Can an Arkansas circuit clerk force a title insurance agency to use a third-party online portal (and pay a fee) to access real-property records, instead of obtaining them directly from the courthouse?
Plain-English summary
State Representative Les Warren asked whether circuit clerks (and other public officials maintaining real-property records) can route title insurance agencies through third-party software vendors and charge for access, or whether the agencies have a right to direct, free access at the office.
Attorney General Tim Griffin's bottom line: title insurance agencies have a right to direct, free access in the office. The third-party online portal is an additional convenience, not a replacement.
The opinion answers four questions:
1. Can the office require third-party-portal access? Yes for online access, no for in-person. Section 23-103-417 guarantees title insurance agencies "free access to the instruments of record affecting real property filed in any city, county, or state office." "Access" is statutorily defined as "possession of an instrument sufficient to mechanically reproduce the instrument in the office where the instrument is filed." Mechanical reproduction in the office cannot be conditioned on using a portal or paying a fee. Out-of-office electronic access through a third-party provider is a different thing and can be charged for.
2. Can the office or third-party provider charge a fee? Section 23-103-417(b) says "no fee shall be charged for providing access." The narrow statutory definition of access (in-office mechanical reproduction) means no fee for in-office work. The third-party provider can charge for online access outside the office.
3. Can a third-party watermark electronic copies as "unofficial"? Arkansas law does not regulate the labeling. The accuracy of the label depends on whether the document is in fact an official record. The AG declined to give a categorical answer.
4. Can the third-party restrict use of the electronic copies? Yes, unless the third-party's contract with the government office prohibits it. The agency can still get in-office free access regardless.
A separate provision, A.C.A. § 14-14-111, governs county officials' contracts with electronic record providers. That statute does not change the access-and-fee rules under § 23-103-417 but it does require county officials to retain "complete administrative rights and complete access" to the records. The third-party provider cannot become the de facto custodian.
What this means for you
If you are a title insurance agent or runner
Based on this opinion, your right to walk into the courthouse and mechanically reproduce real-property records for free is preserved. If a circuit clerk's office tells you that all access is through a paid third-party portal, push back. Cite A.C.A. § 23-103-417 and this opinion. The office must let you copy records on-site without charging.
You may still find the third-party portal worth the cost for off-site convenience and search functionality. The opinion confirms third-party fees for that out-of-office access are lawful.
Watch for restrictive license terms on the portal. Read the third-party's terms of service, because the third-party can restrict reuse, even though the underlying records are public.
If you are a circuit clerk or county records custodian
Two parallel access channels:
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In-office, free. Title insurance agencies must be able to walk in, occupy reasonable space, use your equipment, take notes, and mechanically reproduce records during business hours, all for free. You cannot route them to a portal as the only access path.
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Online, third-party, fee-permissible. If you also offer online access through a third-party software provider, that vendor can charge for the convenience. Make sure your contract preserves your "complete administrative rights" under A.C.A. § 14-14-111(c)(1) so the vendor never becomes the de facto records custodian.
The watermarking question is yours to decide with your vendor. State law does not regulate it. But avoid labeling actual official records as "unofficial" if you would not say the same thing in court.
If you are a third-party software vendor providing electronic record access to county offices
Your fee-charging is permitted for out-of-office electronic access. Your terms of service can restrict reuse of the electronic copies, subject to your contract with the county. But your contract cannot effectively replace the county's in-office free-access obligation.
The AG flagged that county officials must retain complete administrative rights. Audit your customer contracts to confirm the county can always access, alter, copy, download, extract, read, record, upload, write, or otherwise manipulate and maintain the records.
If you are a real estate attorney closing a transaction
Two takeaways:
- If your title work depends on a county portal that has been billing per-page, your client may be paying for access that should be free in-person. Decide if a runner picking up records from the courthouse is more cost-effective.
- "Unofficial" watermarks on portal-downloaded records are common and not regulated by state law. Whether to rely on a watermarked copy versus an actual stamped certified copy is a fact-specific decision.
Common questions
Q: I am a title agent. The clerk's office told me there is no public counter access; everything goes through their online portal. Is that legal?
A: Not under this opinion. The clerk must allow you to access and mechanically reproduce records in the office for free under A.C.A. § 23-103-417. The portal is an additional channel, not the only one.
Q: Can the clerk charge me a per-page copy fee at the public counter?
A: For "access" as defined (mechanical reproduction in the office), no. The statute says "no fee shall be charged for providing access." Whether a fee for using the office's printer beyond mere mechanical reproduction is allowed is unclear; bring your own equipment or use the office's based on local practice.
Q: The third-party portal charges $1 per page download. Is that legal?
A: For out-of-office electronic access, yes. The opinion treats portal access as a separate service that the third-party can charge for. Your in-office free access right is unaffected.
Q: Can the third-party prevent me from using portal copies in commercial title work?
A: Possibly, depending on the third-party's terms of service. Your remedy is to use the in-office free copies instead, where no such restriction applies (assuming the underlying records are public records).
Q: Are these rules just for title insurance, or do they apply to anyone?
A: Section 23-103-417 specifically protects title insurance agencies (and title insurance agents and persons affiliated with title agencies). Other members of the public have access rights under the Arkansas Freedom of Information Act, which the AG noted but did not analyze in this opinion.
Q: Can a county scan all its records, get rid of the paper, and require everyone to use the third-party portal?
A: A.C.A. § 14-14-111(c)(2) authorizes county officials to maintain records electronically. But the title-insurance-agency statute requires "in the office" access. If a county goes fully electronic, it would still need to provide in-office access (e.g., a public computer terminal) for title insurance agencies to mechanically reproduce records for free.
Background and statutory framework
A.C.A. § 23-103-417 carves out specific access rights for title insurance agencies, agents, and affiliated persons:
- Subsection (a)(1): "free access" to instruments of record affecting real property filed in any city, county, or state office.
- Subsection (a)(2): reasonable space, use of equipment, ability to make memoranda, notations, copies, and to compile, post, copy, and maintain books, records, and indices.
- Subsection (b): no fee for providing access.
- Subsection (c): "access" defined as "possession of an instrument sufficient to mechanically reproduce the instrument in the office where the instrument is filed."
A.C.A. § 14-14-111 governs county officials' authority to contract with third-party electronic record providers:
- Subsection (b)(1): definition of "administrative rights" as the permissions and powers (including without limitation) to access, alter, copy, download, extract, read, record, upload, write, or otherwise manipulate and maintain records.
- Subsection (c)(1): county officials must retain "complete administrative rights and complete access to all the records."
- Subsection (c)(2): authorizes contracting with a third-party "electronic record provider" to maintain records.
The AG used Van Buren v. United States, 593 U.S. 374 (2021), for the meaning of "access" in a computational context (entering a system or part of a system). For statutory definition of "complete" and "open access," the AG cited Black's Law Dictionary and the American Heritage Dictionary.
Citations and references
Statutes:
- A.C.A. § 23-103-417 (title insurance agency access)
- A.C.A. § 14-14-111 (county officials and electronic record providers)
Cases:
- Van Buren v. United States, 593 U.S. 374, 141 S. Ct. 1648 (2021) (computational meaning of "access")
Prior AG opinions:
- Ark. Att'y Gen. Op. 2012-107 (interpretation of "administrative rights" under § 14-14-111(b)(1))
Source
Original opinion text
Opinion No. 2024-048
June 5, 2024
The Honorable Les A. Warren
State Representative
Post Office Box 22900
Hot Springs, Arkansas 71903
Dear Representative Warren:
I am writing in response to your request for my opinion on questions concerning the duties of circuit clerks to provide licensed title insurance agencies "free access" to "instruments of record affecting real property."
You indicate that some circuit clerks have entered into contracts with third-party software and service providers ("third-party providers") "to assist with digitizing public records, including instruments affecting real property, as well as making such records accessible via online portals managed or controlled by third-party providers."
You ask the following questions, some of which I have paraphrased:
1. Under A.C.A. § 23-103-417, title insurance agencies have certain rights to access and copy instruments of record affecting real property. Under A.C.A. § 14-14-111, "county official[s]" who are "required by law to maintain public records" must "retain complete administrative rights and complete access to all the records." You ask if under these statutes a circuit clerk or other public official may use a third-party provider through which a licensed title insurance agency must obtain or negotiate access to public records, rather than allowing the agency to obtain them directly from the circuit clerk.
Brief answer: Circuit clerks and other county and state officials must allow title insurance agencies to mechanically reproduce instruments of record for free in the office where the instrument is filed. If the official also chooses to provide out-of-office electronic access to instruments of record through a third-party provider, the third-party provider may charge a fee for that out-of-office access.
2. May the government official or third-party provider charge a fee to the licensed title insurance agency for it to search the public records and make a copy of any instrument that has been filed of record?
Brief answer: See my brief answer to Question 1.
3. Is it permissible for any third-party provider handling instruments in the public record under a contract with a government official to place a watermark on those instruments by labeling the records as "unofficial" or otherwise as something less than official public records?
Brief answer: If a third-party provider is storing or handling documents that are in fact "instruments of record affecting real property filed in any city, county, or state office," instead of copies, it would be inaccurate to label those documents as "unofficial" or "less than official public records." I have found no law, however, regulating the labeling of such documents as official versus unofficial.
4. Is it permissible for the third-party provider to otherwise attempt to restrict the use of those documents by a licensed title insurance agency?
Brief answer: Yes, if the title insurance agency otherwise has "free access" to the public records in the official's office.
DISCUSSION
Question 1: May a circuit clerk or other public official use a third-party provider through which a licensed title insurance agency must obtain or negotiate access to public records, rather than allowing the agency to obtain them directly from the circuit clerk?
1. Access under A.C.A. § 23-103-417. Under A.C.A. § 23-103-417(a)(1), "a title insurance agency" must "[h]ave free access to the instruments of record affecting real property filed in any city, county, or state office." The statute defines "access" as "possession of an instrument sufficient to mechanically reproduce the instrument in the office where the instrument is filed."
The title insurance agency must also "[b]e permitted to…[o]ccupy reasonable space, use equipment, and make memoranda, notations, and copies of instruments of record during the business hours of the city, county, or state office; and…[c]ompile, post, copy, and maintain books, records, and indices."
Accordingly, A.C.A. § 23-103-417 requires the appropriate city, county, and state officials to allow title insurance agencies to "free[ly]" "mechanically reproduce" instruments of record "in the office where the instrument is filed" and to "occupy reasonable space, use equipment," and take notes.
Arkansas Code § 23-103-417 does not require "free access" to instruments of record that are kept or maintained electronically outside of the office. But even if a government entity makes these records available electronically, it must also provide "free access" on-site, "in the office where the instrument is filed."
In short, it is my opinion that, under A.C.A. § 23-103-417, a "city, county, or state office" must provide a title insurance agency the in-person ability to mechanically reproduce for free instruments of record filed in that office, even if the city, county, or state office also provides out-of-office access to those same records.
2. Access under A.C.A. § 14-14-111. Under A.C.A. § 14-14-111(c)(2), a county official may contract with a third-party "electronic record provider" to maintain records. If the county official "chooses to keep and maintain the records in an electronic record" and those records are "required by law to [be] maintain[ed]," the official "shall retain complete administrative rights and complete access to all the records." "Administrative rights" is defined as the "permissions and powers, including without limitation the permissions and powers to access, alter, copy, download, extract, read, record, upload, write, or otherwise manipulate and maintain records kept by a county official." Retaining administrative rights allows county officials to have "complete care, custody, and control of the…records" and "prevent[s] a [third-party] provider…from becoming the de facto custodian of the records."
This means that, under A.C.A. § 14-14-111, a county circuit clerk can contract with a third-party provider if the circuit clerk always retains "administrative rights" over the records and "complete access to all the records." Arkansas Code § 14-14-111 does not, however, regulate the interactions between county clerks and a title insurance agency.
Question 2: May the government official or third-party provider charge a fee to the licensed title insurance agency for it to search the public records and make a copy of any instrument that has been placed of record?
No one may charge a fee "for providing access" to "any instrument filed of record in a city, county, or state office." Again, the word "access" is narrowly defined in the statute: "possession of an instrument sufficient to mechanically reproduce the instrument [of record] in the office where the instrument is filed." So a government entity cannot charge a fee for allowing a title insurance agency "to mechanically reproduce" the instrument of record if the agency physically seeks to mechanically reproduce the instrument in the office where that instrument is filed during business hours. But, if that same government entity also keeps or compiles instruments of record electronically through a third-party provider, the statutes do not prohibit charges for reviewing, retrieving, or printing those electronic documents when the title insurance agency does not seek the instrument "in the office where the instrument is filed."
Question 3: Is it permissible for any third-party provider handling instruments in the public record pursuant to a contract with a government official to place a watermark on those instruments labeling the records as "unofficial" or otherwise as something less than official public records?
Arkansas law does not regulate the labeling of "instruments of record affecting real property filed in any city, county, or state office" as "official" versus "unofficial." Nor does Arkansas law prohibit a third-party from labeling a copy of an instrument of record as "unofficial." Whether the labeling of an instrument as "official" or "unofficial" is accurate depends on if the instrument is indeed an official record. Generally, a record is "official" when it is "[a]uthorized or approved by a proper authority." But I lack the information to definitively conclude whether a particular instrument may be accurately watermarked as "unofficial," instead of "official."
Question 4: Is it permissible for the third-party provider to otherwise attempt to restrict the use of those documents by a licensed title insurance agency?
Unless the third-party provider's contract with the government official or entity provides otherwise, the third-party provider could restrict the use of "instruments of record affecting real property" in its possession. Nevertheless, the public official must allow "free access," as explained above, to title insurance agencies.
Assistant Attorney General William R. Olson prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General