Opinion No. (1990) ( 1990 )

THE ATTORNEY GENERAL HAS DICTATED THAT I RESPOND TO YOUR LETTER REGARDING THE APPLICATION OF THE OPEN RECORDS ACT TO CERTAIN RECORDS IN THE CUSTODY OF THE COMMISSION'S LAW ENFORCEMENT DIVISION. YOUR REQUEST PRESENTED THE FOLLOWING QUESTION:

DOES THE OKLAHOMA OPEN RECORDS ACT, CODIFIED AT 51 Ohio St. 24A.1 (1989) ET SEQ., REQUIRE THE OKLAHOMA HORSE RACING COMMISSION TO RELEASE DOCUMENTS CONTAINING INFORMATION ON PERSONS WHO CASH WINNING PARI-MUTUEL TICKETS AT COMMISSION LICENSED RACE TRACKS, WHEN SUCH DOCUMENTS ARE RECEIVED BY THE LAW ENFORCEMENT DIVISION OF THE HORSE RACING COMMISSION SOLELY FOR INVESTIGATIVE PURPOSES?

BECAUSE OF THE TYPE OF QUESTION PRESENTED AND ITS CLEAR STATUTORY CONSTRUCTION, IT HAS BEEN DETERMINED THAT YOUR REQUEST SHOULD BE ADDRESSED IN A LETTER INSTEAD OF AN OFFICIAL OPINION. SINCE THIS IS NOT A FORMAL OPINION, IT IS NOT TO BE CONSIDERED AN OFFICIAL OPINION OF THE ATTORNEY GENERAL BUT SOLELY THE OPINION OF THE ASSIGNED ATTORNEY.

PURSUANT TO THE AUTHORITY GRANTED IN 3A O.S. 203.3(C) (1989), THE HORSE RACING COMMISSION HAS ESTABLISHED A LAW ENFORCEMENT DIVISION. THE LAW ENFORCEMENT DIVISION IS CHARGED WITH THE RESPONSIBILITY OF ENFORCING THE CRIMINAL LAWS OF THE STATE, PREVENTING CRIMINAL ACTIVITY RELATING TO HORSE RACING AND INSURING LEGAL PARI-MUTUEL WAGERING AT LICENSED RACE TRACKS. 3A O.S. 203.3(C)/3A O.S. 208.8/3A O.S. 208.9 (1989).

THE LAW ENFORCEMENT DIVISION MUST BE HEADED BY A PROFESSIONAL LAW ENFORCEMENT OFFICER OR A PERSON WITH A MINIMUM OF TEN (10) YEARS EXPERIENCE IN THE FIELD OF LAW ENFORCEMENT. THE OFFICERS AND AGENTS OF THE LAW ENFORCEMENT DIVISION HAVE THE SAME POWERS AND AUTHORITY AS PEACE OFFICERS. THEY MAY CONDUCT INVESTIGATIONS FOR THE PREVENTION OF CRIME AND THE ENFORCEMENT OF THE CRIMINAL LAWS OF THE STATE OF OKLAHOMA. 3A O.S. 203.3(C).

THE AGENTS EMPLOYED BY THE COMMISSION'S LAW ENFORCEMENT DIVISION ARE CERTIFIED BY THE COUNCIL ON LAW ENFORCEMENT EDUCATION AND TRAINING (CLEET). THE STATUTORY SECTION WHICH PERTAINS TO CLEET, 70 O.S. 3311(D)(5) (1989), DEFINES A POLICE OR PEACE OFFICER AS:

"A FULL-TIME DULY APPOINTED OR ELECTED OFFICER WHO IS PAID FOR WORKING MORE THAN TWENTY-FIVE (25) HOURS PER WEEK AND WHOSE DUTIES ARE TO PRESERVE THE PUBLIC PEACE, PROTECT LIFE AND PROPERTY, PREVENT CRIME, SERVE WARRANTS, AND ENFORCE LAWS AND ORDINANCES OF THIS STATE, OR ANY POLITICAL SUB-DIVISION THEREOF(.)

THE LAW ENFORCEMENT DIVISION IS IN CHARGE OF ALL INVESTIGATIONS OF RACE TRACKS, COMMISSION LICENSEES, PARI-MUTUEL WAGERING, AND OTHER MATTERS INVOLVING LICENSED RACE TRACKS. THEY CONDUCT BACKGROUND INVESTIGATIONS OF LICENSEES AND INVESTIGATE ALL PERSONS WHO CASH WINNING PARI-MUTUEL TICKETS AT COMMISSION LICENSED RACE TRACKS. 3A O.S. 203.3/3A O.S. 208.8, AND 3A O.S. 208.9 (1989). THE MAIN PURPOSE FOR SUCH INVESTIGATIONS IS TO DETERMINE THE OCCURRENCE OF COLLUSION, FRAUD OR OTHER VIOLATIONS OF THE CRIMINAL LAWS IN CONNECTION WITH HORSE RACING IN OKLAHOMA.

YOU HAVE INFORMED US THAT, ALL LICENSED RACE TRACKS PROVIDE THE COMMISSION'S LAW ENFORCEMENT DIVISION AND THE INTERNAL REVENUE SERVICE WITH EITHER A FORM OR A COMPUTER PRINTOUT CONTAINING INFORMATION ON PARI-MUTUEL RACE WINNERS. THE INFORMATION PROVIDED INCLUDES THE PERSONS NAME, HOME ADDRESS, DRIVERS' LICENSE NUMBER, SOCIAL SECURITY NUMBER AND THE AMOUNT OF GROSS WINNINGS. THIS INFORMATION IS SENT DIRECTLY TO THE COMMISSION'S DIRECTOR OF LAW ENFORCEMENT AND DOES NOT GO TO ANY OTHER DIVISION WITHIN THE HORSE RACING COMMISSION. THE INFORMATION IS SENT TO THE LAW ENFORCEMENT DIVISION SOLELY FOR THE PURPOSE OF CONDUCTING ITS INVESTIGATIONS.

THE LAW ENFORCEMENT DIVISION MAY WORK WITH OTHER LAW ENFORCEMENT AGENCIES SUCH AS, THE DISTRICT ATTORNEY'S OFFICE OR THE OKLAHOMA STATE BUREAU OF INVESTIGATION. IF THE DIRECTOR OF THE LAW ENFORCEMENT DIVISION CONCLUDES THAT THE INVESTIGATION DISCLOSES CRIMINAL VIOLATIONS, THE INFORMATION IS PROVIDED TO THE DISTRICT ATTORNEY'S OFFICE OR OTHER LAW ENFORCEMENT AGENCIES.

UNDER THE OKLAHOMA OPEN RECORDS ACT, 51 Ohio St. 24A.1 (1989) ET SEQ., PUBLIC BODIES SUCH AS THE OKLAHOMA HORSE RACING COMMISSION MUST MAKE RECORDS AVAILABLE TO THE PUBLIC UNLESS SPECIFICALLY REQUIRED BY LAW TO BE KEPT CONFIDENTIAL OR, UNLESS THEY FALL WITHIN A SPECIFIC EXCEPTION TO THE ACT. 51 Ohio St. 24A.5(1); A. G. OPIN. NO. 88-033 (OCTOBER, 1988). THE OKLAHOMA HORSE RACING ACT, 3A O.S. 200.1 (1989) ET SEQ., IS SILENT ON THE ISSUE OF WHETHER INFORMATION COLLECTED BY THE LAW ENFORCEMENT DIVISION PURSUANT TO ITS INVESTIGATIVE DUTIES MUST REMAIN CONFIDENTIAL.

WE MUST THEN LOOK TO WHETHER AN EXCEPTION IS PROVIDED FOR IN THE OPEN RECORDS ACT ITSELF. THE ACT PERMITS LAW ENFORCEMENT AGENCIES TO KEEP CERTAIN LAW ENFORCEMENT RECORDS CONFIDENTIAL. A LAW ENFORCEMENT AGENCY IS DEFINED BY THE OPEN RECORDS ACT AS:

"ANY PUBLIC BODY CHARGED WITH ENFORCING STATE OR LOCAL CRIMINAL LAWS AND INITIATING CRIMINAL PROSECUTIONS, INCLUDING, BUT NOT LIMITED TO, POLICE DEPARTMENTS, COUNTY SHERIFFS, THE DEPARTMENT OF PUBLIC SAFETY, THE OKLAHOMA BUREAU OF NARCOTICS AND DANGEROUS DRUGS CONTROL, THE ALCOHOLIC BEVERAGE LAWS ENFORCEMENT COMMISSION, AND THE OKLAHOMA STATE BUREAU OF INVESTIGATION." 51 Ohio St. 24A.3(5) (1989).

THE OKLAHOMA LEGISLATURE HAS SPECIFICALLY REQUIRED THAT THE OKLAHOMA HORSE RACING COMMISSION CREATE A LAW ENFORCEMENT DIVISION FOR THE PREVENTION OF CRIME AND THE ENFORCEMENT OF THE CRIMINAL LAWS OF THE STATE OF OKLAHOMA. THE LEGISLATURE HAS PROVIDED THAT THE EMPLOYEES OF THE LAW ENFORCEMENT DIVISION SHALL HAVE THE SAME AUTHORITY AND POWERS AS ALL OTHER PEACE OFFICERS IN THE STATE. 3A O.S. 203.3(C)(1) AND (2). THE LAW ENFORCEMENT DIVISION OF THE COMMISSION MEETS THE DEFINITION OF A LAW ENFORCEMENT AGENCY AS DEFINED IN THE OPEN RECORDS ACT. THE HORSE RACING COMMISSION, AS A WHOLE, MAY ALSO FUNCTION AS A LAW ENFORCEMENT AGENCY IN CARRYING OUT CERTAIN STATUTORY DUTIES. 3A O.S. 204.

THE ACT DOES REQUIRE RELEASE OF CERTAIN LAW ENFORCEMENT RECORDS. 51 Ohio St. 24A.8(A) OF THE OPEN RECORDS ACT LISTS THE TYPE OF INFORMATION REQUIRED TO BE DISCLOSED BY LAW ENFORCEMENT AGENCIES. UNDER THE ACT, LAW ENFORCEMENT AGENCIES MUST MAKE AVAILABLE INFORMATION SUCH AS ARRESTEE DESCRIPTIONS, CONVICTION INFORMATION, DISPOSITION OF WARRANTS, CRIME SUMMARIES, RADIO LOGS, AND JAIL REGISTERS. HOWEVER, SUBSECTION B OF 24A.8 PERMITS LAW ENFORCEMENT AGENCIES TO KEEP OTHER TYPES OF RECORDS FROM PUBLIC DISCLOSURE. SUBSECTION B PROVIDES:

"EXCEPT FOR THE RECORDS LISTED IN SUBSECTION A OF THIS SECTION AND THOSE MADE OPEN BY OTHER STATE OR LOCAL LAWS, LAW ENFORCEMENT AGENCIES MAY DENY ACCESS TO LAW ENFORCEMENT RECORDS EXCEPT WHERE A COURT FINDS THAT THE PUBLIC INTEREST OR THE INTEREST OF AN INDIVIDUAL OUTWEIGHS THE REASON FOR DENIAL. (EMPHASIS ADDED.)"

BECAUSE THE INFORMATION ON PARI-MUTUEL WINNERS COMES TO THE COMMISSION'S LAW ENFORCEMENT DIVISION SOLELY FOR THE PURPOSE OF CONDUCTING CRIMINAL INVESTIGATIONS PURSUANT TO ITS DUTY TO INVESTIGATE AND ENFORCE THE CRIMINAL LAWS OF THE STATE OF OKLAHOMA, AND BECAUSE THIS TYPE OF INFORMATION IS NOT LISTED IN 51 Ohio St. 24A.8(A), THE OPEN RECORDS ACT DOES NOT REQUIRE DISCLOSURE. DISCLOSURE IS NOT REQUIRED UNLESS A COURT FINDS THAT THE PUBLIC INTEREST WOULD BE BETTER SERVED BY RELEASE OF SUCH INFORMATION.

SHOULD YOU HAVE MY FURTHER COMMENTS OR QUESTIONS, PLEASE CONTACT ME DIRECTLY.

(RACHEL LAWRENCE-MOR)