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AGO Opinion 97052

1997 Neb. Laws LB 590; Amount of Fees for Electronic Access to Public Records; Necessity for Public Hearings on Such Fees
Opinion 97052

DATE: October 7, 1997

SUBJECT: 1997 Neb. Laws LB 590; Amount of Fees for Electronic Access to Public Records; Necessity for Public Hearings on Such Fees

REQUESTED BY: Scott Moore, Nebraska Secretary of State

Chairman, State Records Board

WRITTEN BY: Don Stenberg, Attorney General

Dale A. Comer, Assistant Attorney General




Under 1997 Neb. Laws LB 590, § 8, the State Records Board (the

"Board") "may establish reasonable fees for electronic access to

public records through the [electronic] gateway." Under § 9 of

that same bill, "[a]ny state agency desiring to enter into an

agreement to or otherwise provide electronic access to public

records through a gateway for a fee shall make a written request

for approval to the board." As we understand it from the materials

you provided to us, the Department of Motor Vehicles (the

"Department") has recently presented the Board with a request to

charge fees for electronic access to certain motor vehicle title

registration and lien information involving both fees for batch

processing of information requests and individual interactive

searches. That request from the Department has prompted you to

pose two questions to us, both of which are discussed below.




1. Permissible Fees Under LB 590.




Neb. Rev. Stat. § 60-308 (Cum. Supp. 1996) deals with certain

motor vehicle title records and provides, as is pertinent:

The Department of Motor Vehicles shall keep a record of

each vehicle registered, alphabetically by name of the

owner, with cross reference in each instance to the

registration number assigned to such vehicle. .

. . .




The department shall furnish a copy of the record of a

registered or titled vehicle to any applicant after

receiving from the applicant the name on the

registration, the license plate number, the vehicle

identification number, or the title number of a vehicle.

A fee of one dollar shall be charged for the copy.




The Department has now submitted an application to the Board which

proposes a total fee of $2.00 for individual motor vehicle record

searches through the electronic or internet access to those

records, based upon the statutory fee of $1.00 set out in § 60-308

and an additional $1.00 fee for electronic access. You are

concerned that this proposal is in contravention of that portion of

§ 8 of LB 590 which provides that "[t]he fees [for electronic

access to public records through the electronic gateway] shall not

exceed the statutory fee for distribution of the public records in

other forms." Accordingly, you have posed the following question

to us:




May the total fee for electronic access to information

exceed the statutory fee for accessing the record in

other forms where such a fee exists? Or in this

particular case is the Department of Motor Vehicles

limited to charging $1.00 total for the record (the fee

set in statute) or may they charge $2.00 total, $1.00 for

the statutory fee plus an electronic access fee of $1.00,

which does not exceed the statutory fee?




In Nebraska, in the absence of anything indicating to the

contrary, statutory language should be given its plain and ordinary

meaning, and when the words of a statute are plain and unambiguous,

no interpretation is necessary to ascertain their meaning. Van

Ackeren v. Nebraska State Board of Parole, 251 Neb. 477, 558 N.W.2d

48 (1997). As noted above, 1997 Neb. Laws LB 590, § 8 states, in

relation to the fees which may be charged for electronic access to

public records, that "[t]he fees [for electronic access to public

records through the electronic gateway] shall not exceed the

statutory fee for distribution of the public records in other

forms." It seems to us that this language is plain and

unambiguous, and must be given its plain and ordinary meaning. As

a result, since § 60-308 provides for a fee of $1.00 for a hard

copy of the motor vehicle title records at issue, we believe that,

under § 8 of LB 590, the maximum fee for electronic access to that

same information is also one dollar. The $2.00 fee proposed by the

Department is, therefore, impermissible under § 8 of LB 590.




Our conclusion is amply supported by the legislative history

of LB 590. The language at issue from § 8 of LB 590 was added to

the original bill presented out of committee as a result of

Amendment No. FA164 proposed by Senator Coordsen. At the beginning

of the floor discussion on that amendment, Senator Coordsen stated:




The committee amendment [which brings this bill to the

floor] provides that the [state records] board may charge

reasonable fees for electronic access to public

information through the [electronic] gateway. Now I

happen to believe that what it is referencing to or what

we ought to be referencing in that are those cases in

which there is not an access fee established, an

information fee established in statute. Where there is

a fee established in statute, by either definition or

implied by allowing a mechanism, that that (sic) fee

ought to be the same to the public without regard to the

method that the member of the public receives the

information, whether its hard copy, whether it's coming

into an office, whether it's mailing in a request asking

for something to come back, or if accessed through what

is currently the Nebraks@ Online site, that may, in the

future, be some other site, through a home or business

computer and then printed off on your own . . . on your

own printer in your office or home, that fee where there

is a legislative determined fee ought to be the same and

we ought not to raise that fee for any other . . . by any

amount for different forms of access.




Floor Debate on LB 590, 95th Neb. Leg., 1st Sess. 4721 (April 21,

1997) (Statement of Senator Coordsen) (emphasis added).




Later in the discussion on the amendment, Senator Coordsen

stated:




So it's my belief that the additional [electronic access

fee] requirement here is somewhat loading up on the

system, and in drafting I simply do not believe that an

additional fee, more than what we've ever otherwise

provided for, is necessary. That any place that there is

a statutory fee established by the Legislature for

information or forms or pyramids, or whatever, that those

fees stay the same as they are statutorily without regard

to the method of providing that service.




Floor Debate on LB 590, 95th Neb. Leg., 1st Sess. 4722 (April 21,

1997) (Statement of Senator Coordsen) (emphasis added).




Finally, in his closing summary on the amendment, Senator

Coordsen stated:




It's my belief that this particular language [from the

form of LB 590 submitted by committee] that I'm striking

is somewhat of a holdover from the earlier idea, and from

the green copy where I think it was taken out in most

other cases, and that . . . where there's a statutory fee

established, that would be the charge, no matter what the

means of accessing that information was.




Floor Debate on LB 590, 95th Neb. Leg., 1st Sess. 4738 (April 21,

1997) (Statement of Senator Coordsen) (emphasis added). As a

result, we believe that the maximum fee which may be charged for

electronic access to the motor vehicle title information at issue

is $1.00, in light of the pertinent portions of LB 590 and § 60-

308.




2. Necessity for a Public Hearing on Fee Determinations.




Your second question goes to the public hearing requirements

which are set out in § 9 of LB 590 pertaining to a request for

approval of a fee for electronic access to public records. You

ask:




If there is a statutory fee set for a record and an

agency proposes to charge that fee for electronic access

to the record does the State Records Board still have to

have a hearing and make a finding that the fee is

"reasonable" or is there a presumption that the fee is

reasonable if it is at or less than the statutory fee?




The portion of 1997 Neb. Laws LB 590, § 9 which is pertinent

to your inquiry states:




Any state agency desiring to enter into an agreement to

or otherwise provide electronic access to public records

through a gateway for a fee shall make a written request

for approval to the [State Records] board. . . .

The board shall take action on such request in accordance

with section 8 of this act and after a public hearing

within thirty days after receipt.




(Emphasis added).




Two rules of statutory construction apply to your second

question. First, as noted above, statutory language should

ordinarily be given its plain and ordinary meaning. Van Ackeren v.

Nebraska State Board of Parole, supra. Second, the word "shall" in

a statute is considered mandatory and inconsistent with the idea of

discretion. Moyer v. Douglas & Lomanson Co., 212 Neb. 680, 325

N.W.2d 648 (1982); Neb. Rev. Stat. § 49-802 (1993).




Even though we might agree with the premise implied in your

question that there seems to be little need for a public hearing on

a fee proposal when that fee is at or less than the fee established

by statute, the language in § 9 of LB 590 pertaining to the

necessity for a public hearing seems clear. Moreover, since that

statute provides that the board "shall" take action on fee

applications after a public hearing, and no specific disposition is

made for fee applications where there is a maximum fee already set

by statute, we believe that the Board should proceed with a public

hearing in each instance where an agency requests the Board to set

a fee for electronic access to public records.




Sincerely yours,




DON STENBERG

Attorney General


Dale A. Comer

Assistant Attorney General