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Official Opinion 2006-5

Official Opinion 2006-5

October 16, 2006
To: 

Executive Director,
Georgia Superior Court Clerks Cooperative Authority

Re: 

The Georgia Superior Court Clerks Cooperative Authority is not empowered to contract to sell real estate images that are in its possession that are records of the clerks of superior court.

This responds to your request for my official opinion on whether the Georgia Superior Court Clerks’ Cooperative Authority (the “Authority”) is empowered to contract to sell real estate images that are in its possession that are records of the clerks of superior court.

Pursuant to O.C.G.A. § 15-6-97, the Authority operates an information system for real and personal property records (the “system”). The Authority has indicated that the system primarily includes information regarding real property records filed with the clerks of superior court in Georgia. The system is accessible through the Authority’s website. One of the enhancements provided to the system is the availability of images of real property records from the offices of many of the clerks of superior court in Georgia. Individual clerks of superior court determine whether to make images of instruments available through the system. Where a clerk determines to allow the Authority to make images available through the system, users of the system that choose to print images are charged a per page fee. The fees collected by the Authority for printed images are then paid to the appropriate clerks of superior court. The Authority does not retain any of the fees related to printed images. The Authority has indicated that clerks of superior court have allowed the Authority to make images available in exchange for the revenues from printing. The Authority does not generally have formal written agreements with clerks of superior court regarding making images available through the system. The Authority has indicated that, from time to time, parties have requested that the Authority contract to sell in bulk the images of real property instruments that are accessible by users of the system. In some cases, these requests relate to the records of one county and in others they relate to multiple counties.

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). 1996 Op. Att’y Gen. 96-11 concludes that the Authority is not empowered to undertake certain responsibilities regarding notaries public where those responsibilities were statutorily conferred on the Secretary of State. In doing so, the opinion analyzes the issue as follows: The enabling legislation for the Clerks’ Authority does not expressly authorize it to assume the responsibilities for maintaining records pertaining to notaries public. While it may be possible to infer such authority based upon the language of O.C.G.A. § 15 6 94(a)(3), an implication of this nature would not be necessary in light of the fact that the General Assembly has already vested such responsibilities upon the Secretary of State.1 O.C.G.A. § 15-6-94(d)(2) empowers the Authority “[t]o make and execute contracts, lease agreements, and all other instruments necessary or convenient to exercise the powers of the authority or to further the public purpose for which the authority is created.” Specifically related to the system for real and personal property information, the Authority is expressly empowered to “contract with the clerks of superior courts and any other parties that the authority deems necessary.” O.C.G.A. § 15-6-97(a). O.C.G.A. § 15-6-94(a) provides in relevant part that [t]he authority shall be the sole owner of its compiled and developed information developed through any function performed or any program or system administered on behalf of the authority. For the purposes of this subsection the authority shall not be considered the sole owner of information developed pursuant to Code Section 15-6-97.1 . . . .2 O.C.G.A. § 15-6-96 provides in relevant part as follows: The clerk of the superior court is the custodian of the records of his or her office. Any contract to distribute, sell, or otherwise market records or computer generated data of the office of the clerk of the superior court for profit shall be made by the clerk of the superior court. (Emphasis added.) In Powell v. VonCanon, 219 Ga. App. 840 (1996), the Georgia Court of Appeals concluded that “O.C.G.A. § 15-6-96 prevails over O.C.G.A. § 50 18 71 and any other part of the Open Records Act to the extent they conflict with the ability of superior court clerks to contract to market records of their offices for profit.” 219 Ga. App. at 842. If the Authority were empowered to sell the real estate instrument images in its possession, it seems that it would conflict with the power granted to the clerks of superior court “to distribute, sell or otherwise market records . . . for profit” in O.C.G.A. § 15-6-96. While the Authority has two statutory powers to contract, including one specifically related to the real and personal property information system, the Authority does not have a specific express statutory power to contract to sell the images that are in its possession. Further, O.C.G.A. § 15 6 96 specifically provides that “[a]ny contract to distribute, sell, or otherwise market records or computer generated data of the office of the clerk of superior court for profit shall be made by the clerk of the superior court.” (Emphasis added.) Thus, as in the scenario addressed by 1996 Op. Att’y Gen. 96-11, the Authority does not have the power to contract to sell the images made available to it by the clerks of superior court. The implication of such a power on behalf of the Authority is not necessary in light of the clear grant of authority to the clerks of superior court.3

In summary, it is my official opinion that the Georgia Superior Court Clerks’ Cooperative Authority is not empowered to contract to sell real estate instrument images that are in its possession that are records of the clerks of superior court.

Prepared by:

W. Wright Banks, Jr.
Senior Assistant Attorney General


1 After 1996 Op. Att’y Gen. 96-11 was issued, the General Assembly transferred certain powers related to notary publics from the Secretary of State to the Authority. 1997 Ga. Laws 673.

2 O.C.G.A. § 15-6-97.1 relates to the development and operation of the civil case information system. One could argue that the express statement in O.C.G.A. § 15-6-94(a) indicating that the Authority does not own the information compiled pursuant to O.C.G.A. § 15-6-97.1 necessarily means that the Authority owns all other information that it compiles. In this regard, it is relevant to consider that the instrument images that the Authority makes available related to the real and personal property system are made available at the option of the clerks of superior court and the Authority with the printing fees being paid to the appropriate clerk of superior court. O.C.G.A. § 15-6-97(a) does not expressly require that images be made available as part of the “uniform automated information system for real and personal property records” and they are not made available for all counties or for all time periods for which information is included in the system.

3 This conclusion is consistent with the arrangement described by the Authority pursuant to which the Authority and the clerks of superior court have the understanding that images made available to the Authority would be offered for viewing and printing on the Authority’s system and that the proceeds from the printing charges would be made available to the clerks of superior court without any amounts being retained by the Authority.