Court of Civil Appeals rejects coach's plea to seal court record of DUI

A coach's concern about the consequences if her players and students discovered her "conviction for driving under the influence and revocation of her driver's license" was not a compelling reason to seal an entire court record, the Oklahoma Court of Civil Appeals has ruled. "If this Court took [Tammy] Ober's assertion to its logical conclusion, any individual convicted of a crime or quasi-crime would be entitled to a protective order sealing the record from public access," the court reasoned.

In a 2-1 ruling issued Jan. 5, the court said former Cleveland County District Judge Tom Lucas had abused his discretion when he agreed to seal the court record a month before retiring from the bench in July 2013.

Lucas, 82, died Jan. 20.

In granting Ober's protective order closing the record, Lucas said the "potential harm" from public access to the record "far exceeds any benefit that the public might gain."

"[I]f the school wants to know, they can come ask me to open the record, ask somebody to open the record, and they'll do that," Lucas wrote. "Parents, for example, aren't prohibited from finding out about their teachers by asking the district attorney in the local area or [DPS], for example, or anybody. They can call the DA's office and ask for criminal records if they hadn't been expunged. They can call the DA's office and ask for any DUI cases or anything like that."

Ober was arrested in 2011 for operating a vehicle while under the influence of alcohol. She requested an administrative hearing, held in 2012, after which the state Department of Public Safety issued an order revoking her driver's license for 180 days.

Ober filed a petition in the Cleveland County court appealing that order. In 2013, she and DPS officials settled that case by allowing her to drive a car with a device to prevent drinking and driving. A district judge signed a final order incorporating that agreement.

A week later, Ober requested a protective order sealing her entire petition, which contained the Order of Revocation. In the hearing to seal that court record, Ober testified:

As a teacher and a coach, I feel like it's my responsibility to be a positive role model for my students and my players. I just feel like I don't want my players or my students to look up that information, or to even stumble upon it, because I feel like it could lead to a disruption due to my lapse in judgment one evening. And I don't want that to disrupt my classroom or to disrupt what I do on the court with my players. ..

I feel like you should have a right to know information about the teachers, but this is the one mistake that I've made in my life, and I feel like it should not follow me around for the rest of my career. .. I feel like .. they don't need to know ... because if they do .. they're going to hold it as part of my character and as part of defining me, and that's not what defines me whatsoever. ..

I feel that, one, the mistake should not follow my career around, especially being so early in my career. ..

Lucas signed the protective order sealing the record of her petition. But DPS officials appealed.

Vice Chief Judge Jerry L. Goodman and Judge Jane Wiseman agreed with DPS.

The coach had "failed to establish a compelling reason why it is necessary in the interests of justice to seal the record, instead merely speculating that leaving the record open could lead to disruption at work, could interfere with employment endeavors in the future, or could cause others to erroneously define her character," Goodman wrote.

He noted that Ober didn't ask "for the sealing of specific pleadings or confidential information, including a social security number or financial information."

"Rather, concerned over the potential consequences of her actions, Ober seeks to seal the entire record and prevent public access and knowledge of her conviction for driving under the influence and revocation of her driver's license," Goodman wrote.

He quoted state Supreme Court Justice Steven W. Taylor's concurring opinion in Shadid:

Sealing a public record should be a very rare event that occurs in only the most compelling of circumstances... Public records should remain public except in the most compelling of circumstances.

Judge John Fischer dissented, contending that Lucas had correctly reconciled the "public policy informing the Open Records Act and the public policy permitting the expungement of court records in criminal proceedings in certain circumstances."

Fischer said he didn't disagree with Goodman and Wiseman "that the Open Records Act evidences a strong public policy in favor of access to the records in judicial proceedings." But he noted "that policy is not absolute and exceptions are specifically incorporated in the Act."

"If Ober is entitled to the expungement of the record in her criminal proceeding, she is entitled, in my view, to an order in this case that protects the benefit conferred by the expungement statute," Fischer reasoned. "In my view, the district court's order is consistent with Ober's privacy interest protected by both the Open Records Act and the expungement statute in this specific case."

The Court of Civil Appeals reached its decision in early April, but Ober appealed to the state Supreme Court. The justices unanimously refused in December to hear that appeal.

Joey Senat, Ph.D. Associate Professor OSU School of Media & Strategic Communications

The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, its board of directors or the commentator’s employer. Differing interpretations of open government law and policy are welcome.