Judges: W.A. DREW EDMONDSON, Attorney General of Oklahoma
Filed Date: 11/9/2006
Status: Precedential
Modified Date: 7/6/2016
Dear Representative Reynolds:
This office has received your request for an official Attorney General Opinion in which you ask, in effect, the following questions:
1. May the Oklahoma Ethics Commission or any state agency promulgate rules or make policy and procedures which conflict with the Oklahoma Open Records Act?
2. May the Ethics Commission refuse to allow persons with personal copiers, computers, scanners, etc. into the Ethics Commission's office to inspect, copy and/or mechanically reproduce requested documents? Included in this question is the issue of electricity used while copying documents.
3. In responding to an open records request, must the Ethics Commission or other State agencies supply the original document for inspection, copying and mechanical reproduction?
4. In light of 74 O.S. 2001, § 18b[
74-18b ], must the Attorney General issue an official Opinion when the question asked involves an issue which is pending before a court of law?
At a public meeting shortly thereafter, the Commission adopted the following policy: (1) authorizing staff to put up a sign indicating certain office areas are restricted to staff only, (2) requiring persons wanting to review or copy records to request such materials from the staff who then make any requested copies, and (3) authorizing the staff to prevent personal copiers or electronic devices from being brought into the office to be used to copy Commission records. See Minutes of Regular Meeting ofthe Ethics Commission, May 12, 2006, p. 21. As a result of this action, the first three questions were asked. To answer these questions a review of the Open Records Act and the powers of the Commission are required.
Neither the Commission nor any other state agency is authorized to adopt rules or policies that are inconsistent with provisions of state law or in excess of statutory authority granted the agency. Marley v. Cannon,
The rules of this chapter have been adopted for the purpose of complying with the provisions of the Oklahoma Constitution, Article
XXIX , Section 3(A). The purpose of this chapter is to set standards for ethical conduct for campaigns for elective state office and for campaigns for initiatives and referenda. The Commission recognizes the importance of immediate public access to publicly disclosed information. Accordingly, the Commission has implemented a system to require certain campaign finance statements and reports to be electronically filed through Internet access.
Id. (emphasis added). Since the amended rule was not disapproved by the Legislature it had the force of law at the end of the 2006 legislative session. OKLA. CONST. art.
Further, in 2005, the Commission adopted an amended rule referred to above, relating to filing of statements and reports by candidate committees on the Internet, which in pertinent part provides:
(3) The treasurer or, in the treasurer's absence, the deputy treasurer of a committee shall file, in a timely manner, the appropriate reports or statements on the forms prescribed by the Commission. Filing statements and reports by Internet access only shall be required, beginning July 1, 2006, of a candidate committee which has exceeded $20,000 in contributions or expenditures during an active campaign or a non-candidate committee which has exceeded $20,000 in contributions or expenditures during the current or previous calendar year.
74 O.S. Supp. 2006, ch. 62, app. R. 257:10-1-9(d). Thus, after July 1, 2006, all candidate funding reports involving more than $20,000 are required to be filed electronically on the Internet, thus allowing access by the public through the Commission's web site.3 In addition, the Commission has put all campaign reports filed after January 1, 2006 involving less than $20,000 on its web site,4 although it is not presently required by any Commission rule. Thus, as of July 1, 2006, persons wanting to examine or copy records of campaign contribution and spending activities filed with the Commission may have ready access to such materials over the Internet. It is our understanding that three computer terminals and a printer are now available at the Commission's offices in the public waiting area for persons to retrieve records electronically and print copies. But what of the Commission's recently adopted policy effectively restricting certain office areas to the public, restricting access to original documents and restricting use of personal copiers by the person wanting copies of paper records?
As early as 1944, long before our present Act became law, the Oklahoma Supreme Court in State ex rel. Research Institute v.Nix,
The Act does not specify the means of copying, nor does it specify who is to copy the requested material. The last sentence of Section 24A.2 states, "Except as may be required by other statutes, public bodies do not need to follow any procedures for providing access to public records except those specifically required by the Oklahoma Open Records Act." Id.
Nowhere in the Act does the law prohibit requesters of records from making copies of such records themselves, nor does it require that copies of the requested documents must be made by an employee of the public body. For years, companies or individuals have made manual notes and sometimes even microfilm of information in public records, such as recorded land title instruments. See Am. First Abstract Co. v. W. Info. Sys., Inc.,
A digital camera or an electronic scanner is a copying device, as are a pen and paper or a photocopy machine. As early as 1987, the Oklahoma Supreme Court recognized "copies" under the Act might include microfilm images or computer-compatible data. Seeid.; Merrill v. Okla. Tax Comm'n,
Security of the original documents is a separate, valid issue that must also be considered. A public body may "establish reasonable procedures which protect the integrity and organization of its records and to prevent excessive disruptions of its essential functions." 51 O.S. Supp. 2006, § 24A.5[
If persons are able to make their own copies from agency documents, what is to prevent accidental (or intentional) loss, damage or destruction of the originals? Where an agency has a duty to keep records, common sense dictates there is also a duty to keep the records organized, safe and legible, so they may be available to all who need them.5 When documents are being placed in, or on, an electronic or mechanical copying device, the possibility always exists that such documents could be damaged or misplaced in such a process. Damage or loss of documents could clearly result in the disruption of the essential functions of a public body. 51 O.S. Supp. 2006, § 24A.5[
We conclude it is altogether reasonable and proper for a public body whose records are being examined or copied by a citizen to have an agency employee be involved in this process. Supervision of inspection or copying of records becomes particularly crucial when old, fragile paper records are involved, or where the records are in an electronic format that is susceptible to modification or deletion. Careless treatment of such records could result in loss of, or damage to, irreplaceable materials.
Whether supervising a citizen's examination or copying of records, or restricting access to an agency personnel work area, is necessary in a particular situation would involve the exercise of discretion by agency officials, and would depend on the pertinent facts and circumstances. Thus, we cannot provide an opinion on such fact-dependent questions. 74 O.S. 2001, § 18b[
If a person copies a record using his or her own personal recording device we find no statutory authority for the agency maintaining such records to charge a fee for such service. However, if the agency is requested to provide copies, it may charge in accordance with schedules provided by law.6 In the case of agencies where no schedule of fees for providing copies is specified by law, charges per page are set out in Section 24A.5(3) of the Act, namely: (a) twenty-five cents per page for records 8 ½ inches by 14 inches or smaller, (b) one dollar per page for certified copies, and (c) "a reasonable fee to recover the direct cost of record search and copying" where the request is for commercial purposes, or where the request would cause excessive disruption of the essential functions of the office. Such "fees shall not be used for the purpose of discouraging requests for information or as obstacles to disclosure of requested information." Id.
As discussed earlier, a public body must provide prompt, reasonable access to its records but may establish reasonable procedures which protect the integrity and organization of its records and to prevent excessive disruptions of its essential functions. Such procedures might, for instance, include limiting copying devices to battery powered, hand-held devices, particularly where public space is limited. The Act contains no provisions requiring a public body to provide a source of electricity to power a copying or electronic device of the person requesting records. Under Section 24A.5(3) of the Act an agency may add charges to recover costs over and above those of its day-to-day operations. See A.G. Opin. 96-26, at 81-82. What restrictions on copying devices or charges for services provided in a given situation would be sufficient for a public body to, as stated in Section 24A.5(5), "protect the integrity and organization of its records and . . . prevent excessive disruptions of its essential functions" is a fact question beyond the scope of an Attorney General's Opinion. 74 O.S. 2001, § 18b[
Each governmental agency of this state, in cooperation with the Archives and Records Commission, shall determine whether, and the extent to which, it will create and retain electronic records and convert written records to electronic records.
Id. However, if a governmental agency elects to keep its records in electronic format we believe that such agency must provide records under the Act in this format if so requested.See Transp. Info. Serv.,
To give an opinion in writing upon all questions of law submitted to the Attorney General by the Legislature or either branch thereof, or by any state officer, board, commission or department, provided, that the Attorney General shall not furnish opinions to any but district attorneys, the Legislature or either branch thereof, or any other state official, board, commission or department, and to them only upon matters in which they are officially interested[.]
Id. As the State's chief law officer the Attorney General is entrusted with the duty of providing legal guidance to public officers and advising them on questions of law which relate to their official duties. With the exception of an Attorney General's Opinion that an act of the Legislature is unconstitutional, an Attorney General's Opinion is binding upon the state officials whom it affects. Branch Trucking Co. v.Okla. Tax Comm'n,
As to matters involving pending litigation the Attorney General is also authorized to:
[I]nitiate or appear in any action in which the interests of the state or the people of the state are at issue, . . . and when so appearing in any such cause or proceeding, the Attorney General may, if the Attorney General deems it advisable and to the best interest of the state, take and assume control of the prosecution or defense of the state's interest therein[.]
74 O.S. 2001, § 18b[
Although the Attorney General is an officer of the State exercising executive authority (OKLA. CONST. art.
While the Attorney General when acting in a quasi-judicial capacity is not a "court" (see State ex rel. Tharel v. Bd. ofComm'rs,
Thus in rendering opinions, the Attorney General is required to exercise judicial discretion in the matters coming to his attention. Tharel,
The effect of an Attorney General's Opinion in Oklahoma is different than it would be in many other states. In most jurisdictions, opinions or advice of the attorney general is advisory only, i.e., non-binding on the officials to whom it is addressed. See 7 AM. JUR. 2D Attorney General, § 11 (1997). In such jurisdictions attorney general opinions have in no sense the effect of judicial utterances. This is in sharp contrast to the role of the Attorney General in Oklahoma, where the Attorney General's opinion is binding on state officials to whom it applies, except only to the matter of constitutionality of statutes. Fent,
Given the binding, quasi-judicial nature of Attorney General Opinions in Oklahoma another principle applied by courts becomes important, that of comity. "Judicial comity is not a rule of law, but one of practical convenience and expediency" under which courts will refrain from interfering with actions in another court already underway on the same subject matter. Clampitt v.Johnson,
Under the principles of judicial comity stated above, we conclude that to promote judicial economy and to prevent inconsistencies in the outcome, if litigation is already underway in a court of competent jurisdiction on a matter that is the subject of a request for an opinion of the Attorney General, the Attorney General may exercise restraint and not render an opinion unless or until the court has finished its work. To do otherwise could result in a waste of legal resources. Moreover, for the Attorney General to render an opinion while a court is considering the same matter raises serious constitutional questions under our separation of powers requirements in OKLA. CONST. art.
It is, therefore, the official Opinion of the Attorney Generalthat:
1. The Oklahoma Ethics Commission or any other public body may not make rules, policy or procedures that conflict with the Open Records Act ("Act") or its enabling legislation. OKLA. CONST. art.
XXIX ; 74 O.S. Supp. 2006, ch. 62, R. 257:10-1-1; 51 O.S. 2001 Supp. 2006, §§ 24A.1-24A.29; Marley v. Cannon,618 P.2d 401 ,405 (Okla. 1980).2. The Act requires public bodies, including the Ethics Commission, to allow the public to have access to records of public bodies and public officials for inspection, copying and/or mechanical reproduction during regular business hours, except for certain materials required by law to be kept confidential. 51 O.S. 2001 Supp. 2006, §§ 24A.2, 24A.5.
3. The particular means of copying or reproducing records is not specified in the Act. A public body may establish reasonable procedures to protect the integrity and organization of its records and to prevent excessive disruptions of its essential functions. 51 O.S. Supp. 2006, § 24A.5[
51-24A.5 ](5). The use by a requesting person of his or her own copying equipment is not prohibited by the Act and must be permitted by the public body as long as such person's copying process does not unreasonably disrupt the essential functions of the public body or result in defacing or loss of such records. 51 O.S. Supp. 2006, § 24A.5[51-24A.5 ](5); see Transp. Info. Serv., Inc. v. State ex rel. Okla. Dep't of Corr.,970 P.2d 166 ,172 (Okla. 1998).4. Whether the means chosen by a public body to protect the integrity and organization of its records and to prevent excessive disruptions of its essential functions is reasonable and in compliance with the Act involves questions of fact which cannot be answered in an Attorney General's Opinion. 74 O.S. 2001, § 18b[
74-18b ](A)(5).5. There is no requirement that the Ethics Commission or other public body supply an original document to the person requesting such record for inspection, copying and mechanical reproduction, as long as the copy furnished is a true and correct copy of the original. 51 O.S. Supp. 2006, § 24A.5[
51-24A.5 ](5); 12 O.S. Supp. 2006, §§ 3002[12-3002 ], 3003, 3005; 67 O.S. 2001, § 301[67-301 ](A)(1).6. The Attorney General is not required to issue an opinion on a matter that is in litigation. 74 O.S. 2001, § 18b[
74-18b ](A)(3), (A)(5); State ex rel. York v. Turpen,681 P.2d 763 ,767 (Okla. 1984); Clampitt v. Johnson,359 P.2d 588 ,592 (Okla. 1961); Moody v. Branson,136 P.2d 925 ,928 (Okla. 1943); Okla. Const. art.IV , §1 .W.A. DREW EDMONDSON Attorney General of Oklahoma
LYNN C. ROGERS Assistant Attorney General