On December 3, the Tenth Circuit Court of Appeals reversed a District Court order barring enforcement of a federal law that prohibits states from disclosing personal information contained in motor vehicle records.

Oklahoma Attorney General Drew Edmondson challenged the 1994 Driver's Privacy Protection Act (DPPA) as an unconstitutional infringement upon state sovereignty. The DPPA prohibits a state motor vehicle department from knowingly disclosing "personal information" about any individual obtained "in connection with a motor vehicle record." A civil penalty of up to $5,000 a day against a state agency could be levied for a policy of non-compliance.

The Oklahoma Open Records Act [51 O.S., § 24A.5] and the Oklahoma Highway Safety Code [47 O.S. § 6-117(h)] require that information about an individual identified in the records of Oklahoma's motor vehicle department be made available for public inspection. Oklahoma contended the DPPA impaired the state's ability to manage its motor vehicle records by directing the state to regulate the disclosure of motor vehicle information in a specific manner and that the DPPA unconstitutionally "commandeers" the functioning of its motor vehicle department by requiring the state to regulate a federal program.

District Judge David Russell enjoined the United States from enforcing the DPPA in Oklahoma because it constituted an unconstitutional "command to state governments to implement legislation enacted by Congress." Russell said the DPPA unlawfully required the state to create a system to enforce an unfunded federal mandate, noting that the law "would require Oklahoma to train * * * employee in approximately 270 tag agencies across the State on when and how records may be released."

The Tenth Circuit three-member panel reversed Judge Russell's order holding that the DPPA constituted a "valid exercise of congressional power." Congress passed the law in reaction to a stalking case in California and as an effort to regulate the bulk sale of information from motor vehicle records. The law prohibits disclosure of names, addresses, Social Security numbers and other personal information. Companies, marketers, private investigators and others are exempted from the ban on access to such information.

"In enacting the DPPA, Congress obviously curtailed state's prerogative to make choices respecting the release of motor vehicle information," the Tenth Circuit stated. "No one claims that Congress exceeded the scope of its power under the Commerce Clause in so doing. Nor has the Supreme Court ever suggested that Congress impermissibly invades areas reserved to the states under the Tenth Amendment because it exercises its preemptive authority under the Commerce Clause in a manner that displaces state law and policy to some extent. The DPPA simply requires states to make a choice, i.e. stop releasing personal information from state motor vehicle records to the public, or release such information consistent with the dictates of the DPPA."

The Tenth Circuit is the second circuit court to rule on the constitutionality of the DPPA. The Fourth Circuit Court of Appeals came to a different conclusion holding that because the DPPA was not a "generally applicable law,""Congress did not have authority under our system of dual sovereignty to enact it."Condon v. Reno, 155 F.3d 453, 463 (4th Cir. 1998). Because of the conflict among the circuit courts, review by the Supreme Court is probable. State of Oklahoma ex rel. Oklahoma Department of Public Safety v. U. S., 994 F.Supp. 1358 (W.D. Okl. 1997), rev'd, --- F.3d - (10th Cir. 1998) (No. 97-6389).

Department of Corrections Must Provide Access to Records on Inmates

On October 27, the Oklahoma Supreme Court held that the Department of Corrections was required under the Oklahoma Open Records Act to provide information on all individuals incarcerated in Oklahoma prisons in the past seven years to an Oklahoma company who sought the information to provide background checks on potential employees.

Transportation Information Services, Inc. (TISI) provided background information on potential employees of trucking companies. TISI made a records request to the Department of Corrections (DOC) for information maintained by DOC on all inmates in the state system. TISI requested the information in magnetic tape format and offered to pay all expenses in providing the information. At trial, DOC presented testimony that the initial cost to provide the information to TISI would be $964.69 and annual updated reports would cost $89.10.

In 1995, an Oklahoma County District Court Judge issued a peremptory writ of mandamus ordering DOC to release the records to TISI. DOC appealed this ruling. On April 29, 1997, the Oklahoma Court of Appeals affirmed the trial court ruling. The Supreme Court subsequently granted certiorari.

DOC's principal argument on appeal was that 74 O.S. §150.9 required that all criminal history records must be obtained from the Oklahoma State Bureau of Investigation at a cost of $15.00 per report. The cost to TISI for the individual records would have been approximately $700,000.

"DOC admits that it maintains the records requested and that TISI would be entitled to the information from it if the request were submitted on an inmate-by-inmate basis," the Supreme Court said. "There is no legal authority for DOC's claim that requests to it must be made on an individual basis."

The Supreme Court also rejected DOC's argument that providing the information to a commercial enterprise would constitute a gift to the commercial enterprise in violation of state law. "There is no legal foundation for DOC's assertion that the state is losing the value of the difference between what the OSBI could charge and what it will cost DOC to provide the information." Transportation Information Services, Inc., d/b/a DAC Services v. State of Oklahoma ex rel. Oklahoma Department of Corrections, 1998 WL 761703, 1998 OK 108.

More Exceptions to Oklahoma Open Meetings Act Adopted

The Oklahoma legislature made two changes to the Oklahoma Open Meetings Act during the 1998 session that narrowed public access to public meetings. The legislators added to the list of public bodies that may go into executive session for reasons other than those specified in Section 307.B. of the Open Meetings Act and defined a group as not meeting the definition of public body under the Open Meetings Act.

S.B. 1042 provides that meetings of stewards designated by the Oklahoma Horse Racing Commission shall not be considered a meeting of a public body when the stewards are officiating at races or otherwise enforcing rules of the Horse Racing Commission.

S.B. 996 provides that public bodies "[may go into executive session] for purposes of conferring on matters pertaining to economic development, including the transfer of property, financing, or the creation of a proposal to entice a business to locate within their jurisdiction if public disclosure of the matter discussed would interfere with the development of products or services or if public disclosure would violate the confidentiality of the business."

City Bodies May Hold Executive Session Despite Charter Mandate

On March 10, the Oklahoma Court of Civil of Appeals held that a home rule charter city may conduct executive sessions authorized by state law but not authorized by the charter. The ruling overturns a 1980 Oklahoma Attorney General's opinion that a municipality could not go into an executive session when its charter required that all meetings be held in public.

The City of Kingfisher filed a petition for declaratory judgment after it received a complaint that its executive sessions were in violation of its home rule charter. The trial court granted summary judgment for the city, holding executive sessions might be held under the Open Meetings Act even if the city charter states that all meetings are to be public. The State of Oklahoma and the Oklahoma Attorney General appealed.

In upholding the trial court, Division No. 4 of the Court of Appeals focused solely on whether the city charter provision was exclusively within municipal concern or whether it had broader implications. The appeals court found a broad interest in non-public discussion regarding matters of employment and information protected by confidentiality laws that might be affected by public discussion and comment.

"The permissible executive session provisions promulgated by the legislature in section 307 reflect legislative protection of private and public interests that go well beyond matters of purely municipal concern," the appeals court said. "A much wider public interest is involved. Therefore, the conflicting municipal law must yield." Kingfisher v. Oklahoma, 1998 OK CIV APP 39, 958 P.2d 170.

Legislature Expands Public Access to Juvenile Records

During the 1998 legislative session, Oklahoma law (10 O.S. § 7307-1.2) establishing exceptions to the confidentiality of juvenile records was amended three separate times.

Because of the multiple amendments, two versions of the statute are included in the 1998 Supplement to the Oklahoma Statutes. The general principle is that the provision passed last is the law. See Parker v. Blackwell Zinc Co., 325 P.2d 958 (Okla. 1958) (when the Legislature had passed two acts both providing that a certain section of the law should be amended, and the second act omitted a provision contained in the first act, the second act controlled and the first act did not become law). Applying this rule, H.B. 2829 is the law because passed (and signed by the Governor) later than the other two bills. However, the legislative staff counsel has advised that when discrepancies such as this occur, both versions have the force of law until the Legislature "cleans up" the wording during the next session.

Thus, law enforcement records of juveniles are not confidential that concern: (1) a juvenile certified as an adult; (2) a juvenile charged with a crime as an adult; (3) a violation of any traffic regulation or motor vehicle regulation of Title 47 of the Oklahoma Statutes, or to a violation of any city ordinance or county resolution which relates to the regulation of traffic on the roads, highways or streets, or to the operation of self-propelled or nonself-propelled vehicles of any kind; (4) a juvenile who is fourteen years of age or older and who has been adjudicated delinquent and who subsequently comes before the juvenile court on a new delinquency matter; (5). a juvenile adjudicated a delinquent for committing a delinquent act which, if committed by an adult, would be a felony offense that is a crime against the person or a felony offense involving a dangerous weapon; (6) an arrest record of a juvenile arrested for committing an act, which if committed by an adult, would be a felony offense; and (7) records relating to a violation of the Prevention of Youth Access to Tobacco Act.

Jury Confirms Two Summary Judgments Reversed on Appeal.

On September 28, an Oklahoma County jury deliberated for approximately 10 minutes before returning a verdict in favor of an Oklahoma City television station sued for libel. The jury verdict was consistent with two summary judgments entered by two different judges but reversed on appeal.

KFOR-TV and reporter Brad Edwards broadcast two news stories alleging that M&M Drum Company was dumping toxic chemical residues directly into the Oklahoma City sewer system. Glenn Malson and Virginia Malson filed the defamation action claiming they operated M&M Drum Company and had been injured by the broadcast.

The media defendants moved for summary judgment initially because they alleged the television station was not negligent in investigating and reporting the stories. In support of the motion, the station attached an affidavit of its expert stating the station had exercised the degree of care which ordinarily prudent persons engaged in the news business exercise under similar circumstances. The plaintiffs opposed the motion with an affidavit of its expert explaining how the broadcast fell below the degree of care normally exercised. The trial court granted summary judgment stating "there is no evidence of negligence of defendant's presented to the Court."

The Supreme Court reversed stating "summary judgment was especially inappropriate in the present case because there were conflicting affidavits concerning whether television station had used ordinary care. Issues of negligence are ordinarily not fit subjects for summary adjudication." Malson v. Palmer Broadcasting Group, 1997 OK 42, 936 P.2d 940.

While the first appeal was pending, Glenn Malson died. When the appeals court reversed, the defendants moved for summary judgment again alleging that Virginia Malson had no involvement in the company and thus the broadcast could not have been "of and concerning" Virginia. The trial court again entered summary judgment in favor of the media defendants.

The Court of Appeals found "no evidence in the record to support Virginia's assertion that she and Glenn were partners in M&M Drum." Nevertheless, the appeals court reversed the entry of summary judgment and remanded to the trial court stating "Nothing we have said in this opinion should be used to suggest that Virginia does or does not possess a cause of action against KFOR-TV. We hold only that the trial court erred, on the basis of the evidentiary materials in the record, by entering summary judgment in favor of KFOR-TV." Malson v. Palmer Broadcasting Group, 1998 OK CIV APP 68, 986 P.2d 940.

The week-long trial included a defense case that took only half a day. Malson v. Palmer Broadcasting Group, No. CJ-94-5284-62 (Okla. Dist. Ct. Sept. 18, 1998)