This responds to your request for an official opinion regarding House Bill 397,[1] which amended O.C.G.A. §§ 50‑14‑1 through 50‑14‑6 (Supp. 2012), (the “Open Meetings Act”) and O.C.G.A. §§ 50‑18‑70 through 50‑18‑77 (Supp. 2012) (the “Open Records Act”). Your request concerns the application of the Open Records Act to the Georgia Superior Court Clerks’ Cooperative Authority’s (the “Authority”) information system for deeds, liens, and plats originally filed and recorded in the offices of the clerks of superior court of the state. The Authority’s information system established pursuant to O.C.G.A. § 15‑6‑97 contains images of the deeds, liens, and plats submitted by the clerks of superior court as well as a database consisting of an index of the submitted data. You have advised that the images of the deeds, liens, and plats are currently available to the public through an online information system subject to payment of fees imposed by the Authority. You have also advised that the Authority has not previously made the index of the submitted data available to the public.

The Georgia Open Records Act provides that

[a]ll public records shall be open for personal inspection and copying, except those which by order of a court of this state or by law are specifically exempted from disclosure. Records shall be maintained by agencies to the extent and in the manner required by Article 5 of this chapter.

O.C.G.A. § 50-18-71(a) (Supp. 2012).

Public record means “all documents, papers, letters, maps, books, tapes, photographs, computer based or generated information, data, data fields . . . prepared and maintained or received by an agency . . . in the performance of a service or function for or on behalf of an agency . . . .” O.C.G.A. § 50‑18‑70(b)(2) (Supp. 2012). As previously mentioned, the Authority is required to maintain “a state-wide uniform automated information system for real and personal property records . . . .” O.C.G.A. § 15‑6‑97(a). Therefore, it appears that the images of records on the statewide information system, as well as the index data, satisfy the definition of a public record.

As you know, the Authority is authorized

[t]o fix and collect fees and charges for data, media, and incidental services furnished by it to any individual or private entity; provided, however, a schedule of proposed fees and charges shall be filed with the Clerk of the House of Representatives and the Secretary of State by January 2, 1994, and annually thereafter for such action as the General Assembly may desire to take thereon, if any . . . .

O.C.G.A. § 15‑6‑94(d)(6) (emphasis added). Thus, the Authority is granted the express power to impose fees and charges for data that it provides to any individual or private entity.[2]

Regarding fees imposed by agencies responding to public record requests, the Open Record Act provides that

[a]n agency may impose a reasonable charge for the search, retrieval, redaction, and production or copying costs for the production of records pursuant to this article. An agency shall utilize the most economical means reasonably calculated to identify and produce responsive, nonexcluded documents. Where fees for certified copies or other copies or records are specifically authorized or otherwise prescribed by law, such specific fee shall apply when certified copies or other records to which a specific fee may apply are sought. In all other instances, the charge for the search, retrieval, or redaction of records shall not exceed the prorated hourly salary of the lowest paid full-time employee who, in the reasonable discretion of the custodian of the records, has the necessary skill and training to perform the request; provided, however, that no charge shall be made for the first quarter hour.

O.C.G.A. § 50‑18‑71(c)(1) (Supp. 2012) (emphasis added). Thus, the Open Records Act expressly provides that agencies may impose fees for records where the fees are otherwise specifically authorized by law. See Powell v. VonCanon, 219 Ga. App. 840 (1996). As previously indicated, O.C.G.A. § 15‑6‑94(d)(6) specifically authorizes the Authority to impose fees. Therefore, the Authority may impose the fees established pursuant to O.C.G.A. § 15‑6‑94(d)(6) in responding to record requests under the Open Records Act.

Therefore, it is my official opinion that the Authority is required to produce images and index data in response to Open Records Act requests for information contained on the online information system for deeds, liens, and plats, but may do so in accordance with a fee schedule adopted pursuant to O.C.G.A. § 15‑6‑94.

Prepared by:

Audrey Marie Seidle

Assistant Attorney General

[1] The Governor signed House Bill 397 and it became effective on April 17, 2012.

[2] The Authority “has only such powers as the legislature has expressly, or by necessary implication, conferred upon it.” Bentley v. State Bd. of Med. Exam’rs, 152 Ga. 836, 838 (1922); Floyd County Bd. of Comm’rs v. Floyd County Merit Sys. Bd., 246 Ga. 44 (1980); Bryant v. Employees Ret. Sys. of Georgia, 216 Ga. App. 737 (1995). “The authority of the Clerks’ Authority is limited to the sum of those express powers plus such powers as are necessarily implied from those expressly conferred.” 1996 Op. Att’y Gen. 96-11 (citing Bentley, 152 Ga. at 838).