An In-Depth Look at Search Fees Under the Oklahoma Open Records Act
Over the past few months those of us here at FOIBible have noticed an increase in the number of public bodies charging search fees and also an increase in the amount charged as a search fee. This has led to many questions on the legality of charging search fees and what amounts can be charged.
In this commentary we will discuss the following items:
What is a search fee?
What does the legislature say about search fees?
How do the courts treat them?
How do Attorney General’s opinions treat them?
What is a “search fee?”
This seems like an easy question but in reality it’s kinda difficult to answer as you will see in this article. However, at its most basic level a “search fee” is a fee that a public body can, in certain situations, charge to the requestor to “recover the direct cost of record search….” 51 O.S. § 24A.5(4).
Search fees are sometimes charged in addition to the normal fees charged for copying requested records.
Oklahoma Attorney General’s Search Fee Schedule
The Oklahoma Attorney General has published an “Open Records Act Fee Schedule” on their website. They charge $55 per hour for Clerks, Paralegals, and Legal Assistants time and $85 per hour for Attorney’s time.
They advertise that they bill in 1/4 hour increments and that they include a “minimum search fee of $55.00” for “any request that OAG deems to be commercial or is so large it would clearly cause excessive disruption of OAG’s essential functions.” When the AG “deems” this to be the case then they require payment prior to beginning the search.
There are a few concerns here and we do not believe this schedule is consistent with the legislative intent or spirit of the Oklahoma Open Records Act.
Posting of a Fee Schedule
Oklahoma law mandates that a public body post its fee schedules in two locations. First, the fee schedule must be posted at the public body’s “principal office.” Secondly, it must be posted with the County Clerk. 51 O.S. § 24A.5(4). It’s always a good idea to check these requirements. By way of example the AG’s Office has posted theirs with the Oklahoma County Clerk and they have a filed stamped document proving this.
State Statute
Title 51 provides for the following on copy and search fees (as of July 3, 2025):
Any request for a record which contains individual records of persons, and the cost of copying, reproducing or certifying each individual record is otherwise prescribed by state law, the cost may be assessed for each individual record, or portion thereof requested as prescribed by state law. Otherwise, a public body may charge a fee only for recovery of the reasonable, direct costs of record copying, or mechanical reproduction. Notwithstanding any state or local provision to the contrary, in no instance shall the record copying fee exceed twenty-five cents ($0.25) per page for records having the dimensions of eight and one-half (8 1/2) by fourteen (14) inches or smaller, or a maximum of One Dollar ($1.00) per copied page for a certified copy. However, if the request:
a. is solely for commercial purpose, or
b. would clearly cause excessive disruption of the essential functions of the public body,
then the public body may charge a reasonable fee to recover the direct cost of record search and copying; however, publication in a newspaper or broadcast by news media for news purposes shall not constitute a resale or use of a record for trade or commercial purpose and charges for providing copies of electronic data to the news media for a news purpose shall not exceed the direct cost of making the copy. The fee charged by the Department of Public Safety for a copy in a computerized format of a record of the Department shall not exceed the direct cost of making the copy unless the fee for the record is otherwise set by law.
Any public body establishing fees under this act shall post a written schedule of the fees at its principal office and with the county clerk.
In no case shall a search fee be charged when the release of records is in the public interest, including, but not limited to, release to the news media, scholars, authors and taxpayers seeking to determine whether those entrusted with the affairs of the government are honestly, faithfully, and competently performing their duties as public servants.
The fees shall not be used for the purpose of discouraging requests for information or as obstacles to disclosure of requested information;
Frankly, this is not a difficult statute to understand. We can easily list out the legislative commands from § 24A.5(4).
“a public body may charge a fee only for recovery of the reasonable, direct costs of record copying, or mechanical reproduction.”
A “reasonable fee to recover the direct cost of record search and copying” may be charged IF the request is “solely for commercial purpose,” OR “would clearly cause excessive disruption of the essential functions of the public body.”
“In no case shall a search fee be charged when the release of records is in the public interest, including, but not limited to, release to the news media, scholars, authors and taxpayers seeking to determine whether those entrusted with the affairs of the government are honestly, faithfully, and competently performing their duties as public servants.”
We will see that even though this seems like a clear directive, the courts have not necessarily treated it as such in a couple previous rulings.
Use of fees to deter requests is prohibited
Pay particular attention to the legislative command that fees shall not be used for the purpose of discouraging requests:
The fees shall not be used for the purpose of discouraging requests for information or as obstacles to disclosure of requested information;
This is worth making note of and pointing out to public officials who demand a large fee for search and/or copying records. We see this most often out of law enforcement agencies who claim that they have to hire computer programmers to help them edit police dash and body camera footage. Be sure to remind them that the redactions they want to do are not mandatory. The statute says the law enforcement agency may redact. Additionally, when the open records act was amended after the Ward & Lee v. Claremore case, it was law enforcement, not transparency advocates, who demanded the redactions. So this is what they asked for and it’s not mandatory. Therefore, these high fees are not reasonable or in line with legislative mandates.
Case Law
There are essentially two Oklahoma cases that deal with search fees worth discussing here. We will discuss those now.
McVarish is a very short case that doesn’t even take up two pages of text but it is a favorite of public bodies. In this case the requestor had asked for approximately 4,300 documents and a “substantial portion” of the records required redaction of confidential information. This fact was apparently important to the trial court’s ruling and in-turn, ultimately the Civil Appeals’ ruling.
The Plaintiff argued that regardless of any disruption or not, his request was for the “public interest” and he was a taxpayer trying to determine if the government was operating honestly and faithfully. The trial court and the appellate court were not persuaded by this argument.
The appellate court relied upon Merrill to determine the “public interest” argument. In Merrill the Court held:
“the issue of whether a records request is in the ‘public interest’ does not turn on the bare allegation and mere say-so of the requesting party, but is a question to be determined in light of the circumstances of the case.”
Ultimately, McVarish quoted and agreed with the trial judge in holding that a search fee was allowed:
regardless of “whether or not there’s any public purpose or whether it’s a matter of a private vendetta . . . I think what the legislature was perhaps trying to say was if there’s going to be some sort of substantial disruption of business of the public agency then a fee is not improper.
McVarish is a case that public bodies will point to in support of their charging of a search fee. They like the following quote from the case:
We observe that the public interest is as equally well served by public agencies performing their essential services without burdensome, disruptive records requests as in providing release of information to taxpayers.
Historically, Oklahoma Attorney General Opinions seem to have been more in line with the plain reading of the statute. The difference between the AG Opinions and the case law is in how they define a request being in the “public interest.” Remember the statute clearly mandates:
In no case shall a search fee be charged when the release of records is in the public interest,including, but not limited to, release to the news media, scholars, authors and taxpayers seeking to determine whether those entrusted with the affairs of the government are honestly, faithfully, and competently performing their duties as public servants.
As we have seen the courts have not treated citizens very well when they claim that their request was in the “public interest” and to determine if the public body or public officials are “honestly, faithfully, and competently performing their duties as public servants.”
One example of this interpretation of a clear statutory mandate came in a 1999 Oklahoma Attorney General Opinion:
A search fee may be charged if a request is solely for a commercial purpose or would clearly cause excessive disruption of the public body’s essential function. . . . Further, a search fee cannot be charged when release of public records is in the public interest, such as release to the news media, scholars, authors or taxpayers seeking to determine if government affairs are being properly performed.
The same has been applied to law enforcement agencies:
Law enforcement agencies may charge a search fee if the request is ‘solely for commercial purposes’ or if it ‘would clearly cause excessive disruption of the essential function of the public body.’
Our former AGs have been very strong in their stance that disfavors charging of search fees. Even under the few situations where a search fee may be charged, it is advisable for the public body to do so carefully. Former Attorney General Drew Edmondson cautioned public bodies who choose to charge a search fee in 1996 OK AG 26.
Should a public body choose to charge a search fee it should proceed with caution in view of the legislative warning set forth in the Act.
Will the courts apply the same disfavor to charging search fees to the media? We hope so. It certainly feels like the news media will stand a better chance of winning this argument than the common citizen. Perhaps the courts are cognizant of the negative press they would receive from the news media across Oklahoma if they ruled against transparency. Would the courts treat the “substantial disruption of the essential function of the public body” as a trump card to ignore the clear legislative mandate: “[i]n no case shall a search fee be charged when the release of records is in the public interest….” Only time will tell.
If you need to get help with your FOIA issue, please reach out and one of our attorneys will review your case.
What’s up with Search Fees?
An In-Depth Look at Search Fees Under the Oklahoma Open Records Act
Over the past few months those of us here at FOIBible have noticed an increase in the number of public bodies charging search fees and also an increase in the amount charged as a search fee. This has led to many questions on the legality of charging search fees and what amounts can be charged.
In this commentary we will discuss the following items:
What is a “search fee?”
This seems like an easy question but in reality it’s kinda difficult to answer as you will see in this article. However, at its most basic level a “search fee” is a fee that a public body can, in certain situations, charge to the requestor to “recover the direct cost of record search….” 51 O.S. § 24A.5(4).
Search fees are sometimes charged in addition to the normal fees charged for copying requested records.
Oklahoma Attorney General’s Search Fee Schedule
The Oklahoma Attorney General has published an “Open Records Act Fee Schedule” on their website. They charge $55 per hour for Clerks, Paralegals, and Legal Assistants time and $85 per hour for Attorney’s time.
They advertise that they bill in 1/4 hour increments and that they include a “minimum search fee of $55.00” for “any request that OAG deems to be commercial or is so large it would clearly cause excessive disruption of OAG’s essential functions.” When the AG “deems” this to be the case then they require payment prior to beginning the search.
There are a few concerns here and we do not believe this schedule is consistent with the legislative intent or spirit of the Oklahoma Open Records Act.
Posting of a Fee Schedule
Oklahoma law mandates that a public body post its fee schedules in two locations. First, the fee schedule must be posted at the public body’s “principal office.” Secondly, it must be posted with the County Clerk. 51 O.S. § 24A.5(4). It’s always a good idea to check these requirements. By way of example the AG’s Office has posted theirs with the Oklahoma County Clerk and they have a filed stamped document proving this.
State Statute
Title 51 provides for the following on copy and search fees (as of July 3, 2025):
51 O.S. § 24A.5(4) (emphasis added)
Frankly, this is not a difficult statute to understand. We can easily list out the legislative commands from § 24A.5(4).
We will see that even though this seems like a clear directive, the courts have not necessarily treated it as such in a couple previous rulings.
Use of fees to deter requests is prohibited
Pay particular attention to the legislative command that fees shall not be used for the purpose of discouraging requests:
This is worth making note of and pointing out to public officials who demand a large fee for search and/or copying records. We see this most often out of law enforcement agencies who claim that they have to hire computer programmers to help them edit police dash and body camera footage. Be sure to remind them that the redactions they want to do are not mandatory. The statute says the law enforcement agency may redact. Additionally, when the open records act was amended after the Ward & Lee v. Claremore case, it was law enforcement, not transparency advocates, who demanded the redactions. So this is what they asked for and it’s not mandatory. Therefore, these high fees are not reasonable or in line with legislative mandates.
Case Law
There are essentially two Oklahoma cases that deal with search fees worth discussing here. We will discuss those now.
McVarish v. New Horizons Community Counseling and Mental Health Services and Merrill v. Okla. Tax Comm’n.
McVarish is a very short case that doesn’t even take up two pages of text but it is a favorite of public bodies. In this case the requestor had asked for approximately 4,300 documents and a “substantial portion” of the records required redaction of confidential information. This fact was apparently important to the trial court’s ruling and in-turn, ultimately the Civil Appeals’ ruling.
The Plaintiff argued that regardless of any disruption or not, his request was for the “public interest” and he was a taxpayer trying to determine if the government was operating honestly and faithfully. The trial court and the appellate court were not persuaded by this argument.
The appellate court relied upon Merrill to determine the “public interest” argument. In Merrill the Court held:
Ultimately, McVarish quoted and agreed with the trial judge in holding that a search fee was allowed:
McVarish is a case that public bodies will point to in support of their charging of a search fee. They like the following quote from the case:
Attorney General Opinions
Historically, Oklahoma Attorney General Opinions seem to have been more in line with the plain reading of the statute. The difference between the AG Opinions and the case law is in how they define a request being in the “public interest.” Remember the statute clearly mandates:
As we have seen the courts have not treated citizens very well when they claim that their request was in the “public interest” and to determine if the public body or public officials are “honestly, faithfully, and competently performing their duties as public servants.”
One example of this interpretation of a clear statutory mandate came in a 1999 Oklahoma Attorney General Opinion:
The same has been applied to law enforcement agencies:
Our former AGs have been very strong in their stance that disfavors charging of search fees. Even under the few situations where a search fee may be charged, it is advisable for the public body to do so carefully. Former Attorney General Drew Edmondson cautioned public bodies who choose to charge a search fee in 1996 OK AG 26.
Members of the news media should always be aware of this quote from a 1988 Attorney General Opinion:
Will the courts apply the same disfavor to charging search fees to the media? We hope so. It certainly feels like the news media will stand a better chance of winning this argument than the common citizen. Perhaps the courts are cognizant of the negative press they would receive from the news media across Oklahoma if they ruled against transparency. Would the courts treat the “substantial disruption of the essential function of the public body” as a trump card to ignore the clear legislative mandate: “[i]n no case shall a search fee be charged when the release of records is in the public interest….” Only time will tell.
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