Fabian & Associates, P.C. v. State ex rel Dep't of Public Safety7/6/2004
DPS asserts that the hearing is not the business of all the people of the state, but of an individual. We do not agree.
Although the hearing involves one person, the outcome of whether one arrested for driving under the influence of alcohol will be permitted to continue to drive on public roads is the business of all the people of the state. "The purpose of the revocation or suspension is to protect the public. . . ." Robertson v. State ex rel. Lester, 1972 OK 126, 14, 501 P.2d 1099, 1102.
Based on these observations, tape recordings of Implied Consent Hearings, even though permissive, are public records. This does not, however, end our examination of the issue. Section 24A.5(1) provides for exceptions to open public records: "The Oklahoma Open Records Act, Section 24A.1 et seq. of this title, does not apply to records specifically required by law to be kept confidential. . . ."
In addition to the general rules regarding public officials and public bodies, DPS is specifically named as a "law enforcement agency" in the definitions section of the Open Records Act. 51 O.S.Supp.2003, § 24A.3(5).*fn3 Section 24A.8(A)(2) provides: "A. Law enforcement agencies shall make available for public inspection, if kept, the following records . . . 2. Facts concerning the arrest, including the cause of arrest and the name of the arresting officer. . . ." By this statute, DPS is required to make available for public inspection facts concerning the arrest. Fabian asserts that the requested tapes contain the facts concerning the arrest and therefore § 24A.8(A)(2) requires the tapes to be open for public inspection. We agree.
Even though DPS is not required to make tape recordings of its hearings, since DPS has chosen to make them, and since the tapes contain facts concerning the arrest of the individual who was the subject of the hearing, DPS is required to make these tapes available to the public.
DPS argues that if the tape recording is found to be a law enforcement record, DPS would be allowed to destroy the records under 51 O.S.Supp.2003, § 24A.8(C), which provides:
"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."
We have established that the tape recordings of these administrative hearings are permitted, not required, by statute. We have further established that the tape is a law enforcement record. If there is no other legal requirement for keeping the tape recording, DPS is not required to keep it.
Fabian answers that the Records Management Act, 67 O.S.2001, § 201, et seq., is the legal requirement provided for preserving the tape, once it is made. Section 209 of that act provides:
"All records made or received by or under the authority of or coming into the custody, control or possession of public officials of this state in the course of their public duties shall not be mutilated, destroyed, transferred, removed, altered or otherwise damaged or disposed of, in whole or in part, except as provided by law."
The Records Management Act defines "record" in 67 O.S.2001, § 203(a) and provides in pertinent part:
"'Record" means document, book, paper, photograph, microfilm, computer tape, disk, record, sound recording, film recording, video record or other material, regardless of physical form or characteristics, made or received pursuant to law or ordinance or in connection with
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