The Honorable John F. Gibson, Jr. Prosecuting Attorney P.O. Box 573 Monticello, AR 71655
This is in response to your request for an opinion on the following questions:
1. Is a circuit clerk required to conduct lien searches upon the request of an interested party?
2. If a circuit clerk is either required or authorized to do a lien search, can he or she charge a fee, and how much?
Although a conclusive response to your first question would require consideration of the particular type of lien in question, it is my opinion that the answer is, generally, "no." We find no provision with general application mandating lien searches by the clerk.
Please note that I have enclosed a copy Attorney General Opinion Number 87-262 which addresses, specifically, the lien of a self-service storage facility operator. (Act 576 of 1987 is now codified at A.C.A. 18-16-401, et seq. (Supp. 1987)). It was concluded therein that this act does not require a record search by the circuit clerk in order to identify any lienholders.
It should be noted, however, that the clerk must make the pertinent records available for inspection, in accordance with the Arkansas Freedom of Information Act ("FOIA".) This act states that public records "shall be open to inspection and copying," and that "[r]easonable access to public records and reasonable comforts and facilities for the full exercise of the right to inspect and copy such records shall not be denied to any citizen." A.C.A. 25-19-105(a) and (d) (Supp. 1987).
In response to your second question, we find no authority for charging a fee if the clerk decides to conduct lien searches notwithstanding the fact that there is no such general requirement in this regard. It should be recognized, moreover, that complying with requests for records under the FOIA is a statutory duty of a custodian of the records. We have therefore previously concluded that a custodian of the records may not charge a requestor a fee for the time spent satisfying a FOIA request. A.G. Op. No. 88-354, copy enclosed.
We have also stated, however, in connection with copying costs, that the records custodian may charge a reasonable fee (not to exceed actual costs) for photocopies and other forms of record reproduction. Op. No. 88-354.
The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elisabeth A. Walker.