dissenting, with whom COMBS, J. joins:
16 I respectfully dissent. The majority opinion reports the facts that KellPro publishes records for county clerks in Oklahoma and collects a subscription fee for that service from patrons The contract between Rogers County and KellPro provides that electronic data remain the property of the county, but that KellPro retains its intellectual property rights to its software. Finally, the opinion reports that County Records, Inc., the plaintiff/appellee also provides land records to online subscribers, including county clerk records for all 77 counties in Oklahoma.
T17 County Records, Inc. seeks data in the form of electronic copies of land records from the Rogers County Clerk, including an electronic copy of the official tract index. In the Oklahoma Open Records Act, "data files created by or used with computer software" is included in the definition of a record.1 A tract index whether it is hand written or entered as data is an indispensible tool to research the land record in a county. It is the list of public documents filed on a tract of property, and includes deeds, mortgages, mineral leases and other documents that affect the specific property. This is an index providing access to books to locate and view the filed documents. Without a tract index it would be impossible to find documents for a specific piece of property. Our property system is dependent on these records being accurately kept by the county clerk and deputies, who make these documents available so the public can search land records. Maintaining and entering documents on the tract index is an integral part of the elected position of county clerk.
118 After the World Wide Web was invented in 1989,2 more and more people and businesses used the Internet to access electronic data. As a service to the public, the Rogers County Court Clerk contracted with KellPro to provide a county website and provide a search capacity for the records. The money for this service came from public funds and county deputies were paid by public funds to enter the documents of public records as data on computers paid for with public funds. KellPro provided the software they used.
19 I agree with the Court that KellPro should not be ordered to turn over their proprietary software to County Records, Inc. I cannot accept the majority view that the county clerk and her deputies, as public employees, can pay KellPro public funds to enter public records for KellPro's private use. KellPro then charges the public for subscriptions to access the public record it received from the labor of public employees. The majority opinion dismisses this private benefit to KellPro in a footnote by concluding the issue is not before the Court.
' 20 The majority opinion prevents County Records from obtaining the same information KellPro received because the Court has determined it "does not exist as a discrete electronic document that can be provided in electronic form." If KellPro is given the information at public expense, then County Records, Inc., or any other private entity should be able to acquire an electronic copy of the data and create its own computer software to search the public documents. The trial court found that the county clerk has the ability to produce those records; the issue was pricing.
121 Regarding the provision of the Open Records Act that states "the index shall not be copied or mechanically reproduced for the purpose of sale of the information," KellPro is currently making available public documents from data entered into its computers by public employees, for its own profit. County Records, Inc. wishes to have access to the same public data and compete. I do not believe such access constitutes a sale of information under the Act. That provision in the Open Records Act, 51 0.98.2011, 244.5 (4), was enacted in 1986 3 and does not appear to contemplate the widespread use of the internet to access public information. The enact*870ment of that language preceded the introduction of the World Wide Web, and allowing public access to public documents is clearly compatible with the public policy and purpose of the Open Records Act.4 Making those public documents available on the internet should be allowed and encouraged. Title 68 O.9.2011, 2864(f) already requires the county assessor to provide property data in an electronic or digital format for a fee, which is set by the State Board of Equalization.
22 I would remand this case and require KellPro to be added as a party since they appear to be the only company presently allowed to provide this public information. Public records are still public even though they are inputted into KellPro software. The district court should be able to fashion a remedy to resolve this problem and at a fair price.
. 51 0.8.2011, 244.3 (1)
. http://www accessed June 12, 2012.
. 1986 Okla.Sess.Laws, ch. 213, § 1.
. 51 0.5.2011, 24A.2.