Are the deed, lien, and plat images and the index data on Georgia's statewide superior court clerks' database open under the Open Records Act, and can the Authority still charge fees for them?

Plain-English summary

The Georgia Superior Court Clerks' Cooperative Authority operates the statewide system that holds digital images of every deed, lien, and plat filed in any superior court clerk's office, along with an index database of the underlying information. After the General Assembly amended the Open Records Act in 2012 (HB 397), the Authority asked the Attorney General whether the images and index data had to be turned over in response to Open Records Act requests, and if so, what fees applied.

The AG concluded that both the images and the index data were "public records" under the new O.C.G.A. § 50-18-70(b)(2). The definition expressly reached "data" and "data fields," and the Authority was statutorily required to maintain the system, so the records were prepared and maintained by an agency in performance of a service. The Open Records Act therefore required disclosure.

The fee question was resolved by reading two statutes together. The general Open Records Act fee provision, O.C.G.A. § 50-18-71(c)(1), capped charges at the prorated salary of the lowest-paid qualified employee in most cases, but it expressly carved out an exception for fees "specifically authorized or otherwise prescribed by law." A separate statute, O.C.G.A. § 15-6-94(d)(6), gave the Authority express power to set and collect fees for data and media that it furnished to any individual or private entity. Because that fee power was specifically authorized by law, the Authority could continue to charge its statutory fee schedule when responding to Open Records Act requests for the images and index data.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did this mean anyone could request the index data for free?
A: No. The opinion concluded the index data was a public record that had to be produced, but the Authority could charge its statutory fees. It did not give anyone a free path to bulk index data.

Q: Why did the Authority's fee schedule survive the Open Records Act's general cap on fees?
A: The Open Records Act itself said that "[w]here fees for certified copies or other copies or records are specifically authorized or otherwise prescribed by law, such specific fee shall apply." O.C.G.A. § 15-6-94(d)(6) was a specific statutory grant of fee authority, so the cap did not override it.

Q: Was this opinion about bulk sale of the database to private resellers?
A: No. The opinion addressed Open Records Act requests for deed, lien, and plat images and index data. A different question, addressed in 2006 Op. Att'y Gen. 2006-5, dealt with whether the Authority could contract for the bulk sale of real estate images.

Q: Where did the Authority's express fee power come from?
A: O.C.G.A. § 15-6-94(d)(6) authorized the Authority to "fix and collect fees and charges for data, media, and incidental services furnished by it to any individual or private entity," subject to filing the proposed fee schedule with the Clerk of the House of Representatives and the Secretary of State on a recurring annual basis.

Q: Did the Open Records Act amendment in HB 397 change the answer?
A: HB 397, effective April 17, 2012, broadened the definition of "public record" to expressly include data and data fields. The opinion read this as confirming that both the images and the index data were within the scope of the Act. The pre-existing fee carve-out for statutorily-authorized fees survived the amendment.

Background and statutory framework

The Georgia Superior Court Clerks' Cooperative Authority was created to operate a statewide automated information system for real and personal property records. Each county clerk submits filings to the Authority's system, which makes images and an index searchable across all 159 counties. Without that aggregation, a title searcher would have had to query each county individually.

When the General Assembly rewrote the Open Records Act in HB 397, the new definition of "public record" in § 50-18-70(b)(2) expressly captured electronic records, data, and data fields prepared and maintained by an agency. That broad sweep raised the question of whether the Authority's database would be subject to the same disclosure regime as paper files in a courthouse.

The Authority is an instrumentality of the state with only the powers expressly conferred or necessarily implied. The opinion's footnote 2 cited a long line of cases and 1996 Op. Att'y Gen. 96-11 for that proposition. Express fee authority in § 15-6-94(d)(6) gave the Authority a specific statutory basis to charge for data, which the Open Records Act's own carve-out preserved.

Citations and references

Statutes:
- O.C.G.A. § 15-6-94 (Authority powers, including fee authority)
- O.C.G.A. § 15-6-97 (statewide uniform automated information system)
- O.C.G.A. § 50-18-70 (Open Records Act definitions)
- O.C.G.A. § 50-18-71 (records open for inspection; fee provisions)

Cases:
- Powell v. VonCanon, 219 Ga. App. 840 (1996) (Open Records Act fees specifically authorized by other law)
- Bentley v. State Bd. of Med. Exam'rs, 152 Ga. 836 (1922) (state instrumentalities have only expressly granted powers)

Source

• Landing page: https://law.georgia.gov/opinions/2012-5

Original opinion text

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).