RE: OPEN RECORDS ACT
ATTORNEY GENERAL HENRY HAS RECEIVED YOUR RECENT LETTER ASKING FOR AN OFFICIAL OPINION REGARDING THE COMMISSION'S ABILITY TO DELETE CERTAIN INFORMATION FROM DOCUMENTS IN ITS HANDS REQUESTED BY THIRD PERSONS. THE SPECIFIC SITUATION MENTIONED IN YOUR LETTER INVOLVES DELETING PATIENT NAMES FROM COMMISSION DOCUMENTS, OUT OF CONCERN FOR THE CONFIDENTIALITY RIGHTS OF PATIENTS WHOSE NAMES ARE MENTIONED IN THOSE DOCUMENTS.
ANY RESPONSE TO YOUR QUESTION INHERENTLY INVOLVES A DISCUSSION OF THE OPEN RECORDS ACT, ITSELF, ANY APPLICABLE SPECIFIC STATUTES GOVERNING PATIENT INFORMATION, AND THE OKLAHOMA SUPREME COURT DECISION RENDERED IN TULSA TRIBUNE COMPANY V. OKLAHOMA HORSE RACING COMMISSION, 735 P.2D 848 (OKLA. 1986), THE LEADING (AND ONLY) PUBLISHED APPELLATE DECISION CONSTRUING THE ACT'S PRIVACY REQUIREMENTS. ANY SUCH DETERMINATION ALSO INHERENTLY INVOLVES A CERTAIN DEGREE OF FACTUAL RESOLUTION AS TO THE CASE IN CONTROVERSY, AS WELL.
ACCORDINGLY, THE ATTORNEY GENERAL HAS AUTHORIZED ME TO RESPOND TO YOU ON HIS BEHALF THROUGH THIS INFORMAL, NONBINDING PERSONAL LETTER, IN HOPES THAT THE INFORMATION PROVIDED WILL ASSIST YOU IN RESOLVING YOUR QUANDARY, BUT ALSO RECOGNIZING THAT WE CANNOT TOTALLY RESOLVE SAME IN THIS LETTER.
SECTION 51 O.S. 24A.2 OF THE ACT (51 O.S. 24A.2 (1987)) ESTABLISHES A BASIC TENET THAT "IT 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." THIS PROVISION THEN GOES ON TO NOTE THAT IT IS THE PURPOSE OF THE OPEN RECORDS ACT TO ENSURE AND FACILITATE THE PUBLIC'S RIGHT OF ACCESS TO PUBLIC RECORDS SO THEY MAY BE INFORMED OF GOVERNMENTAL AFFAIRS. SECTION 51 O.S. 24A.5 FURTHER PROVIDES THAT "ALL RECORDS OF PUBLIC BODIES AND PUBLIC OFFICIALS SHALL BE OPEN TO ANY PERSON FOR INSPECTION, COPYING, AND/OR MECHANICAL REPRODUCTION DURING REGULAR BUSINESS HOURS," WITH ONLY THE SPECIFIC EXCEPTIONS TO THIS GENERAL RULE PROVIDED FOR BY APPLICABLE LAW BEING EXEMPTED FROM THE REQUIREMENT OF PUBLIC ACCESS.
THE ACT ALSO STATES, IN LINE WITH ITS GENERAL PHILOSOPHICAL APPROACH, THAT IF ANY GIVEN DOCUMENT CAN BE PARTIALLY RELEASED TO THE PUBLIC, WITH ONLY PORTIONS OF IT DELETED FROM PUBLIC SCRUTINY TO PROTECT REQUIRED CONFIDENTIALITY CONCERNS, THAT AN AGENCY SHOULD UTILIZE THIS PROCEDURE, RATHER THAN TO REFUSE ACCESS TO THE ENTIRE DOCUMENT. SECTION 51 O.S. 24A.5(2) STATES, IN THIS REGARD, IN PERTINENT PART:
"2. ANY REASONABLY SEGREGABLE PORTION OF A RECORD CONTAINING EXEMPT MATERIAL SHALL BE PROVIDED AFTER DELETION OF THE EXEMPT PORTIONS. . . ."
IN SHORT, THE ACT NOT ONLY CONTEMPLATES THAT PUBLIC AGENCIES SUBJECT TO ITS TERMS MAY DELETE CONFIDENTIAL INFORMATION FROM PUBLIC DOCUMENTS AS A PREDICATE TO THEIR RELEASE, IT REQUIRES SUCH STEPS TO BE TAKEN.
THIS RATIONALE WAS STRONGLY BOLSTERED BY THE OKLAHOMA SUPREME COURT IN TULSA TRIBUNE. IN THAT CASE, THE COURT FACED ISSUES STEMMING FROM THE DESIRED CONFIDENTIALITY OF CERTAIN COMMERCIAL INFORMATION TRANSMITTED BY A PROSPECTIVE RACETRACK LICENSEE TO THE STATE, WHERE THE CONFIDENTIALITY OF SUCH INFORMATION WAS NOT EXPRESSLY PROVIDED FOR BY THE ACT, ITSELF. ID., AT 553. IN RULING THAT THERE ARE