New Public Access to Court Records – The Regulatory Review

The Supreme Court of Oklahoma allows access to records as a matter of public policy.

Recently, the Oklahoma Supreme Court decided a case on the confidentiality of judicial and administrative records. The State of Oklahoma v. Dennis Rivero decision is unique for many reasons, not the least of which is that the Oklahoma Supreme Court recognizedbut did not applythe presumption of public access to public records. Instead, the court held that public policy embodied by the states Open Records Act required it to overturn a blanket ban on disclosure. In this groundbreaking decision, the Oklahoma Supreme Court reached the same result as other courts have, but on new grounds that may now be followed in other courts across the nation.

Many courts decide similar cases on the basis of the presumption of public access to court records under the U.S. Constitution. The Oklahoma Supreme Court recognized this First Amendment presumption, and even pointed out that it follows that presumption in other cases. Yet it did not decide according to that constitutional presumption in this particular case.

Alternatively, many courts decide these cases on the basis of contract law. The courts in these other cases construe the agreed protective order or confidentiality agreement as a contract and interpret it accordingly. This issue, too, the Supreme Court of Oklahoma recognized but declined to address.

Instead, the court took a new approach to the facts presented in the recent case. Dennis Rivero, a physician, had defended a disciplinary proceeding before the State Board of Medical Licensure and Supervision. He agreed to a blanket protective order in that proceedingmaking everything confidential and limited to use in that proceeding, and in that proceeding only.

Rivero won the disciplinary proceeding. With that administrative proceeding at an end, he filed a lawsuit against the person whom he thought complained about him. Rivero asked the Board for copies of two depositions, and copies of his own motion for summary judgment and exhibits in the disciplinary proceeding. The Board refused, citing the agreed protective order that the doctor had signed, which make everything confidential and limited to use only in that disciplinary proceeding.

Rivero appealed the Boards order denying him access to these materials. On appeal, the Oklahoma Supreme Court ruled on the basis of public policy expressed in the Oklahoma Open Records Act and the Oklahoma Discovery Code. The Code, which the Board adopted for its proceedings, is similar to the Federal Rules of Civil Procedure. The Supreme Court ordered the depositions and the motion for summary judgment with its exhibits to be redacted and released.

Many states have public records lawsor, as in Oklahoma, open records laws like the federal Freedom of Information Act. The Supreme Court of Oklahoma ruled that just like the constitutional presumption of public access, the public policy embodied by the state Open Records Act and the Discovery Code in the Rules of Civil Procedure bars the use of blanket confidentiality orders. The court sent the matter back to the Board with directions to allow the doctor access to the documents after limited redactions and to allow him to use the redacted documents in other proceedings.

The court in this ruling made several unique moves that courts in other states could follow. The court ruled on the basis of public policy embedded in state statutes, not on constitutional requirements. And, state open records laws like those that influenced the Oklahoma Supreme Court are found throughout jurisdictions in the United States. They embody the same public policy favoring disclosure to the public as the Oklahoma Open Records Act, which the Oklahoma Supreme Court relied on in its opinion.

Furthermore, the court rested its decision on the fact that the State Board in question adopted the Oklahoma Discovery Act which has requirements for making documents and information confidential. As the Supreme Court described them, these statutory requirements have their conceptual origins in their counterparts found in the Federal Rules of Civil Procedure, Rule 26 and Rule 29.

All jurisdictions in the United States have rules of civil procedure. The effect of the Oklahoma Supreme Court reaching out to the public policy embodied in the Oklahoma Discovery Act is the legal equivalent of reaching out to the public policy embodied in the applicable rules of civil procedure. Under these rules, there is a presumption of public access to court files which must be accommodated, even in cases that contain case documents with public access restrictions.

An important aspect of this ruling is that it arises from a case involving a state administrative agency. So, the presumption of public access to court files was extended to public access to administrative agency files. Previously, disclosure was not mandated in all proceedings. The impact of the Oklahoma Supreme Courts ruling in this case could be universal: Public access to the records of courts and of administrative agencies is now presumed.

In Oklahoma, the new default is that the public has access to government materials. To restrict the publics access will be an exception, not the rule. Parties can agree, stipulate, or contract as they wish. But the parties cannot restrict public access in any proceeding simply because the parties wish it so.

Dennis Wall is a litigator and a member of the American Law Institute.

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New Public Access to Court Records - The Regulatory Review