OBER v. STATE ex rel. DEPARTMENT OF PUBLIC SAFETY

FISCHER, P.J.,

concurring in part and dissenting in part.

( 1 This case is unique with respect to its simultaneous criminal and civil proceedings. This case also requires our reconciliation, if possible, of the public policy informing the Open Records Act and the public policy permitting the expungement of court records in criminal proceedings in certain circumstances, In my view, the district court ree-onciled the two statutes, and I would affirm the order appealed

12 Ober's arrest for dmvmg under the influence of alcohol resulted in a eriminal charge and triggered the administrative process resulting in the revocation by DPS of her driver's license for 180 days.1 Ober appealed the revocation by filing this civil ac*664tion. In this case, Ober argued she had no alternate means of transportation and that the revocation imposed an extreme hardship. DPS then agreed to modify its previous revocation and permit Ober to operate her vehicle while an interlock device was installed and the district court entered the order modifying the revocation.2 Ober then filed her motion to seal the record in this case. Ober argued that the records in her criminal case can be expunged and to achieve the benefit of the expungement statute the records in this case must be sealed. 3 DPS argued that Ober could have accepted the revocation and not driven for six months and there would be no court record of her arrest for DUI. According to DPS, Ober voluntarily created a court record of her arrest when she filed this appeal to obtain the modification of the previously imposed revocation.

T3 The district court agreed with Ober and ordered the file in this case sealed. The Majority reverses that order finding it incompatible with the policy of the Open Records Act. I respectfully dissent.

€4 I do not disagree with the Majority that the Open Records Act evidences a strong public policy in favor of access to the records in judicial proceedings, However, that pohcy is not absolute and exceptions are specifically incorporated in the Act. Further, in my view, this is a cireumstance in which, the confidentiality of the records in Ober's civil case may be "required by law." 51 0.S$.2011 and Supp. 2012 § 24A.29(A). Section 991e(C) of Title 22 provides:

TUpon completion of the conditions of the deferred judgment, and upon a finding by the court that the conditions have been met and all fines, fees, and monetary assessments have been paid as ordered, the defendant shall be discharged without a court judgment of guilt, and the court shall order the verdict or plea of guilty or plea of nolo contendere to be expunged from the record and the charge shall be dismissed with prejudice to any further action.

22 0.8.2011 §+991e(C). If Ober is entitled to the expungement of the record in her erimi-nal proceeding, she is entitled, in my view, to an order in this case that protects the benefit conferred © by the expungement statute. "Whenever it is possible to construe two acts by giving effect to both without doing violence to either, such construction is preferred over one that may be productive of conflict between them." Grand River Dam Auth. v. State, 1982 OK 60, ¶ 25, 645 P.2d 1011, 1019 (footnote omitted).

[ 5 According to Justice Edmondson:

The Open Records Act does not create privacy rights; but its exceptions to disclosure indicate that under some cireum-stances privacy rights of individuals should be protected, and the Act provides such protection for a privacy right in the context of a divorce proceeding when the personal privacy right supersedes the public's right to acquire the information because "the interests of justice" in the particular circumstance presented gives precedence to the individual's right 51 0.8.2011 § 24A,29(A)(1).

Shadid v. Hammond, 2013 OK 103, ¶ 9, 315 P.3d 1008 (Edmondson, J., concurring in part and dissenting in part) (footnote omitted). In my view, the district court's order is consistent with Ober's privacy interest protected by both the Open Records Act and the ex-pungement statute in this specific case.

16 Finally, affirming the district court's order is consistent with the Legislature's current statement of the policy underlying the Open Records Act found in 51 0.8. Supp. 2014 § 244.80; "All court records ... shall be considered public records and shall be subject to the provisions of the Oklahoma Open Records Act, unless otherwise identified by statute to be confidential." Title 22 00.98.2011 § 991e(C) identifies the records related to Ober's DUI arrest that may be confidential. It is also consistent with the relief to which Ober might be entitled in this Court if she is entitled to expungement of the *665record in her criminal case. See Okla. Sup. Ct. R. 1.260, 12 0.S8.2011, ch. 15, app. 1 (parties entitled to expungement of records pursuant to Title 22, sections 18 and 19 "may seek expungement of related civil records").

T7 I coneur with the Majority's disposition of Ober's jurisdictional argument.

, The record in this appeal-is sparse. The record from the administrative hearing is not included, nor is the record from the criminal proceeding. Nonetheless, most of the relevant facts can be derived from the transcript of the hearing on Ober's motion to seal the file in this case and do not appear to be disputed by the parties.

. There is some indication in the hearing transcript that DPS may have offered Ober a modified license prior to the administrative hearing.

. During the hearing, Ober's counsel stated she assumed that counsel representing Ober in the criminal proceeding would take care of the ex-pungement in that case.