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Question Submitted by: The Honorable Stratton Taylor, Oklahoma State Senate
1984 OK AG 119
Oklahoma Attorney General
Cite as: 1984 OK AG 119, __ __
¶0 The Attorney General has received your request for an official opinion asking:
“1. Is the jail register (where bookings of individuals are kept) considered as public information?;
“2. Is the police blotter of a police station considered as public information? And;
“3. Is the radio log in a police station considered as public information?”
¶2 We are assuming that the term “public information” as used in your opinion request means records open for public inspection as provided in 51 O.S. 24 (1981). This statute states:
“It is hereby made the duty of every public official of the State of Oklahoma, and of its subdivisions, who are required by law to keep public records pertaining to their said offices, to keep the same open for public inspection for proper purposes, at proper times and in proper manner, to the citizens and taxpayers of this state, and its subdivisions, during all business hours of the day; provided, however, the provisions of this act shall not apply to income tax returns filed with the Oklahoma Tax Commission, or other records required by law to be kept secret.”
¶3 Two recent cases provide an understanding of this statute. In State ex rel. Cartwright v. Oklahoma Industries Authority, 629 P.2d 1244 (Okl. 1981), the Oklahoma Supreme Court examined this general statute in conjunction with a statute requiring public trusts to keep records of the trusts and minutes of the meetings [60 O.S. 178(d) (1981)]. The Court wrote:
“. . . Nothing in the statutes indicates a legislative intent to limit the scope of the public’s scrutiny. In including the word ‘records’ within the statute, the Legislature sought not to limit the word by defining it. The absence of a definition does not, however, license the courts of this State to narrowly construe ‘records’ as used in the statute, as such a narrow construction would be at odds with the legislative policy behind the requirement that public trusts maintain written records and keep them open and available to public inspection.” Id. at 1247.
¶4 Continuing, the Court stated:
“. . . Writings coming into the hands of public officers in connection with their official functions should, therefore, be assessable to members of the public so that the public will have an opportunity to determine whether those who have been entrusted with the affairs of the government are honestly, faithfully, and competently performing their duties as public servants.
* * *
“. . . we find that the purposes to be served by requiring that the public have access to records of public trusts are broad, and the scope of that access should be correspondingly broad….” Id. at 1248.
¶5 In fact, the Court discussed the definition of record:
“As the term ‘record’ is defined to include a document, book, paper, Stanley J. Alexander, OBA #198photograph, microfilm, sound recording, or other material, regardless of physical form or characteristics, made or received in connection with a transaction of official business, and as the statute before us shows no intent to use the word ‘record’ in a different manner, we are compelled to hold that the Legislature intended that such a broad definition be encompassed within 60 O.S. 178(d).” Id. at 1248.
¶6 More importantly, the Court concluded that:
“In point of fact, like record-keeping duties have been imposed upon every public official of the State since 1943, when the Legislature enacted 1 O.S. 24 . . .” (Emphasis added). Id. at 1249.
¶7 This interpretation of 51 O.S. 24 (1981) in the Cartwright case is to be read in conjunction with the examination of this statute in Oklahoma City News Broadcasters Association Inc., etal. v. Nigh, etal., 683 P.2d 72 (Okl. 1984). In that case the Oklahoma Supreme Court stated:
“The purpose and intent of the Open Records Law is to permit public inspection ‘for proper purposes’ and during business hours of those records which are required by law to be kept by public officials and which pertain to their offices. The Act does not authorize public inspection of any and all writings made or preserved by public officials. Although similar statutes of other states may be more flexible — such as, for example, the statute of Oregon discussed in MacEwan v. Holm, 226 Or.27, 359 P.2d 413,85 ALR2d 1086 (1961) and allow public inspection of not only those records which are required by law to be kept by the official but all writings which reflect the actions — or record of actions — of public officials, such is not the case with our Open Records Law ( 51 O.S. 24 (1981) ).
“In 66 Am Jur 2d Records and Recording Laws § 3, it is stated:
” ‘The mere fact that a writing is in the possession of a public officer or public agency does not make it a public record. It is the nature and purpose of the document, not the place where it is kept, which determines its status….’ ” (Emphasis added). Id. at 76.
¶8 The Oklahoma Supreme Court has addressed the issue of whether the arrest records and jail records of a city police department are subject to the Oklahoma Open Records Act in Oklahoma Publishing Company, et al. v. City of Moore, 682 P.2d 754 (Okl. 1984). However, the Court determined that the particular city’s municipal charter dictated that such information must be accessible to the public and added that state law does not irreconcilably conflict with the charter so as to preclude public inspection. The Court found no need to determine if Oklahoma state law required the opening of a city’s arrest records.
¶9 With this brief explanation of 51 O.S. 24 (1981), we now examine this statute in light of the specific information listed in your opinion request.
¶10 Title 57 O.S. 48 (1981) requires the sheriff, or other officers performing the duties of sheriff of each county in the state to keep a book called the jail register. This register contains:
“1. The name of each prisoner with the date and cause of his commitment, and the authority committing him; and, if committed for a criminal offense, a description of his person.
“2. The date or manner of his discharge or escape, as the case may be.
“3. What sickness, if any, has prevailed in the jail during the year, and if known what were the causes of such disease.
“4. Whether any or what labor has been performed by the prisoners, and the value thereof.
“5. The practice observed during the year of whitewashing and cleaning the occupied cells or apartments and the times and seasons of so doing.
“6. The habits of the prisoners as to personal cleanliness, diet and order.
“7. The means furnished prisoners of literary, moral and religious instruction, and of labor.
“8. All other matters required by said rules, or in the discretion of such sheriff deemed proper . . .”
¶11 Title 57 O.S. 49 (1981) requires the sheriff to return a copy of said register to the judge holding court at the opening of each session of the district court.
¶12 As provided in Oklahoma City News Broadcasters Assoc., supra, 51 O.S. 24 (1981) permits public inspection of records which are required by law to be kept by public officials and which pertain to their offices. Clearly, the jail register is required to be kept by law ( 57 O.S. 48 (1981) ) and thus, “open for public inspection, for proper purposes, at proper times and in proper manner, to the citizens and taxpayers of this state . . .” as provided in 51 O.S. 24 (1981).
¶13 The second part of your question asks if the police blotter of a police station is subject to the provisions of 51 O.S. 24 (1981). We find no statutory definition of “police blotter.” For purposes of this opinion we are defining “police blotter” as provided in the case of Houston Chronicle Pub. Co. v. City of Houston, 531 S.W.2d 177, 180 (Tex. Ct. Civ. App. 1975). Such a definition may not apply to each situation and each situation must be examined separately to see if the particular “police blotter” is covered by this definition.
¶14 As noted in Houston, a police blotter normally includes the arrestee’s name, social security number, alias, race, sex, age, occupation, address, I.D. number and physical condition. It may show by whom the arrest was made, the date and time of the arrest, booking information plus the charge(s) made and the court in which the charge(s) were filed. Details of the arrest may be given and this record may show any release or transfer, and bonding information.
¶15 We begin this discussion with the language used in Morrow v. District of Columbia, 417 F.2d 728, 741-742 (D.C.Cir. 1969), that “[T]he requirement that arrest books be open to the public is to prevent any ‘secret arrests,’ a concept odious to a democratic society….”
¶16 One can see that some of the information contained in the “police blotter” is required to be provided in the jail register. See, 57 O.S. 48 (1981). Thus, under the decision of Oklahoma City News Broadcasters, supra, such specific information is required by law to be kept by public officers and pertains to their offices and is subject to the provisions of the “Open Records Act,” 51 O.S. 24 (1981).
¶17 In the Houston case, supra, the Texas Court of Civil Appeals reviewed the Texas Open Records Act as it relates to similar information kept by the Houston Police Department. It is important to note in this regard that while a review of other jurisdictions offers helpful insight into which police records are “public records,” open records acts sometimes differ widely between states. In fact the Texas Open Records Act contains sixteen specific exclusions to the requirement that all information is public. Two exceptions are particularly relevant. One section excludes from public review “information deemed confidential by law, either constitutional, statutory, or by judicial decision.” 3(a) (1). Another provision excludes from review “records of law enforcement agencies which are maintained for internal use in matters relating to law enforcement.” 3(a) (8). By comparison, the Oklahoma Open Records Act contains no such specific exceptions.
¶18 The Texas court wrote that the crucial exception to disclosure involved in that case was section 3(a) (8). However, it held that “the records designated as Houston Police Blotter . . . do not come within the exclusion and are public records available to the press and public.” Id. at 185.
¶19 Other courts have examined particular police information in light of the open records acts of their states. The Wisconsin Supreme Court, in Newspapers Inc. v. Breier, 279 N.W.2d 179 (Wis. 1979), considered the daily blotter, called the “Daily Arrest List,” subject to the Wisconsin Open Records Act. This police “blotter” is a chronological listing of arrests, recorded at the time of booking at the police station which contained information about individuals taken into custody. Such information included the name, age and date of birth of all persons taken into custody, the time the suspect was taken into custody, and the name of the arresting officer. The Wisconsin Court also held that the offense charged upon arrest must be revealed.
¶20 In Carlson v. Pima County, 10 Med. L. Rptr. 1885 (Ariz.1984), the Arizona Supreme Court held that an “offense report” was a public record under the Arizona Open Records Act. Arizona has a broad Open Records Act but provides for numerous statutory exemptions and case law has extended these exemptions to confidential information or where disclosure would be detrimental to the best interest of the State. See, Mathews v. Pyle, 251 P.2d. 893 (Ariz. 1952). Such an offense report contained the names of the alleged offenders plus details of the incident.
¶21 As stated earlier, the Oklahoma Open Records Act does not contain the numerous exclusions provided for in other states’ open records acts, particularly the Texas Act. We earlier noted the interpretation given the Oklahoma Act. The “police blotter,” using the definition as provided earlier, is a record whose purpose and nature is tied closely with the official functions of the public official(s) and kept in conjunction with the duties and responsibilities of the public official(s). Therefore, such information is a matter of public record subject to the provisions of the Oklahoma Open Records Act, 51 O.S. 24 (1981).
¶22 The third part of your question concerns whether the radio logs maintained by a police department are subject to the provisions of the Open Records Act. We find no statutory definition of a radio log. However, for purposes of this opinion, we are assuming that you mean any recorded electronic transmissions made between the police dispatcher(s) and other parties.
¶23 The Wyoming Supreme Court addressed the issue of recorded telephone conversations with the police department in the case of Sheridan Newspapers Inc. v. City of Sheridan, 660 P.2d 785 (Wyo. 1983). The City of Sherdian Police Department kept a “rolling log.” It was described as:
“. . . a chronological index of all reports and complaints received by the department; in other words, it is any information that callers report to the dispatcher over the telephone. The rolling log typically contains one line of information concerning each subject reported to the department.” Id. at 789.
¶24 Wyoming statutes define what is a public record [§9-9-102(a)(i) W.S. 1977, 1984 Cum. Supp.] and include “sound recording” plus such records “received in connection with the transaction of official business, except those privileged or confidential by law.” Section 9-9-102(a) W.S. 1977 requires all public records to be open for inspection by any person, except as provided in the Open Records Act. It does permit a custodian of the records to deny access of such information to the public under certain circumstances; however, a similar provision is not present in the Oklahoma Open Records Act.
¶25 The Wyoming Court concluded that the “appellant has both a statutory and constitutional right of access to the rolling log and the case reports.” Id. at 797.
¶26 In Cartwright, supra, the Court held that records coming into the hands of public officials in connection with their official functions should be open to the public. Such an understanding is similar to the specific language in the definition of “public records” in the Wyoming Public Records Act where it states, “public records . . . received by them in connection with the transaction of public business.” Section 9-9-101(a) (i) W.S. 1977, 1984 Cum.Supp.
¶27 The Oklahoma Court, in Oklahoma News Broadcasters Assoc. Inc., supra, emphasized that the key to whether a record in Oklahoma is public is the nature and purpose of the document, not the place where it is kept. The nature and purpose of the “rolling logs” used by the Sheridan Police Department in the Wyoming case was that such recordings were gathered in connection with the official functions or transactions of the public officials. The nature and purposes of these recordings would be considered as falling within the interpretation given the Oklahoma Open Records Act, 51 O.S. 24 (1981), as expressed by the Oklahoma Supreme Court.
¶28 Thus, based on the decision reached in the Wyoming case, in conjunction with the Oklahoma cases, recorded electronic transactions with the police department are subject to the Open Records Act, 51 O.S. 24 (1981).
¶29 We add for clarification that the courts have held that a public official cannot deny access to public records on the grounds that the records may, from time to time, or occasionally, contain records exempt from the provisions of an open records act. Sheridan Newspapers Inc., supra; State Ex Rel. Stephan v. Harder, 641 P.2d 366 (Kan. 1982). This is especially true where nonexempt materials are not inextricably intertwined with exempt materials and are reasonable. Johnson v. Winter, 179 Cal.Rptr.585 (Cal.1982), Mead Data Central, Inc. v. U.S. Dept. of Air Force, 566 P.2d 242, 260 (D.C.Cir., 1977).
¶30 Some state courts have recognized a need under open records laws to delete exempt materials from an otherwise disclosable record. IBM Corp. v. State Dept. of Treasury, 248 N.W.2d 605 (Mich. 1976); Hearst Corp. v. Hoppe, 580 P.2d 246 (Wash. 1978). Quoting from language in State Ex rel. Stephan v. Harder, supra:
“We hold that the act implies a duty upon the agency to delete confidential and nondisclosable information from that which may be disclosed, and thus to carry out the act’s purpose of making available for public inspection all disclosable parts of the public record. Were this not so, any record which an agency is required by law to keep could be rendered inaccessible to public scrutiny by including confidential material therein.” Id. at 374.
¶31 Indeed, the Oklahoma Open Records Act specifically excludes from public disclosure income tax returns filed with the Oklahoma Tax Commission or other records required by law to be kept secret including: records of any investigations conducted by the Oklahoma State Bureau of Investigations, 74 O.S. 150.5 (1981); proceedings in adoption cases, 10 O.S. 1125 (1981).
¶32 Though some discretion may be given to the public official on how the information is provided to the public after the deletion of exempt material from disclosable records, whether the public should have access at all is not discretionary. City of Houston v. Houston Chronicle Pub. Co., 673 S.W.2d 316 (Tex. App. Dist. 1984); Griffin-Spalding etc. Auth. v. WKEU, 241 S.E.2d 196 (Ga. 1978); State ex rel. Stephan, supra.
¶33 In closing, we add the language used in State ex rel. Stephan, supra:
“One further issue arises: Are the records which are stored on computer tapes ‘official public records?’ In 1957, when K.S.A. 45-201 [Open Records Act] was enacted, few computers were in use by either public or private agencies. Since that time, computer usage has mushroomed and it is common knowledge that in many instances the only record maintained is that stored within the computer. We hold that the computer tapes described herein are ‘official public records.’ ” Id. at 374.
¶34 It is, therefore, the official opinion of the Attorney General that the jail register, police blotter and recorded electronic transactions with the police department are in general subject to the provisions of the Open Records Act, 51 O.S. 24 (1981). However, with respect to the police blotter, such a conclusion is based upon the definition of police blotter as provided in this opinion. Whether such a definition is applicable to a given police blotter is a question of fact, which must be examined on a case by case basis. Moreover, to the effect such records may contain information that is required by law to be kept secret, such information must first be deleted from the otherwise disclosable record.
MICHAEL C. TURPEN
ATTORNEY GENERAL OF OKLAHOMA
ASSISTANT ATTORNEY GENERAL