Monday, November 30, 2009

Bill would make OHP dash cam videos public records

A bill to remove Oklahoma Highway Patrol dash cam videos from the list of records exempted under the state Open Records Act was filed Monday by state Sen. Jim Wilson.

The Tahlequah Democrat said the legislation is in response to “controversial incidents in the state involving the suggestion of officers abusing their power.”

“Our public safety officers are public servants who work at the will of the public, so why shouldn’t the public have access to video of them doing their jobs? It seems to me that releasing these digital records will help dispel the suspicion that they have something to hide,” said Wilson in a press release Monday.

“Unfortunately, we’ve had incidents where officers have abused their power while on duty. There have also been instances where the media has exaggerated or provided inaccurate information about a case because they didn’t have the video and, therefore, didn’t have all the facts,” Wilson said.

The state Department of Public Safety’s audio and video recordings were public records until legislators exempted them in May 2005. (OKLA. STAT. tit. 51, § 24A.3(1)(h)(3))

Wilson’s legislation, SB 1252, would make the dashboard camera videos public once again.

In explaining why the media and general public should have access to the videos, Wilson noted altercations involving Oklahoma Highway Patrolman Daniel Martin.

Wilson added, “Transparency in government offers the public performance measures and accountability which can be monitored and reported by the media.”

In June, this blog called on legislators to close the exemption and undo the damage they did in 2005.

Let your state legislators know that you support SB 1252 and that they should restore the public's right of access to these important government records.

Joey Senat, Ph.D.
Associate Professor
OSU School of Journalism

Saturday, November 21, 2009

State employees group files criminal complaint alleging Open Meeting Act violation by state mental health board

A state employees group has filed a criminal complaint accusing the state mental health board of violating the Open Meeting Act when it approved a plan to lay off 100 employees, close centers and eliminate state's mental health beds for children.

Those actions were not listed on the board's Nov. 13 agenda.

Instead, the plan to cut the Department of Mental Health and Substance Abuse Services budget by $7.3 million was included in a monthly financial report.

The agenda item read, "Discussion and possible action regarding monthly financial report.”

Officials later told The Oklahoman that the board, which oversees the department, had voted only to accept the financial report and weren't taking action with that vote.

That tortured logic aside, the Tulsa World reported the board had voted separately on the reduction plan.

The Oklahoma Public Employees Association on Thursday asked the Oklahoma County district attorney's office to investigate whether the board violated the Open Meeting Act. (See coverage by The Oklahoman and Tulsa World.)

A violation of the Open Meeting Act is a misdemeanor punishable by a fine up to $500 and/or up to one year in the county jail for each count. (OKLA. STAT. tit. 25, § 314)

The state attorney general's office has warned public bodies not to use "report" on an agenda as a way to hide what they will be doing in a meeting.

For a detailed explanation of why the state mental health board seems to have violated the Open Meeting Act, please read an earlier posting on the FOI Oklahoma Inc. blog.

Joey Senat, Ph.D.
Associate Professor
OSU School of Journalism

Sunday, November 15, 2009

State mental health board agenda doesn’t mention plan to lay off 100 employees, close centers and eliminate state’s mental health beds for children

Public bodies were cautioned in September not to use “cryptic” agenda language to hide what they will do in a meeting.

“Don’t try to hide items of business by putting it under ‘report,’” warned the head of the state Attorney General's General Counsel Section.

The Attorney General’s Office prefers for such reports “to have bulleted points for items under the report,” said Gay Tudor during an open government workshop for public officials in September.

Members of the board governing the state’s mental health department must have missed that workshop. So must have the staff for the Department of Mental Health and Substance Abuse Services.

An agenda item for the board’s meeting Friday read, "Discussion and possible action regarding monthly financial report.”

In that report – but not mentioned on the agenda – were proposals to cut the department’s budget by $7.3 million, The Oklahoman reported Saturday.

The plan includes closing a men’s treatment center in Tahlequah, merging facilities in Norman, and eliminating all 40 of the department’s mental health beds for children.

So how did department officials justify not listing those details on the meeting agenda?

"This is something simply that we were proposing to the board,” said Dewayne Moore, the department’s general counsel. "They understand the financial report, and that’s what they voted to accept.”

“What they voted on was, they accepted our financial report, which was indicating the budget cuts,” he told The Oklahoman.

The department’s chief operating officer reasoned that board members weren’t taking any action with the vote.

"They’re not doing the reduction, they’re telling us, ‘You’re on the right path,’” Durand Crosby
told the newspaper.

However, the Tulsa World reported the board
voted separately on the reduction plan.

The comments by Moore and Crosby are another example of Oklahoma officials torturing logic to explain why they weren’t upfront with the public in the first place.

According to the department’s Web site, “A governing board provides oversight regarding Department functions and activity related to the care, treatment, and recovery of persons suffering from mental illness and substance abuse.”

The board members “set broad departmental policy” and “ensure the quality of mental health and substance abuse programs across Oklahoma,” according to the Web site.

Wouldn’t the decision to close facilities, lay off employees and eliminate the state’s entire complement of mental health beds for children fit within that job description?

But even assuming that the board isn’t charged with making that decision, why would that preclude listing on the agenda the details of the proposed cuts?

The Oklahoma Public Employees Association will investigate whether to file a complaint alleging a violation of the state Open Meeting Act, the organization’s director of policy and research told The Oklahoman. (Read OPEA blog.)

The employees might have a worthwhile case.

Agendas should be worded in “plain language, directly stating the purpose of the meeting, in order to give the public actual notice,” the Oklahoma Court of Civil Appeals has said. (Haworth Bd. of Ed., 1981 OK CIV APP 56, ¶ 9)

The purpose of the Open Meeting Act “to encourage and facilitate an informed citizenry’s understanding of the governmental processes and governmental problems . . . is defeated if the required notice is deceptively worded or materially obscures the stated purpose of the meeting,” the Court of Civil Appeals said. (Haworth, ¶ 8)

“[A]ny act or omission which has the effect of actually deceiving or misleading the public regarding the scope of matters to be taken up at the meeting” would be a “willful” violation of the Open Meeting Act. “This also includes agency action which exceeds the scope of action defined by the notice,” the court said. (Id. at ¶ 10)

The board’s Friday agenda certainly didn’t give the public actual notice.

The governor appoints the 11 members of the board. They are Chairman Joel Carson of Oklahoma City, Dr. Brent Bell of OKC; Bruce Fisher of OKC; Henry Haynes, Ed.D., of Vinita; Dr. Mary Anne McCaffree of OKC; Larry McCauley, Ed.D., of OKC; Robert McDonald of Norman; Dr. J. Andy Sullivan of OKC; Jack Turner of OKC; Ronna Vanderslice, Ed.D., of Weatherford; and Gail Wood of Stonewall.

As members of a public body entrusted with expending public funds and administering public property, they are expected to abide by the letter and spirit of the Open Meeting Act.

Because the Open Meeting Act was “enacted for the public’s benefit,” the Oklahoma Supreme Court said in 1981, the statute “is to be construed liberally in favor of the public.” (Int’l Ass’n of Firefighters v. Thorpe, 1981 OK 95, ¶ 7, 632 P.2d 408, 411)

Oklahoma attorneys general have said repeatedly, “The Open Meeting Act must be given a construction which will effectuate and not subvert the intention of the Legislature in facilitating an informed citizenry’s right to participate in government and understand why government acts affecting their daily lives are taken.” (See, e.g., 1980 OK AG 215, ¶12)

The principle is “very simple,” the state Court of Civil Appeals said in 1981. “When in doubt, the members of any board, agency, authority or commission should follow the open-meeting policy of the State.” (Matter of Order Declaring Annexation, Etc., 1981 OK CIV APP 57, ¶ 18)

In less than a year, we’ll have voted in a new governor. Between now and then, the gubernatorial candidates will have the opportunity to sign FOI Oklahoma Inc.’s Open Government Pledge and lay out their vision for a more open state government.

A commitment to abide by the letter and spirit of the Open Meeting Act should be an important criterion for the next governor’s appointees to public bodies.

Joey Senat, Ph.D.
Associate Professor
OSU School of Journalism

Thursday, November 12, 2009

Open Government Pledge signers elected to Tulsa mayor's office and three more seats on City Council

Three signers of FOI Oklahoma Inc.’s Open Government Pledge won seats on the Tulsa City Council and a fourth was elected as the city's mayor in the municipal election Tuesday.

A fifth signer
, Republican Bill Christiansen, was re-elected to his Tulsa City Council District 8 seat in the Sept. 8 primary.

Each has pledged that the city's government "will comply with not only the letter but also the spirit of Oklahoma's Open Meeting and Open Records laws.”

Dewey Bartlett Jr. and the council members take office Dec. 7.

Of the nine council districts, four will be represented by councilors who signed the pledge. They are
Roscoe Turner, D-Dist. 3; Jim Mautino, R-Dist. 6; Christiansen, R-Dist. 8; and G.T. Bynum, R-Dist. 9.

Tulsans should expect Bartlett and the four councilors to keep their promise
“to support at every opportunity the public policy of the State of Oklahoma that the people are vested with the inherent right to know and be fully informed about their government so that they can efficiently and intelligently exercise their inherent political power.”

Joey Senat, Ph.D.
Associate Professor
OSU School of Journalism

Thursday, November 5, 2009

Judge allows TV and newspaper Web site cameras in courtroom for pharmacist's murder trial

Oklahoma television stations and a newspaper's Web site will be allowed to have cameras in the courtroom
during the trial of a pharmacist charged with killing a would-be robber, an Oklahoma County district judge ruled today.

Judge Tammy Bass-LeSure granted a request from KWTV and KFOR in Oklahoma City and KOTV in Tulsa to televise Jerome Jay Erlsand's murder trial after the jury is selected.

The Oklahoman and also will be allowed to take photos inside the courtroom and to show the trial on the newspaper's Web site, the judge said.

No trial date has been set.

"Permitting news coverage with the assistance of video and audio recording will provide citizens far and wide the chance to observe with their own eyes and ears the proper conduct of an important judicial proceeding which they would be entitled to attend and observe in person, but for the limitations of space and work schedules," the news organizations contended in their motion to the judge.

Neither the prosecution nor the defense objected to televising the trial, according to the motion filed by the news outlets.

Under Oklahoma law, the initial decision to allow the cameras into the courtroom rested with Bass-LeSure, who is presiding over the trial.

In 1958, some 20 years before the U.S. Supreme Court adopted the same philosophy, the Oklahoma Court of Criminal Appeals reasoned that the mere presence of cameras in a courtroom does not inherently interfere with the defendant’s right to a fair trial. (Lyles v. State, 1958 OK CR 79, ¶¶ 21-23, 330 P.2d 734, 742)

Noting that it had allowed television cameras in its courtroom, the state court said, “Our experience is that when properly supervised by the court, there is neither disturbance, distraction, nor lack of dignity or decorum.”

The court contended that television cameras educate the public about the judicial system, explaining:

“There is no field of government about which the people know so little as they do about the courts. There is no field of government about which they should know as much, as about their courts. Those institutions of justice engaged in construing constitutional rights and interpreting legislative acts which will determine our enjoyment of life and liberty and our pursuit of happiness. What is more vital to the people? Many members of the legal profession who advocate the dissemination of knowledge for every purpose in all other fields rebel at the thought of the people being informed concerning the operations of the lawyers’ legal preserve. The courts do not belong to the lawyers but are institutions by, of, and for the people. In this modern age, it is well that the veil of mysticism surrounding our courts be removed and the people be confronted with reality. We are not afraid or ashamed and we must be consistent.”

However, the current standard for permitting cameras in Oklahoma courtrooms came about in 1997 when the Oklahoma Supreme Court adopted Judicial Canon 3(B)(10), which states:

“Except as permitted by the individual judge, the use of cameras, television or other recording or broadcasting equipment is prohibited in a courtroom or in the immediate vicinity of a courtroom.”

Even if the judge allows cameras, Canon 3(B)(10) permits the defendant to nix their use in the courtroom. As recently as 2000, Oklahoma and Alabama were the only states that required the consent of criminal defendants to televise their trials.

Oklahoma law also prohibits the photographing or broadcasting of any witness or juror who objects to the judge in advance.

Here is the rest of Canon 3(B)(10)’s wording:

• Before cameras, television or other recordings or broadcasting equipment are used, express permission of the judge must be obtained.
• The judge shall prescribe the conditions and specific rules under which such equipment may be used.
• Media personnel shall not distract participants or impair the dignity of the proceedings.
• No witness, juror or party who expresses any objection to the judge shall be photographed nor shall the testimony of such a witness, juror or party be broadcast or telecast.
• There shall be no photographing or broadcasting of:
(1) any proceeding which under the laws of this State are required to be held in private; or
(2) any portion of any criminal proceedings until the issues have been submitted to the jury for determination unless all accused persons who are then on trial shall have affirmatively, on the record, given their consent to the photographing or broadcasting.
• No media representative shall offer, nor shall any party, witness or juror accept, consideration in exchange for consent to telecast, broadcast or photograph the judicial proceeding.
• Representatives of the news media shall conduct themselves at all times in a professional manner consistent with the spirit and intent of this rule. In order to insure such conduct, if such conduct of the news media which violates any of these rules is brought to the attention of any judge, the offending person shall be notified to immediately cease and desist such activity. If the offending party refuses to comply with the order, the judge may act to end such activity, including the seizure of the equipment of such person. Any offender may be dealt with for contempt of court.
(Canon 3(B)(10) of the Oklahoma Code of Judicial Conduct, OKLA. STAT. tit. 5, Ch. 1, App. 4)

Joey Senat, Ph.D.
Associate Professor
OSU School of Journalism

Grady and Wagoner counties' fees for digital copies of assessments databases violate Open Records Act

Grady County's fee for an
electronic copy of its database of all real property assessments violates the state Open Records Act, a district judge ruled Monday.

The county assessor’s practice of charging 5 cents for the first 25,000 records and 2 cents thereafter was
“not limited to recovering only the reasonable, direct costs of record copying and any necessary record search,” said Judge Richard G. Van Dyck in a judgment and injunction issued Nov. 2. (Hurlbert v. Firestone, CJ-08-00790 (Grady Co.))

Another district judge ruled against Wagoner County's assessor for the same reason in October. (Hurlbert v. Thompson, CJ-07-00912 (Wagoner Co.))

Four times since July 2008, a district judge in Oklahoma has said such charges violate the state Open Records Act and limited the amount a county can charge for an electronic copy of a digital assessments database.

All four lawsuits were filed by Roger W. Hurlbert, an FOI Oklahoma Inc. member. Doing business as Sage Information Services in California, Hurlbert filed suit against Muskogee, Osage and Wagoner counties in 2007 and Grady County in 2008.

He won against Muskogee County in June and against Osage County in 2008.

On Monday, Van Dyck said Grady County may no longer charge more than $26 for a digital copy of its database of all real property assessments because the direct, reasonable cost of searching for and burning the records onto a CD or DVD is no more than that amount.

Under the state Open Records Act, public bodies “may charge a fee only for recovery of the reasonable, direct costs of record copying, or mechanical reproduction.” (OKLA. STAT. tit. 51, § 24A.5(3))

For microfiche or computer tapes, the “reasonable, direct costs” for copying should be “based upon the cost of materials [and] labor needed for providing the computer program and service to produce the requested data,” the Oklahoma Supreme Court said in 1992. (Merrill v. Oklahoma Tax Comm’n, 1992 OK 53, 831 P.2d 634, 642-43)

Judges barred Muskogee, Osage and Wagoner counties from charging more than $50 for an electronic copy of their assessments databases.

In all four cases, judges said each county's practice of charging 5 cents for the first 25,000 records and 2 cents thereafter violated the Open Records Act because that fee exceeded the reasonable, direct costs of searching for and burning the records onto a CD or other digital medium.

The judges in Grady, Muskogee and Osage counties said their rulings applied to anyone's request for the assessment databases. However, Wagoner County District Judge Darrell Shepherd limited his ruling to only Hurlbert's request.

Shepherd's ruling does not explain his reasoning for that peculiar difference. Would someone else requesting the same records be charged more or also have to go to court to challenge the fee? If the fee violates the law, it violates the law -- regardless of who requests the records.

In all four rulings, the judges have said Hurlbert is entitled to his reasonable attorney fees and costs.

Hurlbert’s original lawsuits were drafted by Douglas A. Wilson of the Tulsa law firm of Riggs, Abney, Neal, Turpen, Orbison & Lewis.

Wilson, who now practices in Stillwater and was elected to the FOI Oklahoma Inc. board of directors in January, represented Hurlbert in his Grady County lawsuit.

Joey Senat, Ph.D.
Associate Professor
OSU School of Journalism

Sunday, November 1, 2009

Public access to all police incident reports restored as of Nov. 1

Police incident reports not involving an arrest are once again open to the public under legislation that takes effect today.

House Bill 1049 rectifies a 2005 amendment to the Open Records Act that police departments interpreted as allowing the release of incident reports only pertaining to an arrest.

No arrest. No report.

Complaints about the new statutory language were ignored until an incident in February 2008 involving state Labor Commissioner Lloyd Fields.

Oklahoma City police detained Fields and took him to a detox center after he was suspected of stealing a professional bull rider’s guitar off the stage during a championship after-party.

Oklahoma City police refused to identify Fields as the person detained or release any details about the incident because no one had been arrested.

“"I can't verify that it happened," Oklahoma City Police Chief Bill Citty told The Oklahoman. "If a person is not technically arrested, then we can't release that information or anything about that."

Fields later apologized for the incident.

This past spring, Rep. John Carey, D-Durant, introduced HB 1049 to undo the 2005 amendment.

That previous statutory language allowed police to “prevent the public from learning about armed robberies, burglaries, murders or any other public safety issue that occurs just because an arrest isn’t made at the time of the incident,” The Enid News & Eagle pointed out.

“Incident reports are essential because they alert the public to what law enforcement is doing. The public needs to know what is going on in their communities. Openness prevents law enforcement from acting covertly without the public’s knowledge,” the newspaper said in support of HB 1049.

Under the Open Records Act, police now must make available "a chronological list of all incidents, including initial offense report information showing the offense, date, time, general location, officer, and a brief summary of what occurred." (OKLA. STAT. tit. 51, § 24A.8)

As introduced by Carey, the bill also would have required police to make public the "specific address, if known," of the incident and a brief statement "summarizing noninvestigatory observations and facts of what occurred at each incident."

Unfortunately, that additional language did not survive the legislative process.

Joey Senat, Ph.D.
Associate Professor
OSU School of Journalism