Tuesday, August 30, 2011

Rogers County judge rules police dash-cam video not public record under Open Records Act

The Claremore Police Department's dash-cam recordings are not public records under the state Open Records Act, a Rogers County judge ruled Tuesday.

But requesters may ask a court to find that the release of a particular recording would serve a public interest that outweighs the reason for denial, noted Associate District Judge Sheila A. Condren.

Two attorneys who specialize in drunken-driving cases -- Stephen G. Fabian Jr. of Oklahoma City and Josh D. Lee of Ward & Lee -- sued Claremore and Catoosa in June for access to their police departments' dash-cam recordings.

Condren's ruling in favor of Claremore was a surprise given that the city of Catoosa in June agreed to release its police department's audio and video recordings and because local law enforcement agencies typically release such recordings.

For example, the Oklahoma County sheriff last week released the dash cam video of a head-on collision in which a deputy was injured.

Condren's ruling contradicted an Oklahoma County district judge's 2005 ruling that favored Fabian by barring "the Oklahoma Highway Patrol from keeping videotapes of traffic arrests secret." (That ruling spurred legislators that year into exempting all Department of Public Safety dash-cam audio and video recordings.)

Her ruling also seems at odds with a 2004 state Supreme Court ruling also in favor of Fabian. The court ruled that DPS recordings of administrative hearings concerning revocation of drivers' licenses were public under the Open Records Act. (Fabian & Assoc., P.C., v. State ex. rel. Dept. of Public Safety, 2004 OK 67)

The Supreme Court held that the requested tapes contained facts concerning arrests and therefore were open under the Open Records Act. (Id. ¶ 14)

The statute makes public the "facts concerning the arrest, including the cause of arrest and the name of the arresting officer." (OKLA. STAT. tit. 51, § 24A.8(2))

"By this statute," the Supreme Court said, "DPS is required to make available for public inspection facts concerning the arrest. Fabian asserts that the requested tapes contain the facts concerning the arrest and therefore § 24A.8(A)(2) requires the tapes to be open for public inspection. We agree."

The Claremore police department's dash-cam recordings certainly contain facts concerning arrests.

Even Condren noted that the Claremore Police Department's dash-cam audio and video was "the only recording possessed by CPD of Plaintiff's client regarding the DUI stop and arrest."

But Condren said the Supreme Court case dealt "with what amounts to a transcript of a public hearing."

"In contrast, the 'dash cam' recording is a direct piece of evidence," she said. "As a result, the Court finds the Fabian case distinguishable from the facts presented at bar, and finds the 'dash cam' recording is not a public record pursuant to Title 51 O.S. § 24A.8 which is subject to public inspection."

The Supreme Court had interpreted the Open Records Act as requiring certain information in the hands of law enforcement to be made public.

Condren, however, read the statute as listing documents that must be public. And dash-cam recordings are not specified. (See OKLA. STAT. tit. 51, § 24A.8(1-8))

Condren's ruling is a blow to the public's need to know in Oklahoma. Other local law enforcement agencies are likely to cite it as a reason for not releasing their dash-cam videos.

But Fabian and Lee aren't likely to give up in this case, so we can hope that an appellate court will put dash-cam recordings firmly back in the realm of public information.

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, or its board of directors. Differing interpretations of open government law and policy are welcome.

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