Question Submitted by: The Honorable Mike Ritze, State Representative, District 80

OSCN Found Document:Question Submitted by: The Honorable Mike Ritze, State Representative, District 80

OSCN navigation

Home

Courts

Court Dockets

Legal Research

Calendar

Help

Previous Case

Top Of Index

This Point in Index

Citationize

Next Case

Print Only

Question Submitted by: The Honorable Mike Ritze, State Representative, District 80

2015 OK AG 2

Decided: 05/04/2015

Oklahoma Attorney General Opinions

Cite as: 2015 OK AG 2, __ __

¶0 This office has received your request for an official Attorney General

Opinion in which you ask, in effect, the following questions:

1. Does the

State Treasurer have legal authority to keep information regarding unclaimed

property confidential under the Uniform Unclaimed Property Act or the Oklahoma

Open Records Act in response to a disclosure request?

2. What information

obtained in the course of the State Treasurer's administration of the Uniform

Unclaimed Property Act may or must be kept confidential by law?

3. Does the

State Treasurer have legal authority under the Uniform Unclaimed Property Act to

adopt administrative rules that define or limit the scope of confidentiality

accorded to information regarding unclaimed property?

4. May the State

Treasurer share otherwise confidential information with other entities,

including States, in the course of administering the Uniform Unclaimed Property

Act?

5. Does the payment of monies from the Unclaimed Property Fund affect

any confidentiality accorded to information related to those payments?

¶1 Because your request involves the Uniform Unclaimed Property Act ("UPA"),

60 O.S.2011 & Supp.2014, §§ 651-688, we briefly review the general purpose

of the Act to provide some context. The UPA provides a comprehensive system for

handling unclaimed property presumed to be abandoned. Under the statutory

framework, individuals or entities holding unclaimed property must file reports

on and transfer such property to the State after a defined length of time during

which the true owner has not claimed the property or had contact with the

holder. Id . §§ 661(A), 664(A). The periods of time run for several years

depending on the exact type of property. E.g. , 60 O.S.2011, § 652(A) (setting a period of

five years for most types of bank accounts); id. § 657.4(A) (setting a

period of three years for intangible property such as securities).

¶2 Once transferred to the State, the Treasurer--statutorily tasked with

administration of the UPA, e.g. , id. §§ 669, 672, 688(A)--must

take steps to safeguard the property (or its value after sale) and make it

available for the true owner, id . §§ 667(A), 668(A), 674(A). The UPA thus

protects property owners by providing an orderly system for them to recover

their property. Further, the Act ensures that the State and the general public

receive the benefits of such property rather than allowing the holder of such

property to reap windfalls from their customers. See 1 Am.Jur.2d

Abandoned, Lost, & Unclaimed Property § 44 (2015) (citing Douglas

Aircraft Co. v. Cranston , 374 P.2d 819, 821 (Cal. 1962)). Your questions

involve the State Treasurer's obligations of confidentiality regarding

information obtained as part of the administration of this system. We consider

each question in turn below.

I.

The State Treasurer Does Have Legal Authority Under the Uniform

Unclaimed Property Act and Under the Oklahoma Open Records Act to Keep Certain

Information Confidential, Including Holder Reports, Claimant Information,

Investigatory Reports, and any Other Information Required or Allowed to be Kept

Confidential by Law.

¶3 You first ask whether the State Treasurer has any authority to keep

records confidential and, if so, you also ask what information may be kept

confidential. Your question implicates the Oklahoma Open Records Act ("Open

Records Act"), 51 O.S.2011 &

Supp.2014, §§ 24A.1 -24A.30, which imposes a general requirement that the

"records" of "public bodies" and "public officials" must be made available to

individuals who request them. 51 O.S.2011, § 24A.5.

¶4 The Act's general disclosure requirement applies to the Treasurer. Under

the Open Records Act, records include "all documents" whether in the form of a

"book, paper, photograph, microfilm, data file[] created by or used with

computer software," and more so long as they are "created by, received by, under

the authority of, or coming into the custody, control or possession of public

officials." 51 O.S.Supp.2014, §

24A.3(1). "Public bod[ies]" include any "office, department, board, bureau,

commission, . . . executive office" or other listed entity "supported in whole

or in part by public funds or entrusted with the expenditure of public funds or

administering or operating public property," while "public official[s]" include

officials or employees of a public body. Id. § 24A.3(2), (4). The

Treasurer constitutes both a public body, id . § 24A.3(2) (defining public

body to include an "executive office . . . supported in whole or in part by

public funds"), and a public official, id. § 24A.3(4) (defining public

official to include "any official . . . of any public body").

¶5 Therefore, the Treasurer has a basic obligation to make disclosure

available for all records received by the Treasurer, all records under his or

her authority, and anything else otherwise satisfying the definition of "record"

under the Open Records Act. 1 Despite the breadth of this basic disclosure

obligation, however, various provisions of the Open Records Act and the UPA

create exceptions to this general requirement and thereby authorize or even

require confidentiality. Thus, we conclude that the Treasurer does have the

authority to keep certain records confidential, and we discuss relevant

categories of confidential information below.

A. Several confidentiality and publication rules of the Open Records Act

create limitations on the State Treasurer's basic disclosure obligation.

¶6 To begin, the Open Records Act contains several exceptions that render its

disclosure requirements inapplicable to particular records. 51 O.S.2011, § 24A.5. One set of exceptions

includes records required by law to be kept confidential such as those protected

by unwaived state evidentiary privileges, the minutes of executive sessions held

by public bodies, driving records, and confidential medication information.

See id . § 24A.5(1) ("The [Act] . . . does not apply to records

specifically required by law to be kept confidential[.]"). The Open Records Act

also contains numerous provisions allowing public officials to keep otherwise

open records confidential. These provisions allow for the confidentiality of

some information found in public employee personnel records, 51 O.S.Supp.2014, § 24A.7(A), certain personal

notes of public officials, 51 O.S.2011, § 24A.9, and more,

51 O.S.2011 & Supp.2014, §§

24A.10a, 24A.11, 24A.13-24A.16a, 24A.19, 24A.22-24A.24, 24A.27-24A.28 (creating

various exceptions to the Act). The Open Records Act also contains a litigation

file and investigatory report provision, which allows authorized agency

attorneys and the Oklahoma Attorney General to keep litigation files and

investigatory reports confidential. 51 O.S.2011, § 24A.12. To the extent authorized

attorneys have such files on behalf of the Treasurer when administering the

unclaimed property system, this exception would apply.

B. Several confidentiality and publication rules of the UPA also create

limitations on the State Treasurer's basic disclosure obligation.

¶7 The UPA has several provisions affecting confidentiality and disclosure.

First, the UPA requires that the State Treasurer arrange for publication of a

list of the names and last known addresses of persons thought to have a claim to

property in the system. 60 O.S.2011, § 662. Because this list must

be published, the names and last known addresses of true owners clearly could

not be kept confidential. This information generally comes to the Treasurer

through reports filed by holders. The provision requiring holders to file

reports listing unclaimed property also requires that these reports remain

confidential except for the required-to-be-disclosed names and addresses.

60 O.S.Supp.2014, §

661(F). Thus, apart from the information that must be published, the reports

themselves must remain confidential.

¶8 Second, the UPA also provides for confidentiality of certain information

when a person files a claim in the unclaimed property system. The UPA grants the

Treasurer the following authority:

Any information submitted by a claimant . . . may be kept confidential by the

State Treasurer if it contains personal financial information of the claimant,

social security numbers, birth certificates . . . or any other document which is

confidential by statute if in the custody of another public agency or

person.

60 O.S.2011, § 674(A). Thus, a disclosure

request directed to records containing information about claimants could be

rejected by the Treasurer under this statutory provision.

¶9 While claimant information must generally be kept confidential, the UPA

also allows for the Treasurer to hold a hearing under the Administrative

Procedures Act to determine whether a claim should be paid. Id. § 675(A).

When the Treasurer holds such a hearing, the Treasurer must prepare a written

document with findings of fact and a decision as to the validity of all claims

filed and considered at the hearing. See id . The UPA specifically

provides that the written decision becomes a "public record," lifting

confidentiality requirements for any information included in the document.

Id . In other words, claimant information generally remains confidential

if it satisfies the statutory requirements, but it becomes public if included in

a written decision on the validity of a claim after an Administrative Procedures

Act hearing.

¶10 The UPA therefore contains several provisions dealing with

confidentiality and disclosure that constitute part of the relevant legal

framework for information requests. Still other legal provisions external to the

Open Records Act and the UPA may also apply.

C. The UPA and the Open Records Act both reference external law as a source

of confidentiality, which may further limit the State Treasurer's basic

disclosure obligation.

¶11 Other provisions of law could require that records be kept confidential.

The Open Records Act states that it does not apply to records where those

records are "specifically required by law to be kept confidential"; the

provision goes on to list examples of those laws requiring confidentiality,

including the evidentiary privilege exception mentioned above. 51 O.S.2011, § 24A.5(1). Further, as also

noted above, the UPA provides that information submitted by claimants "may be

kept confidential" in circumstances involving personal financial information,

social security numbers, or "any other document which is confidential by

statute if in the custody of another public agency or person ."

60 O.S.2011, § 674 (emphasis added).

External provisions of law can thus prevent disclosure directly under the Open

Records Act or create an obligation of confidentiality under the UPA.

¶12 The Financial Privacy Act is one notable example of outside law. 6

O.S.2011, §§ 2201-2208. That Act requires certain financial institutions to

maintain the confidentiality of their customers' personal information in the

face of disclosure requests from "government authorit[ies]" except upon written

consent or a subpoena valid under the Act. Id. § 2203. The Oklahoma

Supreme Court has interpreted this confidentiality obligation to extend to

discovery in litigation between private parties because any judge ordering such

discovery would qualify as a "government authority." Alva State Bank &

Trust Co. v. Dayton , 1988 OK 44, ¶¶ 1, 5, 755 P.2d 635, 635-36. The Court has further determined

that this statute applies to financial institutions engaged in the unclaimed

property system: financial institutions must share information with the

Treasurer under the Act's provisions relating to regulatory oversight and,

without those provisions, the Treasurer would be required to obtain a subpoena.

See Lincoln Bank & Trust Co. v. Okla. Tax Comm'n , 1992 OK 22 ¶¶ 9-14, 827 P.2d 1314, 1319-22. Although information obtained

from covered financial institutions about presumably abandoned property would be

handled by the Treasurer in the manner described in Part I(B) above, that

information would remain confidential if the Act's abandonment requirements were

not satisfied. Id. ¶¶ 11-14, 13 n.38, 827 P.2d at 1321-22, 1321 n.38.

Hence, beyond the publication, disclosure, and confidentiality rules included in

the Open Records Act and the UPA, any provision of law like the Financial

Privacy Act could potentially trigger the Treasurer's confidentiality

obligations.

II.

The State Treasurer has Legal Authority Under the UPA to Adopt

Administrative Rules Clarifying Confidentiality Requirements Under the Act, but

the State Treasurer May Not Adopt any Rules Contrary to Law. This Opinion Does

Not Address Whether Current Regulations are Consistent With the UPA.

¶13 Your third question involves the authority of the State Treasurer to

create administrative rules that interact with the confidentiality requirements

mentioned above. The Treasurer clearly has authority under the UPA to enact

administrative rules "necessary . . . to carry out the provisions of the [UPA] .

. . in accordance with the Administrative Procedures Act." 60 O.S.2011, § 681. This rulemaking

authority allows the Treasurer to clarify confidentiality rules associated with

the administration of the unclaimed property system. In fact, the Treasurer has

exercised this authority in the context of confidentiality, see OAC

735:80-1-5, although this opinion does not address the validity of the

regulations currently enacted by the Treasurer.

¶14 However, we observe that the Treasurer does not have the authority to

enact administrative rules contrary to the Oklahoma statutes. In other words,

the Treasurer may adopt rules regarding confidentiality in order to resolve

ambiguity, but the Treasurer may not create confidentiality where none otherwise

exists. A clarifying interpretation could be entitled to the "highest respect

from the courts" if such a rule becomes the subject of litigation, but any

interpretation by the Treasurer "must [be] reasonable and not clearly wrong."

Indep. Fin. Inst. v. Clark , 1999 OK 43, ¶ 13, 990 P.2d 845, 851. One unreasonable interpretation of

the UPA's confidentiality provisions would be to contravene a clear, binding

provision of law. Hence, the Treasurer can clarify or define the confidentiality

and disclosure rules governing his or her administration of the UPA, but the

Treasurer may not contravene clear, binding law. This opinion does not address

the validity of the Treasurer's current regulations.

III.

The State Treasurer has Legal Authority Under the UPA to Share

Otherwise Confidential Information in Very Limited Circumstances Such as With

Other States.

¶15 Your fourth question asks whether, notwithstanding an otherwise binding

confidentiality obligation, the State Treasurer may share information with other

entities, including other States, in order to properly administer the UPA. We

first note that the Act must allow disclosure to persons outside the Treasurer's

office as a matter of common sense lest the Act be reduced to a dead letter. As

the Oklahoma Supreme Court has noted, a "statute will be given a reasonable and

sensible construction: one that will reconcile its provisions and avoid

inconsistencies and absurdities." City of Jenks v. Stone ,

2014 OK 11, ¶ 15, 321 P.3d 179, 183. For example, the Treasurer may have

to engage with holders concerning otherwise confidential information as part of

examinations, see 60 O.S.2011, § 678; the Treasurer may need

to communicate otherwise confidential information to claimants as part of the

process of determining whether to make payments, see id. §§ 674,

675; the Treasurer may need to disclose information for the sake of enforcing

provisions or rights in court, see, e.g., id. § 679(A); and the Treasurer

may have to share confidential information with an attorney when receiving

services from an attorney not employed within the Treasurer's own office.

¶16 Second, the Act also allows the Treasurer to make agreements to exchange

information with other States' unclaimed property administrators in order to

ensure that the proper government takes custody of unclaimed property.

Id. § 683.1(A). The UPA itself contains provisions regarding which States

should take custody of property, id. § 684.1(A). Therefore, sharing

information with other States is crucial to the Act's effectiveness.

Additionally, according to the United States Supreme Court, federal law preempts

state law when a determination of custodial taking of unclaimed property between

States must be made-resolving serious past controversies between States and

raising the importance of proper channels of communication between States.

See Am. Petrofina Co. v. Nance , 697 F.Supp. 1183, 1187-88 (W.D. Okla.

1986) (citing Texas v. New Jersey , 379 U.S. 674 (1965)) (striking down

Oklahoma's provisions governing priority as preempted by federal law). The

Legislature thus had important reasons for ensuring that the Treasurer had the

authority to share information with other States.

¶17 Given the breadth of confidentiality for holder reports and claimant

information discussed above, it would also be an untenable reading of the

statute if all of the normal rules of confidentiality applied: the Treasurer

would essentially only be able to share with other States the name and last

known address of an owner. This would not fulfill the objectives of information

sharing in ensuring that the appropriate State receives custody of unclaimed

property. The Treasurer can, therefore, share otherwise confidential information

with other States pursuant to a valid agreement under the Act.

¶18 In light of the above considerations, the Treasurer does have the

authority to share otherwise confidential information with a very narrow class

of other parties. The Treasurer may communicate information to parties

necessarily included in a reasonable application of the UPA, including the

agency's attorneys and those parties who submit information in the first place.

Other persons making requests would not be entitled to information under the

Act's confidentiality obligations. Further, the Treasurer has the authority to

share otherwise confidential information with other States' unclaimed property

administrators.

IV.

The Payment of Monies From the Unclaimed Property Fund Does not

Affect the Requirement of Confidentiality That has Attached to Information

Related to the Basis For Such Payments, But a Hearing on the Validity of a Claim

Does Result in a Decision Deemed a Public Record.

¶19 Your fifth and last question asks whether a payment from the Unclaimed

Property Fund extinguishes confidentiality requirements attached to information

providing the basis for payment. In some circumstances, the decision to pay a

claim may coincide with circumstances requiring the extinguishment of

confidentiality obligations, but in other circumstances it would not.

Specifically, as noted above, the Treasurer may hold a hearing

under the Administrative Procedures Act to determine whether a claim against

unclaimed property should be considered valid. 60 O.S.2011, § 675(A). The UPA requires that

a written decision be prepared after such hearings, and these decisions must

become public records--they are no longer confidential. Id . But other

information about the claimant not included in the written decision does not

become public under the Act. See id . Further, no provision of law

otherwise requires disclosure of the confidential information obtained from or

about a claimant just because that claimant has had his/her property returned to

him/her. Thus, if the Treasurer does not hold a hearing on the validity of the

claim, nothing extinguishes the confidentiality attaching to a claimant's

information even if the Treasurer pays the claim.

V.

Conclusion

¶20 We have discussed the Uniform Unclaimed Property Act, the Oklahoma Open

Records Act, and other provisions of law related to your questions about

confidentiality in the administration of the unclaimed property system. These

provisions of law create a system that thoroughly protects the confidentiality

of personal information while publishing the name and last known address of the

true owners of property in order for them to have notice of the existence of

their claims.

¶21 It is, therefore, the official Opinion of the Attorney General that:

1. The State Treasurer has legal authority under the Uniform Unclaimed

Property Act, 60 O.S.2011 & Supp.2014, §§ 651-688, and under the Oklahoma

Open Records Act, 51 O.S.2011 & Supp.2014, §§

24A.1 -24A.30, to keep certain information confidential.

2. The State Treasurer has the authority to maintain the confidentiality of

holder reports, 60 O.S.Supp.2014, § 661 (F), certain claimant

information, id. § 674(A), litigation files and investigatory reports,

51 O.S.2011, §

24A.12 , and any other information where confidentiality would be allowed or

required by law, id. § 24A.5.

3. The State Treasurer has legal authority under the Uniform Unclaimed

Property Act to adopt administrative rules clarifying confidentiality

requirements under the Act, 60 O.S.2011, § 681 , but the State Treasurer

may not adopt any rules contrary to law. This Opinion does not address whether

current regulations are consistent with the Uniform Unclaimed Property Act.

4. The State Treasurer has legal authority under the Uniform Unclaimed

Property Act to share otherwise confidential information in very limited

circumstances, such as with other States. E.g., 60 O.S.2011, § 683.1 .

5. The payment of monies from the Unclaimed Property Fund does not affect the

requirement of confidentiality that attaches to information related to the basis

for such payments, but a hearing on the validity of a claim results in a

decision deemed a public record. 60 O.S.2011, § 675 (A).

E. SCOTT PRUITT

Attorney General of Oklahoma

JARED HAINES

Assistant Solicitor General

FOOTNOTES

1 The Open Records Act may

not have always so straightforwardly applied to the administration of the UPA.

In Tulsa Tribune Co. v. Okla. Horse Racing Comm'n , 1986 OK 24, 735 P.2d 548, the Oklahoma Supreme Court interpreted

the Open Records Act to require individuals whose information would be subject

to release to have an opportunity to object that such a disclosure would invade

the individual's privacy or damage the individual's commercial interests .

Id., 1986 OK at ¶¶ 12-15, 735 P.2d at 555. The Court subsequently applied the

Tulsa Tribune holding to the UPA. Merrill v. Okla. Tax Comm'n ,

1992 OK 53, ¶¶ 1-4, 831 P.2d 634, 640-41. However, the Tulsa Tribune

interpretation was superseded by statute. Okla. Pub. Emp. Ass'n v. State

ex rel. Okla. Office of Pers. Mgmt. , 2011 OK 68, ¶ 4 n.5, 267 P.3d 838, 842 n.5 (citing City of Lawton v.

Moore , 1993 OK

168, 868 P.2d

690). Tulsa Tribune thus has no bearing on the UPA

today.

Citationizer © Summary of Documents Citing This Document

Cite

Name

Level

None Found.

Citationizer: Table of Authority

Cite

Name

Level

Oklahoma Supreme Court Cases

Cite Name Level

1988 OK 44, 755 P.2d 635, 59 OBJ 1159, Alva State Bank and Trust Co. v. Dayton Discussed

1992 OK 22, 827 P.2d 1314, 62 OBJ 3115, Lincoln Bank and Trust Co. v. Oklahoma Tax Com'n Discussed

1992 OK 53, 831 P.2d 634, 63 OBJ 1291, Merrill v. Oklahoma Tax Com'n Discussed

1993 OK 168, 868 P.2d 690, 65 OBJ 55, City of Lawton v. Moore Discussed

2011 OK 68, 267 P.3d 838, OKLA. PUBLIC EMPLOYEES ASSOC. v. STATE ex rel. OKLA. OFFICE OF PERSONNEL MANAGEMENT Discussed

2014 OK 11, 321 P.3d 179, CITY OF JENKS v. STONE Discussed

1999 OK 43, 990 P.2d 845, 70 OBJ 1560, Independent Finance Institute v. Clark Discussed

1986 OK 24, 735 P.2d 548, 57 OBJ 1323, Tulsa Tribune Co. v. Oklahoma Horse Racing Com'n Discussed

Title 51. Officers

Cite Name Level

51 O.S. 24A.3, Definitions Cited

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

51 O.S. 24A.5, Open and Confidential Records Discussed at Length

51 O.S. 24A.7, Confidential Personnel Records of Public Body Cited

51 O.S. 24A.9, Confidential Personal Notes and Personally Created Materials of Public Official Making Recommendation Cited

51 O.S. 24A.10a, Confidential Market Research and Marketing Plans Cited

51 O.S. 24A.12, Confidential Litigation Files and Investigatory Reports Discussed

Title 60. Property

Cite Name Level

60 O.S. 652, Property Held by Banking or Financial Organizations Cited

60 O.S. 661, Report of Abandoned Property Discussed

60 O.S. 662, Notice and Publication of Lists of Abandoned Property Cited

60 O.S. 674, Claim of Interest in Abandoned Property Discussed

60 O.S. 675, Determination of Claims - Payment - Claims Against Mineral Owner's Fund Discussed

60 O.S. 678, Failure to Report Property - Examination of Records Cited

60 O.S. 681, Rules and Regulations - Adoption by Commission Discussed

60 O.S. 683.1, Agreements to Exchange Information Cited