Saturday, November 19, 2011

Update: Owasso city manager says public interest in releasing lapel camera video of police lieutenant using excessive force doesn't outweigh protecting his right to appeal firing

Owasso City Manager Rodney J. Ray this week refused local newspapers' requests for a copy of lapel camera video showing a police lieutenant using excessive force for which he was fired.

Arrest videos are not included in the eight categories of law enforcement records that must be released under the state Open Record Act, Ray said in an email Tuesday to the Owasso Reporter and Tulsa World. (See OKLA. STAT. tit. 51, § 24A.8(A)(1-8))

The statute allows police departments to deny access to other law enforcement records "except where a court finds that the public interest or the interest of an individual outweighs the reason for denial." (OKLA. STAT. tit. 51, § 24A.8(B))

Former police Lt. Michael Denton was fired Nov. 4 based on an official determination that he had used excessive force in the June 30 arrest of a Collinsville man.

Police Chief Dan Yancey said a police officer lapel camera captured video that was useful in the investigation of the complaint against Denton.

Ray, in denying the newspapers' Open Records Act request for the video, said Denton is "entitled under both local and state law to appeal his termination to the City of Owasso's Personnel Board and to also seek binding arbitration."

"After consideration of a number of factors including rights of arbitration and appeal guaranteed by law to the employee, the City of Owasso has determined that disclosure of the arrest video is not appropriate and does not believe the public interest outweighs the reasons for denial of this request," Ray said. "Therefore, requests for release of [the] arrest video must be declined."

Denton's attorney has said his client did not use excessive force and his firing was unjustified. Denton has initiated a grievance through the Fraternal Order of Police, the Owasso Reporter said Nov. 10.

But Ray didn't explain how public disclosure of the video would jeopardize Denton's rights of arbitration and appeal. Wouldn't the video be introduced as evidence in such proceedings? Wouldn't those officials make a decision based on evidence, not on public opinion? Will the video be released once the arbitration is completed?

As for whether the video should be considered a law enforcement record that must be disclosed, Ray's reasoning follows a Rogers County judge's ruling in August.

Associate District Judge Sheila A. Condren held that the Claremore Police Department's dash-cam recordings are not public records under the state Open Records Act.

She said requesters could ask a court to find that the release of a particular recording would serve a public interest that outweighs the reason for denial.

However, Condren's ruling on the status of police videos runs contrary to relevant cases and to common practice in the state.

In 2005, an Oklahoma County district judge barred "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.)

A year earlier, the state Supreme Court that Department of Public Safety 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 Owasso lapel camera video certainly contains facts concerning the arrest of the Collinsville man in which the excessive force occurred.

Other local law enforcement agencies typically release such recordings. In June, for example, Catoosa officials agreed to release that police department's audio and video recordings. In August, the Oklahoma County sheriff released the dash cam video of a head-on collision in which a deputy was injured.

The public certainly has an interest in seeing how those entrusted with enforcing our laws are doing their jobs.

State legislators should resolve this issue by updating our Open Records Act to explicitly defining audio and video recordings of arrests as law enforcement records that must be disclosed along with incident reports and other information related to arrests.

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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