Oregon Advisory Opinions May 29, 1979: OAG 79-69 (May 29, 1979)

OAG 79-69.

We are informed that a publishing company specializing in providing the real estate industry with a microfiche retrieval system for property maps and ownership records maintained by county assessors seeks to expand its operation into Oregon. The services offered by this company require that property maps be microfilmed and ownership records, maintained by county assessors on magnetic tape, be reproduced. We are informed that several county assessors have either refused to permit the company to microfilm records or have refused to make available reprints of the assessor's magnetic tape records. In one case, the county assessor has refused to allow the company to make its own copies of the records on the ground that the assessor's office already offers for sale to the public microfilm or microfiche copies of the records involved.

The counties which are either denying access for microfilm purposes or refusing to provide duplicate master magnetic tapes apparently do not contend that the records involved are not public records. Rather, their refusals to comply with the company's requests appear to be based on a contention that, while the public records law requires that copies of records be provided, no particular form of copy is specified. Therefore, the reasoning goes, if the county provides copies in any form, the law's requirement is satisfied. In other words, the public has no right to specify the form of the copies which it receives, or to make its own copies.

The company contends that the copies which would be furnished by the counties would be unsuitable for its purposes because (1) the microfiche copies are not of a quality

suitable for reproduction and, (2) the microfiche copies are arranged for tax and assessment purposes, and modifying the arrangement for the company's purposes would be prohibitively expensive.

It is our opinion that Oregon's Public Records Law, ORS 192.410 to 192.500, does permit the company to make its own copies of the property records involved, subject to certain restrictions, and that a county assessor's office may not arbitrarily deny access to the records for that purpose. We also conclude that the custodian of public records must make those records available to the public, or permit members of the public to reproduce the records, in a form suitable for intended use. Again we add the caveat that the custodian of the records may regulate these activities by reasonable rules, and may charge fees sufficient to recover its costs in making the records available.

At the outset, we point out that the property maps and ownership records involved in this opinion are not exempt from disclosure under any provision of ORS 192.500. ORS 192.420 provides that "every person has a right to inspect any public record of a public body in this state . . . ." ORS 192.430 requires the custodian of any public record to

That statute further provides that the custodian "may make reasonable rules and regulations necessary for the protection of the records and to prevent interference with the regular discharge of his duties." (Emphasis added).

Clearly, the public has a right to inspect and examine public records. Although that right may be tempered by reasonable limitations necessary to protect the records and to avoid disruption in the office, such limitations should, in our opinion, be reasonably drawn to grant the greatest access possible consistent with those goals. As we stated in 37 Op Atty Gen 1087 (1976):

"The 1973 Legislative Assembly enacted the Public Meetings Law and the Public Records Law to provide for expanded citizen awareness and participation in the conduct of the public business by public bodies and broadened access to the records of the various public agencies. It was clearly the sense of the legislature that governmental responsiveness and public participation would be fostered and encouraged by . . . providing that the records of public agencies should be available to the public. As the Oregon Court of Appeals has said:

". . . .

"In light of this evolution and legislation, any doubts in interpreting the legislation should be resolved in favor of providing the public with notice, access and information. Private meetings, executive and emergency sessions, claims of confidentiality and denials of right to inspect records should be the exception and must come clearly and squarely within the statutory authority." 37 Op Atty Gen, supra at 1087-1088. (Footnote omitted).

ORS 192.440(1) provides:

"The custodian of any public record which a person has a right to inspect shall give him, on demand, a certified copy of it, if

the record is of a nature permitting such copying, or shall furnish reasonable opportunity to inspect or copy." (Emphasis added).

This provision could be interpreted to allow the custodian of a public record to prohibit members of the public from making their own copies of the record if the custodian is able to provide certified copies. However, we do not believe that such a restrictive interpretation would conform to either the spirit or policy behind the Public Records Law. In construing a statute, a thing within the intention of the lawmaking body is regarded as within the statute, although not within its letter, and a thing within the letter is not within the statute unless within the intention. Stapler v. Senders, 164 Or 244, 101 P2d 232 (1940).

A principal purpose of maintaining public records is

While a copy of a public record made by the custodian may be accurate as to content, it may not be in a form which is readily useable or comprehensible to the person demanding it. This is particularly true of information stored in the form of magnetic or paper tapes, punched cards, discs, drums or other methods associated with modern information storage systems. If a person wishes to make a copy of a public record which differs from or is in a more useable form than the copy which would be provided by the record's custodian, it is our opinion that ORS 192.440(1) requires that he or she be given the opportunity to do so.

While we find no Oregon cases bearing on the specific question of the form of the copy which must be made available, our conclusion stated above is supported by law from other jurisdictions. In 76 CJS Records, sec 35, p 136, it is stated:

Closely analogous to the fact situation under discussion in this opinion are the cases of Land Title Guarantee and Trust Co. v. Essex, 52 Ohio App 2d 56, 368 NE2d 326 (1977); Menge v. City of Manchester, 113 NH 533, 311 A2d 116 (1973); and Ortiz v. Jaramillo, 82 NM 445, 483 P2d 500 (1977).

In Essex, the public records custodian offered to furnish the land title company with copies of public records at a minimal charge. However, the title company could make copies less expensively using its own equipment, and sought the

its own equipment, and sought the right to do so. The governing statute in this case provided:

"All public records shall be open at all reasonable times for inspection. Upon requests, a person responsible for public records shall make copies available at cost, within a reasonable period of time." Ohio Rev. Co. 149.43.

The court held that the title company had a right to make copies using its own equipment, stating that the statutory right to inspect incorporates within its meaning the right to copy, within reasonable limitations designed to insure the safety of the records and orderly administration of the public office. 368 NE 2d at 327-328.

The cases of Menge and Ortiz, supra, are even closer to the question under discussion. In Menge, the plaintiff sought a duplicate copy of a computerized tape of field record tax assessment cards. The court held that such a tape must be provided, noting that providing the tape would neither endanger the records nor unduly interfere with operation of the assessor's office. The court stated:

In Ortiz, the petitioner sought mandamus to compel the county clerk to furnish, at petitioner's expense and under the clerk's supervision, a duplicate copy of a magnetic tape kept as a working copy of the county voter registration records. In holding for the petitioner, the court stated:

"We are unable to understand why the right to inspect public records should not carry with it the benefits arising from improved methods and techniques of recording and utilizing the information contained in these records, so long as proper safeguards are exercised as to their use, inspection and safety.

"The evidence is clear that copies of the tape can be made with reasonable safety . . . .

"We fail to understand how it can be said the inspection and copying of information contained on a printed and written affidavit of registration, which is a public record, is proper, but the inspection and copy of this identical information from the 'working master record' tape, which is also a public record, constitutes an invasion of the privacy of the individual named in and identified by this information." 483 P2d at 501-502 (Emphasis added).

We have found only one case contra. In Matte v. City of Winooski, 271 A2d 830 (Vt 1970), the petitioner sought the right to photocopy tax assessment records. The Assessor granted permission to examine and hand copy the records, but not to photocopy.(fn2) The court recognized petitioner's right to inspect the records, but stated that the

We believe the court's concerns are adequately addressed under the Oregon statutory provision permitting the custodian of public records to "make reasonable rules and regu-

lations necessary for the protection of the records and to prevent interference with the regular discharge of his duties." ORS 192.430 (Emphasis added).

As a practical matter, copies furnished by the record's custodian will adequately serve the needs of most persons seeking records. In those few cases where a specialized kind of "copy" is required, we believe the custodian should furnish or permit the requestor to make the form of copy required, subject to the custodian's rulemaking authority noted above. This is particularly true where public records are stored in a modern information storage system in a form which is of limited value to the requestor.

While we conclude that the custodian of public records must permit members of the public to make their own copies of public records, with their own equipment, we re-emphasize that reasonable limitations may be placed on access to and use of the records. Such restrictions must be for the sole purposes of protecting the records and preventing disruption of the office caused by the copying. We believe that denial of access on those grounds must have a reasonable basis in fact.

The second question asks whether a home rule county may charge a fee in excess of the actual cost incurred in making a public record available for copying or inspection. The answer is no.

ORS 192.440(2) provides that "[t]he public body may establish fees reasonably calculated to reimburse it for its actual cost in making such records available." (Emphasis added). The question is whether this state law prevails over local government regulations. In regard to city home rule, the Oregon Supreme Court, in LaGrande/Astoria v. PERB, 281 Or 137, 156, 576 P2d 1204 (1978), held that state law prevails where there is "a need to safeguard the interests of persons or entities affected by the procedures of local government." By analogy, that statement also applies to county home rule under Or Const, art VI, sec 10.

The legislature clearly considered the right of citizens' access to public records to be a matter of state-wide concern and intended that the Public Records Law prevail over local governmental procedures which would limit that right. ORS 192.001(1)(b), stating the policy behind the Public Records Law generally, provides:

"The interest and concern of citizens in public records recognizes no jurisdictional boundaries, and extends to such records wherever they may be found in Oregon." (Emphasis added).

The practice of charging a fee in excess of the actual cost incurred in making public records available for inspection or copying would detrimentally restrict public access to such records. Therefore, we conclude that ORS 192.440(2) applies to home rule counties, and that the

fee charged by such a county for copies of public records may not exceed the countys' actual cost in providing the copies.