Question Submitted by: The Honorable Scott C. Martin, State Representative, District 46

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Question Submitted by: The Honorable Scott C. Martin, State Representative, District 46

2014 OK AG 1

Decided: 01/13/2014

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.

I.

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).

II.

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); s ee 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.25 1 and 24A.29 for

withholding or removing of pleadings or other material from a public

record.

III.

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

FOOTNOTES

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.

Citationizer © Summary of Documents Citing This Document

Cite

Name

Level

None Found.

Citationizer: Table of Authority

Cite

Name

Level

Oklahoma Court of Criminal Appeals Cases

Cite Name Level

2001 OK CR 35, 38 P.3d 228, 72 OBJ 3717, NICHOLS v. JACKSON Cited

Oklahoma Supreme Court Cases

Cite Name Level

2002 OK 65, 55 P.3d 1044, NICHOLS v. JACKSON Cited

2004 OK 67, 100 P.3d 703, FABIAN & ASSOCIATES, P.C. v. STATE ex rel. DEPT. OF PUBLIC SAFETY Discussed

1996 OK 76, 921 P.2d 333, 67 OBJ 2232, Chickasaw Telephone Co. v. Drabek Cited

Title 12. Civil Procedure

Cite Name Level

12 O.S. 22, District Court Clerk Shall Keep Certain Records Discussed

12 O.S. 32.1, Contents of Record Cited

Title 20. Courts

Cite Name Level

20 O.S. 106.4, Methods and Duties of Court Reporter Cited

Title 51. Officers

Cite Name Level

51 O.S. 24A.3, Definitions Discussed at Length

51 O.S. 24A.1, Short Title Discussed

51 O.S. 24A.2, Political Power - Public Policy and Purpose of Act Discussed at Length