{"id":838,"date":"2014-03-12T15:28:49","date_gmt":"2014-03-12T20:28:49","guid":{"rendered":"https:\/\/danvanfleet.com\/?p=838"},"modified":"2014-03-12T16:13:37","modified_gmt":"2014-03-12T21:13:37","slug":"ohio-online-records-no-fees","status":"publish","type":"post","link":"https:\/\/danvanfleet.com\/index.php\/ohio-online-records-no-fees\/","title":{"rendered":"Ohio Online Records, no fees"},"content":{"rendered":"

Mike DeWine, Attorney General of Ohio released an opinion<\/a> prohibiting fees charged by counties for the viewing of online public records.  It says, if a county auditor makes a public record available for inspection, they may not charge a fee to make them available on a county website.<\/p>\n

<\/p>\n

 <\/p>\n

<\/p>\n

Excerpts from the opinion<\/p>\n

SYLLABUS: <\/h3>\n
    \n
  1. For purposes of R.C. 149.43, a county auditor makes a public record available for inspection when he provides access to the public record online through the county’s website. <\/li>\n
  2. A county auditor may not charge and collect a fee for making public records available for inspection on a county website.<\/li>\n<\/ol>\n

    You have requested an opinion regarding a county auditor\u201fs authority to charge a subscription fee for online access to the county auditor\u201fs public records.1 You explain that the Monroe County auditor has contracted with a private company to build and maintain a portal through Monroe County’s website to allow online access to the county auditor’s public records. The county auditor charges online users of the portal a $15 monthly subscription fee, which equates to the cost the county auditor is charged by the private company to maintain the portal.<\/p>\n

    First, you inquire whether providing online access to the public records of a county auditor’s office constitutes providing a \u201ccopy\u201d of the records or making the records \u201cavailable for inspection\u201d for purposes of R.C. 149.43. You further inquire whether a county auditor may charge a fee to users of the online service that is sufficient to recoup the actual cost incurred by the county auditor in contracting with a private company to build and maintain the online service.<\/p>\n

    Ohio\u2019s Public Records Law<\/h2>\n

    Ohio\u201fs public records law, R.C. 149.43, governs the availability of public records and establishes the public\u201fs right to inspect and request copies of public records. See 2000 Op. Att\u201fy Gen. No. 2000-046, at 2-280. R.C. 149.43(B)(1) states:<\/p>\n

    \n

    [A]ll public records responsive to [a] request shall be promptly prepared and made available for inspection to any person at all reasonable times during regular business hours\u2026. [U]pon request, a public office or person responsible for public records shall make copies of the requested public record available at cost and within a reasonable period of time.<\/p>\n<\/blockquote>\n

    The requirements of R.C. 149.43(B)(1) apply to \u201crecords kept by any public office,\u201d including records kept by \u201cstate, county, city, village, township, and school district units, and records pertaining to the delivery of educational services by an alternative school in this state kept by the nonprofit or for-profit entity operating the alternative school pursuant to [R.C. 3313.533],\u201d unless the record is subject to one of the exclusions delineated in the statute. R.C. 149.43(A)(1); 2001 Op. Att\u201fy Gen. No. 2001-012, at 2-67.<\/p>\n

    \n

    \u201cThe purpose of R.C. 149.43 is to promote open government by providing persons with full access to public records.\u201d 2002 Op. Att\u201fy Gen. No. 2002-040, at 2-258; 2000 Op. Att\u201fy Gen. No. 2000-046, at 2-280. The Ohio Supreme Court has recognized that \u201c[t]he Public Records Act reflects the state\u201fs policy that open government serves the public interest and our democratic system.\u201d State ex rel. Data Trace Info. Serv. v. Cuyahoga Cnty. Fiscal Officer, 131 Ohio St. 3d 255, 2012-Ohio-753, 963 N.E.2d 1288, at \u00b626 (internal quotation marks omitted). The public records law \u201creinforce[s] the understanding that open access to government papers is an integral entitlement of the people, to be preserved with vigilance and vigor.\u201d Kish v. City of Akron, 109 Ohio St. 3d 162, 2006-Ohio-1244, 846 N.E.2d 811, at \u00b617. Accordingly, the provisions of R.C. 149.43 \u201cshould generally be construed to further broad access to public records, and any doubt in that regard should be resolved in favor of disclosure.\u201d 2000 Op. Att\u201fy Gen. No. 2000-046, at 2-280.<\/p>\n<\/blockquote>\n

    Accessing Public Records Online<\/h2>\n

    We now turn to your first question, which asks whether providing online access to the public records of a county auditor\u201fs office constitutes providing a \u201ccopy\u201d of the records or making the records \u201cavailable for inspection\u201d for purposes of R.C. 149.43. This question was answered in 2000 Op. Att\u201fy Gen. No. 2000-046, which considered, inter alia, whether a county recorder was authorized to \u201ccharge and collect a fee for providing Internet access to indexed public records.\u201d 2000 Op. Att\u201fy Gen. No. 2000-046, at 2-281. In concluding that a county recorder did not have authority to charge and collect such a fee, the opinion reasoned that providing access to public records online is tantamount to making public records \u201cavailable for inspection\u201d under R.C. 149.43. Id.<\/p>\n

    Since the issuance of 2000 Op. Att\u201fy Gen. No. 2000-046, there have been no amendments to R.C. 149.43 that warrant us reaching a different conclusion. Just as a public office that posts a hard-copy public record on a bulletin board makes the public record available for inspection, providing access to a public record online in an electronic format makes the public record available for inspection. In either situation, in order for a person to obtain a copy of the public record, an additional step must be taken. In the bulletin board example, a person must make a photocopy of the public record or take a photograph of the public record on the bulletin board. With respect to the public record that is made available online, in order to obtain a copy, a person must download or print a copy of the public record. In either situation, a person may choose not to visit the bulletin board or website at all; or, upon visiting, a person may choose to only view or inspect the public record, or may choose to take extra steps to make his own copy. The public office does not transmit or deliver a copy even to a visitor, merely through the act of posting the record online.<\/p>\n

    \n

    R.C. 149.43(B)(7) provides that, \u201c[u]pon a request made in accordance with [R.C. 149.43(B)] \u2026 a public office \u2026 shall transmit a copy of a public record to any person by United States mail or by any other means of delivery or transmission within a reasonable period of time after receiving the request for the copy.\u201d (Emphasis added.) This language indicates that, when so requested, a public office must directly transmit a copy of a particular public record to the person who requested the copy. When the image of a public record is accessed online, the public office does not transmit a particular copy of a public record to a particular person. Rather, in posting a public record online, the public office has made the public record available for inspection by the public-at-large. But see State ex rel. Patton v. Rhodes, 129 Ohio St. 3d 182, 2011-Ohio-3093, 950 N.E.2d 965, at \u00b615-20 (recognizing that R.C. 149.43(B)(1) does not require a public office to post public records online, yet holding that where the requester gave posting the records online as an acceptable response, the court of appeals did not abuse its discretion in denying a request for attorney\u201fs fees and damages under R.C. 149.43(C)(1) because \u201cthe county auditor satisfied [the requester\u201fs] request for copies of the financial reports \u2013 by posting them online \u2013 within the \u201ereasonable period of time\u201f specified in R.C. 149.43(B)(1)\u201d).<\/p>\n<\/blockquote>\n

    Thus, the actions that are necessary for a person to obtain a copy of a public record from a county website originate with and must be undertaken by the requester. Accordingly, we conclude that for purposes of R.C. 149.43, a county auditor makes a public record available for inspection when he provides access to the public record online through the county\u201fs website.<\/p>\n

    County Auditor\u2019s Authority to Charge a Fee for Accessing Public Records Online<\/h2>\n

    We now turn to your second question, which asks whether a county auditor may charge a fee to individuals who access public records online. A county auditor is a creature of statute and may \u201cexercise only such powers as are expressly delegated by statute, together with such implied powers as are necessary to carry into effect the powers expressly delegated.\u201d State ex rel. Kuntz v. Zangerle, 130 Ohio St. 84, 89, 197 N.E. 112 (1935). \u201c[T]he powers of a county auditor are fixed by statute, and the auditor “may not exceed the authority granted that office by the General Assembly.\u201f\u201d 2012 Op. Att\u201fy Gen. No. 2012-035, at 2-311 (quoting 1984 Op. Att\u201fy Gen. No. 84-005, at 2-15). Moreover, \u201c\u201eabsent statutory authority, a county official may not charge a fee for services that he or his office provides.\u201f\u201d 2012 Op. Att\u201fy Gen. No. 2012-035, at 2-311 (quoting 2006 Op. Att\u201fy Gen. No. 2006-036, at 2-333). Insofar as making public records available for inspection is a service of a county auditor\u201fs office, we must determine whether a statute authorizes a county auditor to charge a fee for making public records available for inspection online through the county\u201fs website.<\/p>\n

    R.C. 149.43(B)(1) requires a public office upon request to promptly prepare and make available for inspection all public records that are responsive to a request and to \u201cmake copies of the requested public record available at cost and within a reasonable time.\u201d As we have determined above, a county auditor that offers access to public records on his office\u201fs website makes a public record available for inspection. R.C. 149.43(B) does not authorize a county auditor to charge and collect a fee for that service. An important distinction exists between providing a \u201ccopy\u201d of a public record and making a public record \u201cavailable for inspection.\u201d \u201cThe right of inspection, as opposed to the right to request copies, is not conditioned on the payment of any fee under R.C. 149.43.\u201d State ex rel. The Warren Newspapers, Inc. v. Hutson, 70 Ohio St. 3d 619, 624, 640 N.E.2d 174 (1994); 2004 Op. Att\u201fy Gen. No. 2004-011, at 2-86 (\u201c[a]lthough R.C. 149.43 authorizes a public office to pass on the cost of making copies of public records to the requester, it does not authorize an agency to charge a fee for making public records available for inspection\u201d).2 No other statutory provision authorizes a county auditor to charge a fee for making public records available for inspection on a county website. See R.C. 319.54 (fees to compensate the county auditor for services); R.C. 319.61(C)(4) (county auditor\u201fs authority to charge a fee for each copy of a resolution, ordinance, entry, order, or certificate filed in the county auditor\u201fs office that relates to special assessments imposed for public improvement projects). Therefore, a county auditor may not charge and collect a fee for making public records available for inspection on a county website.<\/p>\n

    Conclusions<\/h2>\n

    It is, therefore, my opinion, and you are hereby advised that:<\/p>\n

      \n
    1. For purposes of R.C. 149.43, a county auditor makes a public record available for inspection when he provides access to the public record online through the county\u201fs website.<\/li>\n
    2. A county auditor may not charge and collect a fee for making public records available for inspection on a county website.<\/li>\n<\/ol>\n

       <\/p>\n

       <\/p>\n

      – footnotes –<\/p>\n

      1<\/font><\/strong> The ordinary meaning of \u201conline\u201d is \u201cconnected to, served by, or available through a system and esp. a computer or telecommunications system (as the Internet).\u201d Merriam-Webster\u2019s Collegiate Dictionary 867 (11th ed. 2005). \u201cInternet\u201d is defined as \u201cthe international computer network of both federal and nonfederal interoperable packet switched data networks, including the graphical subnetwork known as the world wide web.\u201d R.C. 1.59(K); see also 2000 Op. Att\u201fy Gen. No. 2000-046, at 2-279 n.1 (\u201c[t]he Internet is a collection of interconnected networks of computers that permits and enables communications between individuals, universities, governments, organizations, and businesses. By way of the Internet, these entities can send information to one another in an instant. The Internet thus is a medium for transmitting information\u201d). For the purposes of this opinion, when we use the term \u201conline\u201d we understand that term to refer to electronically accessing a visual image of a public record through the Internet.<\/p>\n

      2<\/strong> A person who inspects a public record posted on the website of a public office may decide to save an electronic image of the public record within a memory component of his computer, print an image of the public record by means of a printer attached to his computer, or both. We reject the idea that, in either of those instances, the person, by his actions, makes a request for a copy of a public record, and further, that the public office makes and furnishes to him a copy of the public record, as understood by R.C. 149.43(B). See 2004 Op. Att\u201fy Gen. No. 2004-011, at 2-86 (\u201c[r]eading R.C. 317.32(I) [now R.C. 317.32(G)] and R.C. 149.43 together, we conclude that, a county recorder has no authority to impose a fee upon a member of the public who is using his own digital camera or imaging equipment to make copies of documents in the recorder\u201fs office\u201d).<\/p>\n","protected":false},"excerpt":{"rendered":"

      Mike DeWine, Attorney General of Ohio released an opinion prohibiting fees charged by counties for the viewing of online public records.  It says, if a county auditor makes a public record available for inspection, they may not charge a fee to make them available on a county website.<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":false,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2},"jetpack_post_was_ever_published":false},"categories":[3],"tags":[],"class_list":["post-838","post","type-post","status-publish","format-standard","hentry","category-general","entry"],"aioseo_notices":[],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/p4wyVb-dw","jetpack_likes_enabled":true,"_links":{"self":[{"href":"https:\/\/danvanfleet.com\/index.php\/wp-json\/wp\/v2\/posts\/838","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/danvanfleet.com\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/danvanfleet.com\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/danvanfleet.com\/index.php\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/danvanfleet.com\/index.php\/wp-json\/wp\/v2\/comments?post=838"}],"version-history":[{"count":2,"href":"https:\/\/danvanfleet.com\/index.php\/wp-json\/wp\/v2\/posts\/838\/revisions"}],"predecessor-version":[{"id":840,"href":"https:\/\/danvanfleet.com\/index.php\/wp-json\/wp\/v2\/posts\/838\/revisions\/840"}],"wp:attachment":[{"href":"https:\/\/danvanfleet.com\/index.php\/wp-json\/wp\/v2\/media?parent=838"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/danvanfleet.com\/index.php\/wp-json\/wp\/v2\/categories?post=838"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/danvanfleet.com\/index.php\/wp-json\/wp\/v2\/tags?post=838"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}