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Question Submitted by: The Honorable Scott C. Martin, State Representative, District 46
2014 OK AG 1
Oklahoma Attorney General Opinions
Cite as: 2014 OK AG 1, __ __
¶0 This office has received your request for an official Attorney General Opinion in which you ask, in effect, the following question:
Are audio recordings of state district court proceedings subject to disclosure under the Oklahoma Open Records Act, 51 O.S.2011 & Supp.2013, §§ 24A.1 – 24A.29?
¶1 We have learned through research and conversations that the specific records about which you inquire are tape recordings of district court proceedings that have been filed with a district court clerk. We, therefore, analyze your request in that context, and conclude that sound recordings of court proceedings filed with or kept in the custody of a district court clerk are open records unless they are properly sealed by court order or specifically exempted from disclosure by law.
The Open Records Act
¶2 The Oklahoma Open Records Act (“Act”) makes unequivocal the policy of the State of Oklahoma to make most records of public bodies open for public inspection or copying. The Act specifically provides as follows:
[I]t is the public policy of the State of Oklahoma that the people are vested with the inherent right to know and be fully informed about their government. The Oklahoma Open Records Act shall not create, directly or indirectly, any rights of privacy or any remedies for violation of any rights of privacy; nor shall the Oklahoma Open Records Act, except as specifically set forth in the Oklahoma Open Records Act, establish any procedures for protecting any person from release of information contained in public records. The purpose of this act is to ensure and facilitate the public’s right of access to and review of government records so they may efficiently and intelligently exercise their inherent political power. The privacy interests of individuals are adequately protected in the specific exceptions to the Oklahoma Open Records Act or in the statutes which authorize, create or require the records. Except where specific state or federal statutes create a confidential privilege, persons who submit information to public bodies have no right to keep this information from public access nor reasonable expectation that this information will be kept from public access; provided, the person, agency or political subdivision shall at all times bear the burden of establishing such records are protected by such a confidential privilege.51 O.S.2011, § 24A.2 (emphasis added) (footnote omitted).
¶3 For the purposes of the Act, a record is defined as:
[A]ll documents, including, but not limited to, any book, paper, photograph, microfilm, data files created by or used with computer software, computer tape, disk, record, sound recording, film recording, video record or other material regardless of physical form or characteristic, created by, received by, under the authority of, or coming into the custody, control or possession of public officials, public bodies, or their representatives in connection with the transaction of public business, the expenditure of public funds or the administering of public property.Id. § 24A.3 (emphasis added).
¶4 A public body, as defined by the Act, includes, but is not limited to:
[A]ny office, department, board, bureau, commission, agency, trusteeship, authority, council, committee, trust or any entity created by a trust, county, city, village, town, township, district, school district, fair board, court, executive office, advisory group, task force, study group, or any subdivision thereof, supported in whole or in part by public funds or entrusted with the expenditure of public funds or administering or operating public property, and all committees, or subcommittees thereof.Id. § 24A.3(2) (emphasis added). A public official, under the Act, includes “any official or employee of any public body” Id. § 24A.3(4).
¶5 We have previously held that the offices of court clerks are public bodies as defined in the Open Records Act. See A.G. Opin. 99-58, at 282. We have also held that a court clerk is a public official as defined in the Open Records Act. See A.G. Opin. 09-27, at 187. Finally, a court is expressly defined as a public body in the Open Records Act. 51 O.S.2011, § 24A.3(2).
Records maintained by a court clerk
¶6 In all state courts of record, the court clerk “shall keep the records and books and papers appertaining to the court and record its proceedings.” 12 O.S.2011, §§ 33-34. The court record for a specific proceeding consists of “the petition, the process, return, the pleadings subsequent thereto, reports, verdicts, orders, judgments, and all material acts and proceedings of the court[.]” 12 O.S.2011, § 32.1. This record is also referred to as a “judgment roll.” See Chickasaw Tel. Co. v. Drabek, 921 P.2d 333, 334 n.2 (Okla. 1996). However, the records maintained by court clerks are not limited to the “judgment roll” in any particular action. Court clerks may also maintain “other records as may be ordered by the court or required by law.” 12 O.S.2011, § 22.
¶7 Oklahoma’s state and federal courts have consistently held that documents filed of record in court proceedings are public records subject to disclosure under both common law and Oklahoma’s Open Records Act. See Nichols v. Jackson, 55 P.3d 1044, 1046 (Okla. 2002); Search of 1638 E. 2nd St., Tulsa, Okla. v. United States, 993 F.2d 773, 775 (10th Cir. 1993); see also A.G. Opin. 99-58, at 285 (determining that once records are filed with a court clerk, they must ordinarily be made available for public inspection and copying at the office of the court clerk). Moreover, even where a document is not filed of record in a court proceeding but is otherwise received by, maintained under the authority of, or comes into the custody, control or possession of a court clerk (a public official), or the office of a court clerk (a public body), it is still a “record” and subject to the disclosure requirements set forth in the Open Records Act. 51 O.S.2011, §§ 24A.3, 24A.5. However, the public’s right to access such records is not absolute. See A.G. Opin. 09-12, at 75 (stating that a record as defined by the Act “is subject to disclosure unless some provision of law allows it to be kept confidential”). Specifically, the Open Records Act exempts records protected by privilege or otherwise deemed confidential by state or federal statute or sealed by court order. In re Search of 1638 E. 2nd St., Tulsa, Okla., 993 F.2d at 775; Nichols v. Jackson, 38 P.3d 228, 231 (Okla. Crim. App. 2001); see also 51 O.S.2011, §§ 24A.2, 24A.5(1). Specific procedures are in place at Sections 24A.251 and 24A.29 for withholding or removing of pleadings or other material from a public record.
Electronic Recordings of Court
Proceedings Maintained by a Court Clerk
¶8 Audio or sound recordings of court proceedings may be made upon order of a court pursuant to 20 O.S.2011, § 106.4(A), that states, “[i]n any trial, hearing or proceedings, the judge before whom the matter is being heard may, unless objection is made by a party or counsel, order the proceedings electronically recorded.” Id. Thereafter, such recordings may be filed with or maintained by a court clerk pursuant to 12 O.S. 2011, §§ 22, 32.1. Notably, “sound recording[s] … created by, received by, under the authority of, or coming into the custody, control or possession of public officials, public bodies, or their representatives in connection with the transaction of public business, the expenditure of public funds or the administering of public property” are expressly defined as public records in the Open Records Act. 51 O.S.2011, § 24A.3(1). Accordingly, sound recordings of court proceedings filed with or maintained by a court clerk are open records.
¶9 In Fabian & Associates v. State ex rel. Department of Public Safety, 100 P.3d 703 (Okla. 2004), the Oklahoma Supreme Court examined the issue of whether an audio tape recording of an administrative hearing was an open record. Although the tape recording was made pursuant to a statute governing administrative hearings as opposed to district court hearings, the Supreme Court noted that a record, as defined by the Open Records Act, was “broad enough to include any method of memorializing information . . . either created or received by the public bodies and public officials as defined in the act.” Id. at 705 (emphasis added). Pursuant to this analysis, an audio recording of a district court proceeding that is filed with or maintained by a court clerk is an open record. As always, however, such records may be exempt from disclosure when properly sealed by a court order or if they are otherwise deemed confidential or privileged as a matter of law. See 51 O.S.2011, §§ 24A.2, 24A.5(1).
¶10 It is, therefore, the official Opinion of the Attorney General that:Audio recordings of court proceedings filed with or maintained by court clerks are public records and are subject to disclosure under the Oklahoma Open Records Act unless they are properly sealed by court order or specifically exempt from disclosure by law. 51 O.S.2011 & Supp.2013, §§ 24A.1 – 24A.29; Fabian & Assoc. v. State ex rel. Dep’t of Pub. Safety, 100 P.3d 703, 705 (Okla. 2004).
E. SCOTT PRUITT
Attorney General of Oklahoma
Kari Y. Hawkins
Assistant Attorney General
1 “Any order of the court for removal of materials from the public record shall require compliance with the provisions of paragraphs 2 through 7 of subsection C of Section 3226 of Title 12 of the Oklahoma Statutes.” Id.