Saturday, June 27, 2009

Supporting documents for deferred prosecution agreement are public under Oklahoma ORA


Question from a reporter: Are a district attorney’s supporting documents related to a deferred prosecution agreement available to the public under the Oklahoma Open Records Act?


Yes, if the deferred prosecution agreement was made after 2000. See OKLA. STAT. tit. 22, § 305.1.

The framework on which this law was crafted is that DPAs were secret until the year 2000. The Oklahoma Press Association was able to secure legislation opening DPAs. But under a compromise with the district attorneys, DPAs entered into prior to the effective date of the law would remain sealed unless confidentiality was waived as part of the original agreement.

For example, former Oklahoma County DA Bob Macy always made confidentiality waivers part of the agreement, so he could have released those made prior to the year 2000. Not so with many other district attorneys.

OKLA. STAT. tit. 22, § 305.5 says DPAs "shall not be released" to anyone who will "use the information for dissemination to the general public." But it also says the provisions of this subsection "shall apply only" with respect to information received or collected … entered into by the parties relating to crimes committed prior to the effective date of this act, unless such information is otherwise deemed confidential by law."

In short, unless some other law closes the supporting information, then it would be open if the DPA was agreed to by the parties after the year 2000.

OKLA. STAT. tit. 22, § 305.2.H.2 says any DPA entered into "prior to the effective date of this act" shall not be a record open to the public, unless confidentiality was waived as a condition of the agreement." That seems to say that all DPAs entered into after the law was effective, including the documentation if no other law excludes it, would be open.

If you cobble together other tidbits of logic, you can also make the same case with subsection 305.4, under which the information becomes confidential when the person completes the program. In other words, records should be open while the person is engaged under the DPA.

A district attorney who decides to terminate the DPA has to tell the other side why the agreement is being terminated, and that is an open record. If the DA terminates an agreement that was entered into prior to the effective date of this act, those supporting documents are open.

Answer provided by Mark Thomas, executive vice president, Oklahoma Press Association

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