The opinion
Dear Honorable Johnson,
The Attorney General is in receipt of your request for an opinion wherein you ask, in effect, the following questions:
1. Under recently enacted legislation, may a county clerk who releases information by telephone, discriminately charge "out of county callers" and not charge "in county callers?"
2. Can a county clerk arbitrarily render information to only "in county callers" and not to "out of county callers?"
Your request seeks an interpretation of the effect of recent legislation allowing the release of information over the telephone by county clerks and for authorization of fees to be charged for such information given. The specific provision amends 12A O.S. 9-405 (1978) and provides in pertinent part:
"A county clerk may release over the telephone any information requested from files that are open to public inspection within the county clerk's office. There may be a fee not to exceed three dollars ($3.00) for each individual phone request answered over the telephone . . ." Laws 1979, c. 273 4.
Under prior case law, as well as Attorney General's Opinion 73-316, county clerks have been classified as public officers. See Board of County Commissioners of Creek County v. Bruce, 51 Okla. 541 152 P. 125
(1915). As such, they possess only that authority which is conferred upon them by statute. See Board of County Commissioners of Oklahoma County v. Oklahoma City, Okla. 484 P.2d 882 (1971).
The legislation gives the county clerks the discretion to determine whether to give certain information over the telephone. However, the clerks must not then adopt a discriminatory policy as to who will be given the information and how much they will be charged. See Hennessey v. Independent School District No. 4, Lincoln City, Okla. 552 P.2d 1141
(1976). The only discretion to be exercised by the clerks is whether to give out information over the telephone. If the clerk should decide to give out such information by phone, then he may set a price of not more than three dollars ($3.00) on the service. Once the decision is made to release information by telephone and fees are established, information at the fixed fee must be released to all callers.
It is, therefore, the official opinion of the Attorney General that county clerks may not discriminate between in county and out-of-county callers regarding the release of or fees for information. The clerk's discretion under the statute extends only to the decision of whether to give out information to callers at all. Should the clerk decide to render such information, the clerk may set a price for such services not to exceed $3.00. Once the fees are established, they become fixed and must apply uniformly to all callers .
JAN ERIC CARTWRIGHT, ATTORNEY GENERAL OF OKLAHOMA
KAY HARLEY JACOBS, ASSISTANT ATTORNEY GENERAL