Opinion No. 71-333 (1971) Ag ( 1971 )

DESTRUCTION OF INITIATIVE AND REFERENDUM PETITIONS

Initiative and referendum petitions either found to be insufficient and their time for lodging an appeal expired or not approved by the people at a regular or special election cannot be summarily destroyed by the Secretary of State. Being public records, application must be made to the Archives and Records Commission for authority to transfer or destroy same. The Attorney General has considered your letter of July 22, 1971, wherein you requested an opinion on the following questions: "1. May the Secretary of State destroy initiative and referendum petitions found to be insufficient and the time for lodging an appeal expired? "2. May the Secretary of State destroy initiative and referendum petitions that were not approved by the people at a regular or special election?" Title 34 O.S. 8 [34-8] (1970), provides for the filing of initiative and referendum petitions with the Secretary of State, however, no provision is made for their disposition upon either being found insufficient and time for appeal having expired, or having been rejected by the people at a regular or special election. Title 74 O.S. 565 [74-565] (1961), provides: "Every State officer and the heads of all departments, boards, commissions, agencies and institutions of the State of Oklahoma who have in their custody public records and archives deemed by them to be unnecessary for the transaction of the business of their offices shall consult with the State Librarian for the purpose of determining if such records and archives are desired for deposit in the archives division of the Oklahoma State Library. Upon certification by the State Librarian that such records and archives are or are not desired for such purpose then such custodian shall, in conformity with such determination, apply to the Commission for authorization to destroy or transfer such records and archives to the Oklahoma State Library as hereinafter provided. Upon the filing of such application the Commission shall have authority to authorize or direct the disposition of such records and archives by any one or more of the following methods: "1. By destruction; provided that no records and archives less than five (5) years old shall be destroyed. "2. By transfer to the custody and control of the Oklahoma State Library and there retained. The State Librarian may, in his discretion, micro-film such records and archives, especially if so doing would aid in the preservation of their contents. "3. By transfer to the Oklahoma State Library with authorization to the State Librarian to micro-film said records and archives and upon the completion of this process to destroy said records and archives in accordance with the order of the Commission. "Records and archives transferred to the Oklahoma State Library shall never be returned to their former custody except by order of the Commission and written consent of the State Librarian." (Emphasis added) The term " public record " is a record, memorial of some act or transaction, written evidence of something done, or document, considered as either concerning or interesting the public, affording notice of information to the public, or to open public inspection. Black's Law Dictionary, 1438 (4th Ed. 1951). Title 34 O.S. 8 [34-8] (1970), provides in part: "When a citizen or citizens desire to circulate a petition initiating a proposition of any nature, whether to become a statute law or an amendment to the Constitution, or for the purpose of invoking a referendum upon legislative enactments, such citizen or citizens shall, when such petition is prepared, and before the same is circulated of signed by electors, file a true and exact copy of same in the office of the Secretary of State and, within ninety (90) days after such filing of an initiative petition, the signed copies thereof shall be filed with the Secretary of State, but the signed copies of a referendum petition shall be filed with the Secretary of State within ninety (90) days after the adjournment of the Legislature enacting the measure on which the referendum is invoked. Any petition not filed in accordance with this provision shall not be considered. When the signed copies of a petition are timely filed with the Secretary of State, he shall make or cause to be made a physical count of the number of signatures appearing on the petitions. When the signed copies of a petition are timely filed with the Secretary of State, he shall make or cause to be made a physical count of the number of signatures appearing on the petitions. It shall then be the duty of the Secretary of State to forthwith cause to be published, in at least one newspaper of general circulation in the state, a notice of such filing and the apparent sufficiency or insufficiency thereof and notice that any citizen or citizens of the state may file a protest to the petition or an objection to the content made by the Secretary of State, by a written notice to the Secretary of State and to the person or persons filing the petition, said protest to be filed within ten (10) days after publication. . . (Emphasis added) Initiative and referendum petitions would necessarily afford notice and information to the public and be subject to inspection by citizens of the State for the information therein contained to determine if a protest to same needs to be filed; and are, therefore, public records within the purview of 74 O.S. 565 [74-565] (1961). Authority to destroy or transfer records are clearly set forth, and no other procedure is authorized. It is well established that public officers have only such authority as is conferred upon them by law, and such authority must be exercised in the manner prescribed by law. Brown v. State Election Board, Okl., 369 P.2d 140. It is, therefore, the opinion of the Attorney General that both your questions be answered in the negative. Initiative and referendum petitions either found to be insufficient and the time for lodging an appeal expired or not approved by the people at a regular or special election cannot be summarily destroyed by the Secretary of State. Being public records, application must be made to the Archives and Records Commission for authority to transfer or destroy same. (Mike D. Martin) ** SEE: OPINION NO. 78-102 (1978) **