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Reporter Numbers:
Unpublished
Court:
COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION IV
Case Docket Number:
102262 and 102263
Date Decided:
August 10, 2007
Opinion By:
Keith Rapp, Vice Chief Judge
Votes:
Gabbard, PJ., and Reif, J. concur
County:
Oklahoma
District Court Case No.:
CJ-2001-5314
Trial Court Judge:
Vicki Robertson
Appellant Lawyer(s):
J. Schadd Titus and Jessica E. Rainey
Appellees Lawyer(s):
Jerry Lynn Metcalfe
Contact a Lawyer

If you need to get help with your FOIA issue, please reach out and one of our attorneys will review your case.

World Publishing Co. v. Dept. of Public Safety (2007)

Law enforcement or OHP manuals may not be categorically withheld. LE Agency has a duty to produce all non-law enforcement records that are “reasonably segregable” from the portions that may be withheld. Public interest may also outweigh reason for denial and must be disclosed.

Editors Note:
Link: Trial Courts Order after being Reversed and Remanded.  World Publishing and OHP signed off on an Order from the trial court where certain records were deemed to be subject to disclosure: Computerized citation and warning data, OHP Manual (minus certain sections deemed to be “tactical” in nature), use of force records, K9 records, all legal actions filed by or against OHP.

NOT FOR OFFICIAL PUBLICATION

IN THE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA

DIVISION IV

Case No. 102,262
(cons. With No. 102,263)

 

WORLD PUBLISHING COMPANY,                                                              

            Plaintiff/Appellee,          

v.

 

STATE OF OKLAHOMA ex rel.                         

DEPARTMENT OF PUBLIC SAFETY ,                

And its division, THE OKLAHOMA                   

HIGHWAY PATROL,                                                         

            Defendant/Appellant.                         

APPEAL FROM THE DISTRICT COURT OF

OKLAHOMA COUNTY, OKLAHOMA

HONORABLE VICKI L. ROBERTSON, TRIAL JUDGE

 

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS

AS TO CAUSE NUMBER 102,263;

AFFIRMED IN PART, REVERSED IN PART AND

REMANDED FOR FUTHER PROCEEDINGS

AS TO CASUE NUMBER 102,262

 

  1. Schaad Titus

Jessica E. Rainey

TITUS HILLIS REYNOLDS

DICKMAN & MCCALMON, P.C.

Tulsa, Oklahoma                                                                     For Plaintiff/Appellee

 

Jerry Lynn Metcalfe

OKLAHOMA DEPARTMENT OF

PUBLIC SAFETY

Oklahoma City, Oklahoma                                                      For Defendant/Appellant

 

OPINION BY KEITH RAPP, VICE CHIEF JUDGE:

 

The trial court plaintiff, World Publishing Company (WPC), and the trial court defendant, State of Oklahoma ex rel, Department of Public Safety (DPS) and its division, The Oklahoma Highway Patrol (OHP), each separately appeal from the trial court’s order sustaining in part and denying in part the parties’ cross-motions for summary judgment.[1] These appeals proceed under the accelerated appeal provisions of Okla. Sup. Ct. R. 1.36, 12 O.S. 2006, ch. 15, app.[2]

 

BACKGROUND

 

This has been a long running action between the parties resulting in suit being filed by WPC in 2001, after making a request to DPS for production of what WPC asserted were public records maintained by DPS. DPS has supplied some information. WPC deemed the responses unsatisfactory and sought relief in the form of a declaratory judgment that DPS violated the Oklahoma Open Records Act, 51 O.S. 2001 § 24A.1 and following, along with a ruling that the requested information constitutes open records, a mandatory injunction requiring production of the records, and a writ of mandamus.[3]

 

WPC’s stated purpose in asking for the records is to research and ascertain “whether improper racial or sexual profiling exists or existed” and it therefore sought records relating to arrests, citations, use of force, searches, stops and procedures.[4] DPS defended the request asserting that the records were not “open records” or that, if they were “open records,” they were not subject to production because of overriding privacy laws, exemptions due to administrative burden, the availability of the records elsewhere, or the fact that certain records do not exist and DPS is not required to create a “record” in order to satisfy the production request.[5]

 

The parties filed their respective motions for summary judgment. The trial court sustained in part and denied in part each parties’ motion.[6] Both parties have appealed and the appeals are consolidated for review. The summary of WPC’s appeal is contained in section C herein and that of DPS is contained in section D.

 

 

STANDARD OF REVIEW

 

The matter raised in this appeal are questions of law. Therefore, the appellate standard of review in summary judgment is de novo. Kirkpatrick v. Chrysler Corp., 1996 OK 136 ¶ 2, 920 P.2d 122, 124. All inferences and conclusions to be drawn from the materials in summary judgment must be viewed in a light most favorable to the non-moving party. Carmichael v. Beller, 1996 OK 48, 914 P.2d 1051. Even though the facts may not be controverted, if reasonable persons may draw different conclusions from these facts, summary judgment must be denied. Bird v. Coleman, 1997 OK 44, 939 P.2d 1123. Summary judgment is proper only if the record reveals uncontroverted material facts failing to support any legitimate inference in favor of the nonmoving party. N.C. Corff Partnership, Ltd. V. OXY USA, Inc., 1996 OK CIV APP 92, 929 P.2d 288.

 

When a defendant also moves for summary judgment without relying upon an affirmative defense, the defendant must show that: 1) no substantial factual controversy exists as to at least one fact essential to plaintiff’s theory of the cause of action; and, 2) the fact is in defendant’s favor. Once a defendant has introduced evidentiary materials to establish these points, the plaintiff then has the burden of showing that evidence is available which justifies a trial of the issue. Akin v. Missouri Pacific Railroad Co., 1998 OK 102, ¶ 8, 977 R.2d 1040, 1044; Stephens v. Yamaha Motor Co., Ltd. Japan, 1981 OK 42 ¶ 11, 627 P. 2d 439, 441; Runyon v. Reid, 1973 OK 25, ¶¶ 12-13, 510 P.2d 943, 946. On the other hand, when the defendant relies upon an affirmative defense, then the defendant, as the part with the burden of proof, must meet the same standards as a plaintiff movant. Akin, 1998 OK 102 at ¶ 9, 977 P.2d at 1044.

 

Matters involving legislative intent present questions of law, which are examined independently and without deference to the trial court’s ruling. Keizor v. Sand Springs Ry. Co., 1993 OK CIV APP 98, ¶ 5, 861 P.2d 326, 328.

 

Summary judgment in a declaratory judgment action is error when facts are in dispute. Oliver v. Omnicare, Inc., 2004 OK CIV APP 92, ¶ 12, 103 P.3D 626, 630.

 

ANALYSIS AND REVIEW

 

  1. General Principles[7]

 

The Oklahoma Open Records Act has for its purpose public knowledge and information about the workings and happenings of government. 51 O.S. 2001, § 24A.1. Privacy interests are protected by other laws, and unless other laws exempt disclosure, records subject to disclosure under the Act cannot be kept from the public. Id.

 

The definition of “record” is found in Section 24A.3(1).[8] In 2004, the Oklahoma Supreme Court, referring to the opening paragraph of Section 24A.3 ruled:

 

The definition is broad enough to include any method of memorializing information. That information may be either created or received by the public bodies and public officials as defined in the act. The additional phrases, “under the authority of,” “coming into the custody, control or possession of,” are intended to broaden the phrase “received by” consistent with the purpose of the act “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.

 

Fabian & Associates, P.C. v. State ex rel. Dept. of Public Safety, 2004 OK 67, ¶ 10, 100 P.3d 703, 705.[9]

 

This Court notes that the Legislature has established a broad disclosure policy regarding government records. Nevertheless, the Legislature has specially treated law enforcement agency records, under the Open Records Act, and by definition DPS, separately from most other agency records.

The Act defines “law enforcement agency” in Section 24A.3(5). The parties agree that DPS is such an agency. The Act lists the records that DPS “shall make available for public inspection.” 51 O.S. 2001, § 24A.8(A). Subsections 24A.8(B) and (C) provide for certain exceptions and limitations on the disclosure of other records.[10]

 

Section 24A.8(A) of the 2001 version of the Act defines some of the law enforcement agency’s records as open records by definition.[11] The agency’s only basis for not making the 24A.8(A) list available is that the agency does not keep the records. In addition, the Act does not require the agency to establish record keeping not otherwise required by law. Thus, the first inquiry here is whether the records requested by WPC fall within the scope of Section 24A.8(A), and, if so, are such records kept by DPS, including OHP.

 

Section 24A.8(B) of the Act provides for a second category of records, termed “law enforcement records” not otherwise made open by other laws.[12]

 

The term “law enforcement records” is not defined in the Act. The Act’s general definition of “records” includes, in broad terms, any record “in connection with the transaction of public business, the expenditure of public funds or the administering of public property.” 51 O.S. 2001, § 24A.3(1). Clearly, a law enforcement agency may have records not specifically listed in Section 24A.8(A). Thus there arises the question of whether a law enforcement agency may deny access to all other of its records not specifically listed in Section 24A.8(A), subject to court intervention pursuant to Section 24A.8(B), where the public interest or that of an individual outweighs the reason for denial.

 

However, the broad language of Section 24A.3(1) appears to be constrained by the specific provision of Section 24a.8(B). This conclusion finds support in an Oklahoma Supreme Court ruling that a law enforcement agency record involving traffic collision reports, not specifically listed as a Section 24A.8(A) record, came under Section24A.8(B). Cummings & Associates, Inc. v. City of Oklahoma City ex rel. Oklahoma City Police Dept., 1993 OK 36, ¶¶ 7-8, 849 P.2d 1087, 1089-90 (traffic collision reports not listed in Section 24A.8(A) come within the purview of Section 24A.8(B)); see Transportation Information Services v. Oklahoma Department of Corrections, 1998 OK 108, ¶ 13, 970 P.2d 166, 172.

 

It is to be noted that even though a law enforcement agency record may not be listed in Section 24A.8(A), it may still be released to the public where, as provided in 24A.8(B), “a court finds that the public interest or the interest of an individual outweighs the reason for denial.”[13]

 

A third category of records exists which is relevant. This category consists of records that come within the purview of the Driver’s Privacy Protection Act (DPPA), 18 U.S.C. §§ 2721-2725 (2000 and Supp. 2006). These records may not be disclosed, except as allowed under the DPPA, so the inquiry is whether any of WPC’s request is barred by DPPA. A subcategory of records, for which disclosure under the current version of the Open Records Act is not required, excludes from the definition of records DPS video and audio recording (not involved here[14]) and computer software.[15] The Act does not provide a definition of “computer software.”

 

A final category may be characterized as records containing a mixture of accessible records and exempt records. In 2001, the Act made provision for access to the “reasonably segregable portion” of a record containing exempt material with the provisio that DPS “shall not be require to assemble for the requesting person specific information requested from (DPS’s) Driver License file relating to persons whose names and dates of birth or whose driver license numbers are not furnished by the requesting person.” 51 O.S. 2001, § 24A.5(2).[16]

 

Consequently, the issue here under the 2001 version of the statute is whether any part of the WPC request calls for information from DPS’s Driver License file.[17]

 

  1. Effect of Statutory Amendments

 

As noted, the Open Records Act has been amended since the action was instituted. The Legislature did not provide for retroactive application of the amendments. In general, statutes and statutory amendments will be construed as operating prospectively unless the Legislature clearly demonstrates a contrary intent by express declaration or necessary implication from the language used in the Amendment. If there is any doubt, it must be resolved against retroactivity. Dolese Bros. Co. v. State ex rel. Oklahoma Tax Comm’n, 2003 OK 4, ¶ 8, 64 P.3d 1093, 1097.

 

One exception to the general rule is that amendments involving procedure and remedies may be applied retroactively. However, such is not the case here.

 

A second exemption to the general rule is found in Magnolia Pipeline Co. v. Oklahoma Tax Comm’n, 1946 OK 113, 167 P2.d 884. By amending a statute the Legislature may have intended one of two things — to change the existing law or to clarify a law that had been ambiguous. Legislative intent is ascertained by looking to the circumstances surrounding the change. Where the earlier statute definitely expressed an intent or had been judicially interpreted, the Legislature is presumed to have changed an existing law, but where the meaning of the earlier statute was in doubt or where the conflict as to the law’s meaning did exist, a presumption arises that the amendment was designed to clarify the legislative intent previously indefinitely expressed. Magnolia, 1946 OK 113 at ¶ 11, 167 P.2d at 888.

 

This rule was also discussed in Welch v. Armer, 1989 OK 117, 776 P.2d 847, where the statute under review was amended after the accident which gave rise to the claim. The Court declined to apply the amendment retrospectively, holding that the amendatory statute did not clarify an existing law but rather altered it. Welch, 1989 OK 117 at ¶ 28, 776 P.2d at 850.

 

The amendments in the present case, just as in Welch, alter the parties’ rights and obligations with respect to Open Records accessibility. The amendments do not serve as clarification of the existing law. Moreover, the 2001 version of the Act expressed the legislative intent at that time.

 

Therefore, this Court holds that the Open Records Act as written when this action was filed is the governing law applicable to this case and amendments will thereafter not be applied retroactively.

 

  1. WPC Appeal

 

WPC deems itself aggrieved by the trial court’s rulings that:

— DPS’s policies and procedures manual (especially those policies dealing with traffic stops during drug searches) is not an open record and shall not be required to be made available.

— Computerized traffic citation data, listing name, date of birth, race, location of stop, trooper involved, citation(s) issued and other information available and computerized warning citation data are all not open records and need not be made available. (These items will be collectively called “computerized data.”)

 

Upon review, this Court rules that the trial court erred in granting summary judgment to DPS as explained in subsequent sections.

 

 

 

 

 

  1. DPS/OHP Operations Manual

 

WPC deposed a representative of OHP who was designed as the records custodian. This deposition included testimony concerning the substance and content of the Operations Manual.[18]From this testimony, and the parties’ arguments, it is clear that the Operations Manual is a record and that it is not one within the Section 24A.8(A) list.

 

Moreover, it is clear that some parts of the Operations Manual are unquestionably “law enforcement records” and other parts less obviously so, such as the former governor’s message. In this regard, the deposition testimony covered a number of topics in the Operations Manual where the witness testified that there was no reason why the information could not be made public.

 

Thus, the Operations Manual is a record containing both accessible information and potentially exempt records that may be kept confidential subject to court intervention under Section 24A.8(B).[19]

 

The trial court erred in ruling that the Operations Manual is “not an open record” and granting summary judgment on this issue as questions of fact remain requiring resolution. The trial court had a duty to order the disclosure of all non-law enforcement records that are reasonable segregable from the whole, and all law enforcement records where separating the Operations Manual into the two divisions of the Section 24A.8(B) category and then, as to whether any parts of the Operations Manual, not being “law enforcement records,” are “reasonably segregable” from the whole and made accessible. In addition, if WPC seeks access to the portion of the Operations Manual constituting “law enforcement records” that may be kept confidential, then a decision must be made whether the “public interest or the interest of the individual outweighs the reason for denial.”

 

  1. Computerized Data

 

The trial court ruled that the computerized data are not open records.[20] DPS presents four reasons why WPC is not entitled to computerized data. First, DPS argues that even though the subject matter of the computerized data is within the Section 24A.8(A) list, it must remain confidential pursuant to the DPPA and the provisions of 47 O.S. 2001, § 2-110(E).[21] DPS also argues that because of those statutory provisions that requested records are not “open” records.

 

Second, DPS states that the computerized data are stored on its mainframe system and the system is not a relational database. DPS maintains a public record does not exist because a special computer program is required to retrieve the information without private information redacted, which program does not exist, and DPS is not required to create one. Third, DPS maintains that production of the information without the exempt DPPA information imposes an undue burden on DPS, thus excusing it from furnishing the information. Fourth, WPC has an alternative means to obtain the information by searching court records and looking at the abstract traffic records compiled pursuant to 47 O.S. 2001, § 18-101.

 

  1. DPPA and Oklahoma Statutes

 

This Court holds, first, the computerized data are records under the Act. Moreover, the computerized data requested are, with exception of the warning citation data, clearly within the scope of the Section 24A.8(A) list. Warning citation data are not specifically included in the Section 24A.8(A) list, so would fall under the first division about of “law enforcement records” of Section 24A.8(B) and could be kept confidential subject to court intervention.

 

Nevertheless, all of the computerized data has been listed by DPS as not an Open Record because of DPPA and 47 O.S. 2001, § 2-110.

 

By its own terms, DPPA applied to a “motor vehicle record” defined as the operator’s permit, the vehicle title, registration or an identification card. The statute excludes information concerning accidents, driving violations, and driver’s status. Thus, in order for DPPA to govern disclosure, the computerized data must be a part of a “motor vehicle record” as that term is defined in DPPA.

 

Violation of traffic laws records within the scope of the Section 24A.8(A) list does not necessarily equate to a “motor vehicle record” as defined in DPPA, nor do warning records. Moreover, DPS keeps the information on a mainframe computer, or did so at the time, and there is no indication that the “motor vehicle record” is identical to the Section 24A.8 records.[22]

 

Thus, this Court holds that the DPPA does not provide a per se basis for non disclosure of Section 24A.8(A) or (B) records under the statutes in effect when this action was filed. Further, the DPPA does notprotect against disclosure of violations of law, traffic or otherwise. 18 U.S.C. § 2725(3)(2000 and Supp. 2006).

 

To the extent that the trial court’s ruling that the computerized data are not Open Records is premised upon the DPPA, the holding cannot be sustained under summary judgment review. Factual issues exist regard whether “motor vehicle records” are inextricably commingled with the Section 24A.8 list records, or are identical to Section 24A.8 records.[23] Moreover, with regard to the traffic warning citation data, factual issues exist whether the criterion of Section 24A.8(B) for disclosure are present, as well as whether such records were kept at that time.[24]

 

  1. Storage and Retrieval Excuse

 

DPS’s argument is that the requested computerized data is not an open record

because it is stored on a mainframe computer and not easily accessible and that no computer program exists to redact privacy information, such as name and social security number. The simple answer here is that: (1) the requested information is a record and the application of DPPA has been addressed above: and; (2) The computer issue does not transform the data to make it not an Open Record, rather the issue is whether DPS is excused from producing the record which is otherwise an Open Record.

 

The statutory excuses for producing the Section 24A.8(A) list records are: (1) the record is not kept; or (2) the normal, or if applicable, the extraordinary, statutory fee assessed under 51 O.S. 2001, § 24A.5(3), is not paid. The latter is in applicable here as WPC has tendered the costs of reproduction and DPS does not maintain that the tender fails to meet the statutory requirements.

 

Therefore, a factual question remains – does DPS maintain Section 24A.8(A) records separately from the Driver License file or does it retain them in such a condition as they are reasonably capable of being separated from the Driver License file with the privacy information deleted.[25] DPS says no and WPC disputes DPS’s conclusion.[26] Under the record, the issue may not be resolved under summary judgment and, further the denomination of the Section 24A.8(A) list of records as not Open Record is error.

 

The same reasoning applies to the Section24A.8(B), records which are law enforcement records, and primarily the warning citation information WPC requested. In addition, DPS may be excused under Section 24A.8(B) if the court resolved the balancing test in DPS’s favor. In either event, labeling the documents as not Open Records is error and the factual issues here prevent resolution by summary judgment.

 

  1. Undue Burden and Alternative Sources.

 

The “undue burden” issue is partly addressed by the Act in Section 24A.5(3) by providing for fees to compensate the agency. In Transportation Information Services v. Oklahoma Department of Corrections, 1998 OK 108, 970 P.2d 166, the Court treated the “undue burden” issue as one involving compensation to the agency for extraordinary effort required to respond to the records request. In its separate appeal, DPS cites Cummings & Associates, Inc. v. City of Oklahoma City ex rel. Oklahoma City Police Dept., 1993 OK 36, 849 P.2d 1087, as authority for its “undue burden” defense. However, Cummings is a case involving the Section 24A.8(B) balancing test is the undue burden on the agency. However, “undue burden” is not, standing alone, an excuse nor does the burden or production transform an Open Record to a record that is not open. It may happen that the WPC request involved substantial financial expense, but that is WPC’s burden.

 

The fact that information may be available from an alternative source, such as a court record, is neither an excuse not a basis to redesignate an Open Record into a record that is not open.

 

  1. DPS’s Appeal

 

DPS does not dispute that the types of records included in the balance of the WPC records request, and ordered provided by the trial court, are open records.[27] Thus, that part of the trial court’s judgment finding certain records to be open records is not challenged and is affirmed.

 

DPS asserts trial court error in determining DPS was required to provide and make the database’s structure available to WPC for research purposes and also to provide it a list of reports and programs available to be produced or capable of being produced, including that of K-9 activity.

 

DPS further asserts that the facts show that the records are not kept by the agency.[28] As stated above, this appears to be an excuse for not providing a record. However, it does not transform the record from being as an Open Record. In that regard, the following records are discussed in subsequent categories.[29]

 

  1. Computer Data.

 

The trial court, in paragraphs (B) and (C) of the judgment, ordered DPS to produce database information to show what computerized information is available and a list or examples of reports and programs. DPS represents that the database information does not exist as to “all of its computer structures, reports and formats” but does not delineate that which does and does not exist.[30] DPS further represents that the list of reports and programs does not exist.

 

WPC’s response argues that the trial court correctly ordered production of this information because DPS concedes that this type of information in an Open Record.[31] WPC further complains that the information DPS has provided does not explain the computer system. Both arguments, however, fail to respond to the question of whether, in fact, the information exists. Obviously, a fact issue dispute exists here regarding this issue, which makes summary judgment inappropriate.

 

  1. The Remainder of Information Ordered Produced.

 

DPS’s contention as to the trial court’s ruling in Paragraphs (D), (E), and (H) is general in nature. There rulings relate to records involving use of force, K-9 searches, and legal actions against DPS or personnel. With respect to the last item, DPS does not present here, or in the record, any defense to the request, so the trial court’s judgment in paragraph (H) in affirmed.

 

DPS claims that: (1) its system is not a “relational database” but requires name and birth date or a driver’s license number to extract information, (2) it contains a massive volume of information, and (3) it is designed to provide information to the DPS personnel and not to the public. WPC and DPS refer to testimony from DPS representatives and draw divergent conclusions from that testimony about whether the information is available.[32]

 

The Act does not impose special or additional record keeping requirements upon law enforcement agencies specifically, or agencies in general. 51 O.S. 2001, §§ 24A.8(C), 24A.18. However, DPS’s contention presents an issue of retrieval of records rather than whether records are kept. This issue then invokes the right the agency to require payment of extraordinary costs and the obligation of WPC, as requestor, to pay reasonable costs.[33] 51 O.S. 2001, § 24A.5(3).

 

Therefore, this Court concludes that the judgment of the trial court as to the data in paragraphs (D), (E), and (H) is correct and is thus affirmed.

 

CONCLUSION

 

The judgment of the trial court in the WPC appeal, cause number 102,263, is reversed and remanded for further proceedings, consistent with this Opinion. The judgment of the trial court in the DPS appeal, cause number 102,262, is affirmed in part, reversed in part and remanded for further proceedings not inconsistent with this Opinion.

 

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS AS TO CAUSE NUMBER 102,263; AFFIRMED IN PART, REVERSED IN PART AND REMANDED FOR FURTHER PROCEEDINGS AS TO CAUSE NUMBER 102,262.

 

GABBARD, P.J., and REIF, J., concur.

August 10, 2007

 

[1]                Two appeals were filed and have been consolidated. DPS’s appeal is designated as appeal case number 102,262 and is the surviving case number. World Publishing Company publishes the Tulsa World newspaper. Its appeal is designated as appeal case number 102,263. The parties have been permitted to file briefs, which have been received and reviewed.

[2]                The request for oral argument has been considered and is hereby denied.

[3]                The trial court dismissed the request for a writ of mandamus and that action has not been appealed here. Subsequent to the open records request and the filing of this action, the Open Records Act has undergone amendment. In their briefing, neither party asserts that any amendment affects this particular request for records. See discussion under Part B of the Analysis.

[4]                In its brief as appellant in case number 102,262, DPS’s first proposition is that the production of records issue is limited to those records requested and denied prior to commencement of the litigation. During litigation and as a part of discovery, WPC has requested numerous items of information. WPC’s reply brief concedes that the scope of the request is as stated in its petition, but further notes that in its declaratory judgment action the subject records are “open records” and that this removed the requirement for court intervention for the records each time requested.

[5]                DPS agreed that some of WPC’s requests were for “open records” but asserted the latter set of defenses as to those requests enumerated in this paragraph.

[6]                Specifics of the ruling are set out in the analyses of the trial court’s decision.

[7]                Statutory provisions in effect when the case was filed, July 17, 2001, are utilized. See notes 3, 4 and discussion under Part B of the Analysis and Review of this Opinion.

[8] 51 O.S. 2001, § 24A.3(1), Okla. Sess. Laws 2001, c. 355, § 1, emerg. Eff. June 1, 2001, provides:

 

“Record” means all documents, including, but not limited to, any book, paper, photograph, microfilm, data filed created by or used with computer software, computer tape, disk, and 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 administering of public property. “Record does not mean computer software, nongovernment personal effects or, unless public disclosure is required by other laws or regulations, vehicle movement records of the Oklahoma Turnpike Authority obtained in connection with the Authority’s electronic toll collection system, personal financial information, credit reports or other financial data obtained by or submitted to a public body for the purpose of evaluating credit worthiness, obtaining a license, permit, or for the purpose of becoming qualified to contract with a public body. “Record” does not mean any personal information provided by a guest at any facility owned or operated by the Oklahoma Tourism and Recreation Department to obtain any service at such facility or by a purchaser or a product sold by or through the Oklahoma Tourism and Recreation Department.

 

It is to be noted that the current version of Section 24A.3, which is not used for purposes of this analysis, itemizes those things which are not “records” by definition. Added to the list are provisions not pertinent here, as well as information concerning driver records protected by the federal Driver’s Privacy Protection Act, 18 U.S.C. § 2721-2725. Here, one of the disputes is whether some of the requested records fall under the protection of the federal law, but the parties do not dispute whether federal law either provides protection or applies to records if covered by the law.

[9]                The “record” in issue, in Fabian & Associates, constituted tape recordings of Implied Consent hearings involving drivers’ license revocations. The Court examined the 2003 version of the Act which was similar to the 2001 version now under consideration. Since then, the Legislature has amended the definition of “records” to exclude audio or video recordings of the DPS. 51 O.S. Supp., § 24A.3(1)(h)(3).

[10]              Section 24A.8(A)-(C), as written in 2001, provides:

  1. Law enforcement agencies shall make available for public inspection, if kept, the following records:
  2. An arrestee description, including the name, date of birth, address, race, sex, physical description, and occupation of the arrestee;
  3. Facts concerning the arrest, including the cause of arrest and the name of the arresting officer;
  4. Conviction information, including the name of any person convicted of a criminal offense;
  5. Disposition of all warrants, including orders signed by a judge of any court commanding a law enforcement officer to arrest a particular person;
  6. A chronological list of incidents, including initial offense report information showing the offense, date, time, general location, officer and a brief summary of what occurred;
  7. A crime summary, including a departmental summary of crimes reported and public calls for service by classification or nature and number;
  8. Radio logs, including a chronological listing of the calls dispatched; and
  9. Jail registers, including jail blotter data or jail booking information recorded on persons at the time of incarceration showing the name of each prisoner with the date and cause of his commitment, the authority committing the prisoner, whether committed for a criminal offense, a description of the prisoner, and the date or manner of his discharge or escape.
  10. Except for the records listed in subsection A of this section and those made open by other state or local laws, law enforcement agencies may deny access to law enforcement records except where a court finds that the public interest or the interest of an individual outweighs the reason for denial.
  11. Nothing contained in this section imposes any new recordkeeping requirements. Law enforcement records shall be kept for as long as is now or may hereafter be specified by law. Absent a legal requirement for the keeping of a law enforcement record for a specific time period, law enforcement agencies shall maintain their records for so long as needed for administrative purposes. (Emphasis added.)

The current version of the Act does not change the list, but does renumber the list. 51 O.S. Supp. 2006, § 24A.8 In addition, the Act now contains a subsection G providing mandatory confidentiality for:

  1. All records it maintains pursuant to its authority under Title 47 of the Oklahoma Statutes relating to the Oklahoma Highway Patrol Division, the Communications Division, and other divisions of the Department relating to:
  2. training, lesson plans, teaching materials, tests, and test results,
  3. policies, procedures, and operations, any of which are of a tactical nature, and
  4. the following information from radio logs:
  • telephone numbers.
  • Addresses other than the location of incidents to which officers are dispatched, and
  • Personal information which is contrary to the provisions of the Driver’s Privacy Protection Act, 18 United States Code, Sections 2721 through 2725; and
  1. For the purpose of preventing identity theft and invasion of law enforcement computer systems, except as provided in Title 47 of the Oklahoma Statutes, all driving records.

With regard to the federal law and its application here, see n.7. Subsection G presents an issue which this Court has not considered, except as stated herein in part B.

 

[11]              These records will be referred to here as the Section 24A.8(A) list. These records include records that would include violations of traffic laws, as well as other violations.

[12]              WPC does not argue that the records it requested are made open by any other law.

[13]              An Attorney General Opinion issued in 1979 and pertaining to 51 O.S. 1971, § 24, now repealed, illustrates the problems presented.

It is, therefore, the opinion of the Attorney General that your question be answered as follows: Records used to internal detection and investigation of crimes are not public in nature; however, administrative records are within the purview of 51 O.S. 24 (1971) and open to public inspection. Whether a record is public in nature is a question of fact that can only be determined from the type and purpose of the record maintained, its use, and the statutes, ordinances, and policies pertaining to the individual law enforcement entity maintaining the record in question.

 

Op. Atty. Gen. No. 79-172 (July 20, 1979).

[14]              See n.7.

[15]              A category of information that may be kept confidential consists of personnel records, educational records and federal records, all of which are not involved here.

[16]              The present version of the Act specifically excludes personal information within driver’s records or defined by DPPA.

[17]              Application of the current version of the Act frames the inquiry as whether any party of the request calls for information from driving records.

However, for purposes of summary judgment review, two preliminary inquiries precede the analysis. First while the “ordinary meaning” approach to statutory language would result in defining “Driver License file” as less comprehensive than “driving records,” the undisputed facts here need to show that DPS has not administratively made the terms synonymous. Second, the undisputed facts need to show what information is contained in each type of record.

In this regard, DPS’s representative testified by deposition that the Driver License file is separate from driving record. In the next answer, the witness testified that all information concerning a driver is in one file. Dep of Thaxton, p. 16, Ex. B, WPC Motion for Summary Judgment.

[18]              Exhibit C to WPC Motion For Summary Judgment, Deposition, page 22 and following. This motion and the exhibits to the motion were filed under seal. Therefore, specifics as to the testimony will not be provided in this Opinion as the parties are aware of the testimony.

[19]              The tenor of WPC’s briefs indicates that it may concede confidentiality of some information in the Operations Manual.

[20]              Journal Entry, paragraphs F and G.

[21]              The pertinent part of 18 U.S.C. § 2721(a)(2) and (b)(3) (2000 and Supp. 2007) provide:

(2) highly restricted personal information, as defined in 18 U.S.C. 2725(4), about any individual obtained by the department in connection with a motor vehicle record, without the express consent of the person to whom such information applies, …

(except that such information may be disclosed).

  • For use in research activities, and for use in producing statistical reports, so long as the personal information is not published, redisclosed, or used to contact individuals.

 

18 U.S.C. § 2725 (2000 and Supp. 2007) defines in following terms:

 

  • “motor vehicle record” means any record that pertains to a motor vehicle operator’s permit, motor vehicle title, motor vehicle registration, or identification card issued to by a department of motor vehicles;
  • “person” means an individual, organization or entity, but does not include a State or agency thereof;
  • “personal information” means information that identifies an individual, including an individual’s photograph, social security number, driver identification number, name, address (but not the 5-digit zip code), telephone number, and medical or disability information, but does not include information on vehicular accidents, driving violations, and driver’s status.
  • “highly restricted personal information” means an individual’s photograph or image, social security number, medical or disability information; and
  • “express consent” means consent in writing, including consent conveyed electronically that bears an electronic signature as defined in section 1069(5) of Public Law 106-229. (Emphasis added.)

 

The Oklahoma Statute, 47 O.S. 2001, § 20110(E)(now F under the current version) reads as follows:

 

  1. The provisions of subsections B and D of this section and the Open Records Act shall not apply to the release of personal information on the driving record of any person or application for an original, renewal, or replacement driver license or identification card. Such personal information shall be confidential except as provided for in this subsection or in the provisions of the Driver’s Privacy Protection Act, 18 United States Code, Section 2721 through 2725. Upon written request to the Commissioner of Public Safety by a law enforcement agency or another state’s or country’s driver licensing agency for personal information on a specific individual, as named or otherwise identified in the written request, to be used in the official capacity of the agency pursuant to the provisions of the Driver’s Privacy Protection Act, 18 United States Code, Sections 2721 through 2725. For the purposes of this subsection, “personal information” means information which identifies a person, including but not limited to a photograph or image in computerized format of the person, fingerprint usage in computerized format, signature or signature in computerized format, social security number, residence address, mailing address, and medical or disability information.

 

[22]              While it is true that, under 47 O.S. 2001, § 6-117 (unchanged provisions in the current version), violations records are part of a specifically required file for every driver’s license or identification card request, there is a question of fact whether this specific file is the same or separate to a record containing Section 24A.8 records.

 

On this point, this Court notes that the deposition testimony of a DPS representative disclosed in one response that the DPS maintains a separate driver’s license file on its mainframe computer. However, in the next answer the witness testified that all information about a person as a driver is maintained in one file.

[23]              Again, this Court does not express any views whether current amendments to the Act will affect a similar record request after the amendments became effective.

[24]              Deposition testimony from a DPS representative disclosed that the warning information is kept as a record only by a local troop. Ex. B WPC Motion for Summary Judgment, Thaxton Dep. Pages 27-28.

[25]              See Transportation Information Services, Inc. v. State of Oklahoma, 1998 OK 108, ¶ 16, 970 P. 2d 166, 172. The Court held that the use of a program to point out information involving redactions or deletion of non-public information was required given that the requestor of the records agreed to pay the cost of developing the program.

[26]              It is also noted that DPS, contrary to its stated inability to extract or redirect data from its data records, did not deny it did perform a similar request for a State Legislator involving statistical information concerning race.

[27]              DPS Appellant’s brief at p. 21.

[28]              On page 24 of its Appellant’s brief, DPS adds that is not required to provide records “where production would be unduly burdensome.” No additional authority is provided for this statement in context of DPS’s concession that the types of records requested are Open Records. The previous discussion under WPC’s appeal resolved the undue burden excuse.

[29]              This Court notes that the trial court, in a preliminary ruling on November 24, 2003, qualified a requirement for production of these same records based upon whether DPS kept the records. Transcript, November 24, 2003, p. 7. DPS’s Ex G to its Counter Motion For Summary Judgment and Response to WPC’s Motion for Summary Judgment.

[30]              DPS Appellant’s brief at 22.

[31]              WPC Appellee’s brief at 5.

[32]              Depositions, Exhibits B and C to WPC Motion for Summary Judgment.

[33]              WPC has, at several points in its brief, offered to pay reasonable costs. This then is not an issue to WPC.

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