Fabian & Associates, P.C. v. State ex rel Dep't of Public Safety7/6/2004
The appellant, Fabian & Associates, P.C., sought declaratory relief and an injunction pursuant to 51 O.S.2001, § 24A.17(B), when it was denied access to recordings of administrative hearings concerning revocation of drivers' licenses before the Department of Public Safety, the appellee. The Department argued that the recordings were permitted, but not required by law, and therefore were not records under either the Records Management Act, 67 O.S.2001, § 201, et seq., or the Open Records Act, 51 O.S.2001, § 24A.1 et seq. The trial court found for the appellee, and denied relief to the appellant. Fabian & Associates appealed and the Court of Civil Appeals reversed and remanded.
CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS OPINION VACATED; JUDGMENT OF THE TRIAL COURT REVERSED AND REMANDED.
ON CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION I
Stephen G. Fabian, Jr., Michael O'Brien, Fabian & Associates, P.C., Oklahoma City, Oklahoma, for Appellant.
Jerry C. Blackburn, Oklahoma City, Oklahoma, for Appellees.
The opinion of the court was delivered by: Winchester, J.
__ P.3d __
The question before us in this case is whether tape recordings of Implied Consent Hearings before the Department of Public Safety are records as defined by two acts: The Records Management Act, 67 O.S.2001, § 203(a); and The Oklahoma Open Records Act, 51 O.S.2001, § 24A.3(1); and whether the Department of Public Safety is required to provide copies for public inspection. The appellant, Fabian & Associates, P.C., petitioned for a declaratory judgment and an injunction against the State of Oklahoma ex rel. the Department of Public Safety and Bob Ricks, Commissioner, appellees, declaring that destruction of the tape recordings violated the two acts, and for an injunction prohibiting the appellees from destroying any of these tape recordings in the future unless done in accordance with The Records Management Act.
On December 27, 2002, the trial court heard an application for a temporary injunction, and after argument by counsel, declared the tape recordings were not records as defined in 67 O.S.2001, § 203, denied the injunction and dismissed the case. On appeal, the Court of Civil Appeals reversed and remanded. We granted certiorari.
Fabian & Associates, P.C., is a law firm that defends persons accused of driving or being in actual physical control of a vehicle while under the influence of alcohol or other intoxicating substances. The firm handles both the driver's license revocation process and the criminal charges. Hearings on driver's license revocations are conducted before the Department of Public Safety (DPS) or a designated hearing officer. 47 O.S.2001, § 754(F). Subsection F includes the provision that the "hearing may be recorded."
DPS attempts to record all of these hearings. DPS asserts that licensees and their attorneys are allowed to make their own recording of the hearing either through tape recording or short hand reporter. The parties are informed by written notice that a tape of the proceeding, when available, may be purchased for $5.00. However, when the DPS has set aside the revocation of the driver's license, the tapes are reused and therefore not available.
Having prevailed in hearings before DPS, Fabian requested those tapes for use in the criminal cases pending against its clients. DPS informed Fabian that it no longer provided tapes on a case that had set aside a revocation, so Fabian commenced its action against DPS.
DPS argued before the trial court and in its Petition for Writ of Certiorari that the law permitted but did not require the hearings to be recorded. 47 O.S.2001,
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