Opinion No. (1988) ( 1988 )

RE: DISPOSITION OF RECORDS OF DEPARTMENT OF PUBLIC SAFETY

I HAVE RECEIVED YOUR MEMORANDUM DATED MARCH 8, 1988, IN WHICH YOU ASKED, IN EFFECT, THE FOLLOWING QUESTION:

WHO HAS THE ULTIMATE AUTHORITY TO DESTROY RECORDS OF THE DEPARTMENT OF PUBLIC SAFETY: THE ARCHIVES AND RECORDS COMMISSION OR THE COMMISSIONER OF PUBLIC SAFETY?

PLEASE NOTE THAT THIS RESPONSE TO YOUR QUESTION IS MY INFORMAL OPINION AND SHOULD NOT BE CONSTRUED AS AN OFFICIAL ATTORNEY GENERAL OPINION CONCERNING THIS MATTER.

THE OKLAHOMA LEGISLATURE CREATED THE ARCHIVES AND RECORDS COMMISSION (HEREINAFTER SOMETIMES REFERRED TO AS THE "COMMISSION") IN 1947 AND DELEGATED TO IT "THE SOLE, ENTIRE AND EXCLUSIVE AUTHORITY OF THE DISPOSITION FOR ALL PUBLIC RECORDS AND ARCHIVES OF STATE OFFICES, DEPARTMENTS, BOARDS, COMMISSIONS, AGENCIES, AND INSTITUTIONS OF THIS STATE," PURSUANT TO 74 O.S. 564 (1947). THE CURRENT VERSION OF 564 GIVES THE COMMISSION THE SAME AUTHORITY, AND THE SECRETARY OF THE COMMISSION IS REQUIRED TO EXAMINE THE AFOREMENTIONED STATE ENTITIES' DOCUMENTS, RECORDS, PAPERS AND ARCHIVES TO DETERMINE WHETHER SUCH ITEMS SHOULD BE PRESERVED, DESTROYED OR SOLD AS WASTE, OR DESTROYED AFTER MICROFILMING THE ORIGINALS; SEE 74 O.S. 572(A) (1981). NO PRIVILEGED OR CONFIDENTIAL DOCUMENT, RECORD, PAPER OR ARCHIVES MAY BE WITHHELD FROM EXAMINATION BY THE SECRETARY OF THE COMMISSION; SEE 74 O.S. 572(B) (1981). IN ADDITION, NO AGENCY MAY DESTROY OR OTHERWISE DISPOSE OF ANY RECORDS, UNLESS THE ADMINISTRATOR OF THE COMMISSION DETERMINES THAT THE RECORD HAS NO FURTHER ADMINISTRATIVE, LEGAL, FISCAL, RESEARCH, OR HISTORICAL VALUE; SEE 67 O.S. 210 (1981).

"RECORD" IS DEFINED AS ANY "DOCUMENT, BOOK, PAPER, PHOTOGRAPH, SOUND RECORDING OR OTHER MATERIAL, REGARDLESS OF PHYSICAL FORM OR CHARACTERISTICS, MADE OR RECEIVED IN CONNECTION WITH THE TRANSACTION OF OFFICIAL BUSINESS "BUT DOES NOT INCLUDE "LIBRARY AND MUSEUM MATERIAL MADE OR ACQUIRED AND PRESERVED SOLELY FOR REFERENCE OR EXHIBITION PURPOSES, EXTRA COPIES OF DOCUMENTS PRESERVED ONLY FOR CONVENIENCE OR REFERENCE, OR STOCKS OR PUBLICATIONS AND OF PROCESSED DOCUMENTS;" SEE 67 O.S. 153(B) AND 67 O.S. 203(A) (1981).

HOWEVER, IN 1961 THE LEGISLATURE ENACTED 47 O.S. 211(B) (1947) WHICH PROVIDES THAT "(T) HE COMMISSIONER OF PUBLIC SAFETY (HEREINAFTER SOMETIMES REFERRED TO AS THE "COMMISSIONER OF DPS" OR "COMMISSIONER") MAY DESTROY ANY RECORDS OF THE DEPARTMENT (OF PUBLIC SAFETY) WHICH HAVE BEEN MAINTAINED ON FILE FOR FIVE (5) YEARS WHICH HE MAY DEEM OBSOLETE AND OF NO FURTHER SERVICE IN CARRYING OUT THE POWERS AND DUTIES OF THE DEPARTMENT. N (EMPHASIS ADDED.) FURTHERMORE, SINCE 1961 THE COMMISSIONER HAS BEEN EMPOWERED TO AUTHORIZE THE DISPOSAL, ARCHIVAL STORAGE, OR DESTRUCTION OF ANY OR ALL RECORDS KEPT BY THE DEPARTMENT OF PUBLIC SAFETY WHICH THE COMMISSIONER CAUSES TO BE PHOTOGRAPHED, MICROPHOTOGRAPHED, PHOTOSTATED OR REPRODUCED ON FILM AND PLACED IN CONVENIENTLY ACCESSIBLE FILES; SEE 47 O.S. 6-117(C) (1987).

MOREOVER, IN 1985, THE LEGISLATURE AMENDED 21 O.S. 590 (1981) TO PROVIDE AS FOLLOWS:

"A. EVERY STATE GOVERNMENTAL ENTITY SHALL, FOR A PERIOD OF TWO (2) YEARS, MAINTAIN ACCURATE AND COMPLETE RECORDS, AS DEFINED IN SECTION 203 OF TITLE 67 O.S. 203 OF THE OKLAHOMA STATUTES, REFLECTING ALL FINANCIAL AND BUSINESS TRANSACTIONS, WHICH RECORDS SHALL INCLUDE SUPPORT DOCUMENTATION FOR EACH TRANSACTION. NO SUCH RECORDS SHALL BE DISPOSED OF FOR THREE (3) YEARS THEREAFTER, EXCEPT UPON A UNANIMOUS VOTE OF THE MEMBERS OF THE ARCHIVES AND RECORDS COMMISSION PURSUANT TO SECTION 565 OF TITLE 74 O.S. 565 OF THE OKLAHOMA STATUTES, OR UPON A MAJORITY VOTE OF THE MEMBERS OF THE COMMISSION FOR RECORDS MORE THAN FIVE (5) YEARS OLD. THE DISPOSITION OF SUCH RECORDS SHALL BE IN ACCORDANCE WITH THE PROVISIONS OF SECTIONS 564 THROUGH 576 OF TITLE 74 OF THE OKLAHOMA STATUTES, PROVIDED ALL STATE OR FEDERAL AUDITS HAVE BEEN COMPLETED, UNLESS SUCH AUDITS REQUEST SUCH RECORDS TO BE MAINTAINED FOR SOME GIVEN PERIOD OF TIME.

B. ANY PERSON WHO WILLFULLY VIOLATES THE PROVISIONS OF THIS SECTION SHALL BE GUILTY OF A FELONY, PUNISHABLE BY IMPRISONMENT IN THE STATE PENITENTIARY FOR A PERIOD OF NOT MORE THAN THREE (3) YEARS OR BY A FINE OF NOT MORE THAN FIVE THOUSAND DOLLARS ($5,000.00), OR BY BOTH SUCH FINE AND IMPRISONMENT. ANY PERSON CONVICTED OF ANY SUCH VIOLATION WHO HOLDS ANY ELECTIVE OR APPOINTIVE PUBLIC OFFICE SHALL ALSO BE SUBJECT TO IMMEDIATE REMOVAL FROM OFFICE."

THE ANSWER TO YOUR QUESTION INVOLVES CONSTRUCTION OF THE FOREGOING STATUTES WHICH APPARENTLY CONFLICT AS FOLLOWS:

"1. TITLE 74 O.S. 654 (1987) GIVES THE COMMISSION SOLE, ENTIRE AND EXCLUSIVE AUTHORITY OF THE DISPOSITION FOR ALL PUBLIC RECORDS . . . OF STATE . . . AGENCIES"; HOWEVER, 47 O.S. 211(B) (1987) GIVES THE COMMISSIONER OF DPS AUTHORITY TO DISPOSE OF ANY OR ALL RECORDS KEPT BY THE DEPARTMENT OF PUBLIC SAFETY FOR MORE THAN 5 YEARS WHICH THE COMMISSIONER DEEMS OBSOLETE, AND 47 O.S. 6-117(C) (1987) GIVE THE COMMISSIONER POWER TO DESTROY ANY AND ALL DPS RECORDS KEPT FOR ANY LENGTH OF TIME WHICH THE COMMISSIONER CAUSES TO BE PHOTOGRAPHED OR OTHERWISE FILMED AND PLACED IN CONVENIENTLY ACCESSIBLE FILES; AND

2. TITLE 47 O.S. 6-117 EMPOWERS THE COMMISSIONER OF DPS TO AUTHORIZE THE DISPOSAL, ARCHIVAL STORAGE OR DESTRUCTION OF THE ORIGINALS OF ANY OR ALL DPS RECORDS, INCLUDING RECORDS MAINTAINED LESS THAN FIVE (5) YEARS, IF THE COMMISSIONER HAS THE ORIGINAL RECORDS REPRODUCED AND PLACED IN CONVENIENTLY ACCESSIBLE FILES; HOWEVER, 21 O.S. 590 REQUIRES ALL STATE AGENCIES TO MAINTAIN ALL BUSINESS AND FINANCIAL RECORDS FOR AT LEAST TWO (2) YEARS AND PROHIBITS THEIR DESTRUCTION, IF LESS THAN FIVE (5) YEARS OLD, WITHOUT A UNANIMOUS VOTE BY THE MEMBERS OF THE COMMISSION AUTHORIZING THEIR DESTRUCTION."

AS A GENERAL RULE, STATUTES THAT ARE APPARENTLY CONTRADICTORY ARE TO BE INTERPRETED IN A MANNER TO GIVE EFFECT TO ALL OF THEM IF POSSIBLE; CITICORP SAVINGS AND TRUST CO. V. BANKING BD. OF STATE OF OKLAHOMA, 704 P.2D 490 (OKLA. 1985). HOWEVER, WHERE STATUTES UNAVOIDABLY CONFLICT AND CANNOT BE REASONABLY INTERPRETED TO EFFECTUATE ALL OF THE STATUTORY PROVISIONS, THE STATUTE MOST RECENTLY ENACTED CONTROLS; TRAVELERS INS. CO. V. PANAMA-WILLIAMS. INC., 597 F.2D 702 (10TH CIR. 1979); SEE ALSO STATE EX REL. MURPHY V. BOUDREAU, 652 P.2D 531 (OKLA. 1982); AND SMITH V. STATE, 626 P.2D 1357 (OKLA. CRIM. APP. 1981).

FURTHERMORE, WHERE THERE ARE TWO STATUTORY PROVISIONS, ONE OF WHICH IS SPECIAL AND CLEARLY INCLUDES THE MATTER IN CONTROVERSY, AND PRESCRIBES SOMETHING DIFFERENT FROM THE GENERAL STATUTE, THE SPECIAL STATUTE, AND NOT THE GENERAL STATUTE, APPLIES; CITY OF TULSA V. SMITTLE, 702 P.2D 367 (OKLA. 1985); SEE ALSO INDEPENDENT SCHOOL DISTRICT NO. 1 OF TULSA COUNTY V. BD. OF COUNTY COMMISSIONERS OF TULSA COUNTY, 674 P.2D 547 (OKLA. 1983); AND SOUTHWESTERN BELL TELEPHONE CO. V. OKLAHOMA COUNTY EXCISE BD., 628 P.2D 915 (OKLA. 1980).

HOWEVER, ALTHOUGH THE GENERAL RULE IS THAT THE LATEST ENACTMENT IN POINT OF TIME WILL ORDINARILY PREVAIL IN CASE OF CONFLICT, WHERE THE GENERAL TERMS OR EXPRESSIONS IN ONE PART OF A STATUTE ARE INCONSISTENT WITH MORE SPECIFIC OR PARTICULAR PROVISIONS IN ANOTHER PART, THE PARTICULAR PROVISIONS WILL BE GIVEN EFFECT, AS CLEARER AND MORE DEFINITE EXPRESSIONS OF THE LEGISLATIVE WILL; REA V. BIG CHIEF DRILLING CO., 673 P.2D 515 (OKLA. APP. 1983).

IN COMPARING THE STATUTES IN QUESTION AND UTILIZING THE RULES OF STATUTORY CONSTRUCTION AS PRONOUNCED BY THE SUPREME COURT OF OKLAHOMA, IT IS CLEAR THAT: (1) THE STATUTES REGULATING DPS I.E., 47 O.S. 211(B) AND 47 O.S. 6-117(C)-(E), ARE MORE RECENT A ND MORE SPECIFIC THAN THE STATUTES REGULATING THE COMMISSION (I.E., 67 O.S. 201, ET SEQ.) CONCERNING DESTRUCTION OF DPS RECORDS; AND (2) 21 O.S. 590 (1987) IS THE MOST RECENT AND MOST SPECIFIC OF ALL OF THE AFOREMENTIONED STATUTES CONCERNING DISPOSITION AND DESTRUCTION OF STATE GOVERNMENTAL ENTITIES' RECORDS OF FINANCIAL AND BUSINESS TRANSACTIONS.

THEREFORE, IT IS MY OPINION THAT:

1. DPS MUST RETAIN DPS RECORDS REFLECTING FINANCIAL AND BUSINESS TRANSACTIONS FOR AT LEAST TWO (2) YEARS;

2. THE ARCHIVES AND RECORDS COMMISSION HAS THE AUTHORITY TO DISPOSE OF DPS RECORDS REFLECTING FINANCIAL AND BUSINESS TRANSACTIONS WHICH HAVE BEEN MAINTAINED BY DPS MORE THAN TWO (2) YEARS, BUT LESS THAN FIVE (5) YEARS IF THE MEMBERS OF THE COMMISSION UNANIMOUSLY VOTE TO DO THAT;

3. THE ARCHIVES AND RECORDS COMMISSION HAS THE AUTHORITY TO DISPOSE OF DPS RECORDS REFLECTING FINANCIAL AND BUSINESS TRANSACTIONS WHICH DPS HAS MAINTAINED FOR MORE THAN FIVE (5) YEARS IF A MAJORITY OF THE COMMISSION VOTES TO DO THAT;

4. THE COMMISSIONER OF DPS MAY DESTROY NONBUSINESS, NONFINANCIAL DPS RECORDS MAINTAINED FOR LESS THAN FIVE (5) YEARS IF THE COMMISSIONER CAUSES THE ORIGINALS TO BE PHOTOGRAPHED, MICROPHOTOGRAPHED, PHOTOSTATED, OR REPRODUCED ON FILM, AND THE PHOTOSTATIC OR OTHER COPIES ARE PLACED IN CONVENIENTLY ACCESSIBLE FILES AND PROVISIONS ARE MADE FOR PRESERVING, EXAMINING AND USING THEM; AND

5. THE COMMISSIONER OF DPS MAY DESTROY NONBUSINESS, NONFINANCIAL DPS RECORDS MAINTAINED FOR MORE THAN FIVE (5) YEARS IF THE COMMISSIONER DETERMINES THEY ARE OBSOLETE AND OF NO FURTHER SERVICE IN CARRYING OUT THE POWERS AND DUTIES OF DPS.

IF YOU HAVE ANY QUESTIONS OR COMMENTS CONCERNING THIS MATTER, PLEASE DO NOT HESITATE TO CONTACT EITHER SCOTT FERN OR ME. I WILL BE HAPPY TO DISCUSS THIS MATTER WITH YOU IF YOU SO DESIRE, BUT I WILL BE OUT OF THE OFFICE THE WEEK OF APRIL 11 — 15, 1987.

(KATHLYN A. RHODES)