full implementation of the Unified Case Management System, not a change to the way KellPro does business.

“We know the best long-term answer to availability is the Unified Case Management System,” Sorensen said.

But, KellPro will not play a role in the new system once it is implemented. The company lost out in bidding for that contract to AMCAD, a Virginia-based software company that specializes in court document management.

“Our software is going to be replaced, and as it is replaced, those counties will be dropping off ODCR,” Sorensen said. “We fully support the Unified Case Management System, we just won’t be involved in it once its implemented.”

Just how long KellPro will be able to continue collecting its fees for and limiting access to court documents on ODCR is uncertain. No timeline for the court’s review of the KellPro policy was available Monday, and implementation of the new system is not scheduled to begin until next year.