Fabian & Associates, P.C. v. State ex rel Dep't of Public Safety7/6/2004
§ 754(F).*fn1 DPS would have this Court conclude that because the statute is permissive regarding making the tapes, they are not records under the Open Records Act or the Records Management Act. DPS asserts that we should follow Oklahoma City News Broadcasters Ass'n, Inc. v. Nigh, 1984 OK 31, 8, 14, 683 P.2d 72, 74, 76, where records pertaining to the Governor's Mansion Account were held not to be Open Records because the law did not require they be kept.
The Open Records Act was amended after Nigh was handed down. The statute cited in Nigh was 51 O.S.1981, § 24. It provided:
"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."
The statute explicitly states that public records are those which public officials "are required by law to keep." It followed that because the Governor was not required to keep a record of the expenditure for the mansion account, neither was he required to keep the expenditures open for public inspection. Nigh, 1984 OK 31, 15, 683 P.2d at 76.
During the next legislative session, the Legislature repealed § 24 and enacted the Oklahoma Open Records Act, 1985 Okla.Sess.Laws, ch. 355, §§ 1-20, now codified as 51 O.S.2001, §§ 24A.1 et seq. The general rule is expressed in the first paragraph of 51 O.S.2001, § 24A.5: "All records of public bodies and public officials shall be open to any person for inspection, copying, and/or mechanical reproduction during regular business hours. . . ."
The term "record" is defined in 51 O.S.Supp.2003, § 24A.3(1). The definition provides in pertinent part:
"'Record' means all documents, including, but not limited to, any book, paper, photograph, microfilm, data files 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 the administering of public property. . . ."*fn2
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." 51 O.S.2001, § 24A.2.
The definition of "record" is then limited to that information which is "in connection with the transaction of public business, the expenditure of public funds or the administering of public property." DPS argues that the individualized hearings do not constitute the "transaction of public business," because that phrase has been defined as "the business of the whole people of the state." State ex rel. Freeling v. Lyon, 1917 OK 229, 1, 165 P. 419.
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