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.

Friday, November 11, 2011

Prepared Remarks, News Coverage of Interim Study on Legislative Transparency

Good Morning Rep. Jason Murphey and Members of the House Government Modernization Committee:

Thank you for this opportunity to discuss with you the issue of government transparency at the state Legislature.

I will begin by pointing out that Oklahoma’s Open Records Act starts with the following statement of principle:
As the Oklahoma Constitution recognizes and guarantees, all political power is inherent in the people. Thus, it is 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.
The stated purpose of the Open Records Act is "to ensure and facilitate the public's right of access to and review of government records so they may efficiently and intelligently exercise their inherent political power."

Similarly, the Oklahoma Open Meeting Act states, "It is the public policy of the State of Oklahoma to encourage and facilitate an informed citizenry's understanding of the governmental processes and governmental problems."

Those statutes eloquently declare important principles. As one author has noted, "A basic tenet of a healthy democracy is open dialogue and transparency."

However, the Oklahoma Legislature appears to be one of only three in the nation to still be explicitly exempted from its state open records law.

In contrast, the open records statutes of our neighboring states – Arkansas, Colorado, Kansas and Texas – have been interpreted to include their respective state legislatures.

In at least 40 states, the legislature must abide by its open records law to at least some degree. Records of these legislatures are often open to the same extent as records of other public bodies.

Oklahoma's Legislature also appears to be one of only seven nationwide to be explicitly exempted from its open meeting law.

In contrast, meetings of the state legislative bodies in Arkansas, Colorado, Kansas and Texas are opened to the public, to varying degrees, by either statutory or constitutional provisions.

In all, state legislative bodies in 36 states must meet in the open to some degree because of a statutory or constitutional provision.

In Minnesota, for example, the legislature in 1990 passed a statute that is separate from the state Open Meeting Act and that requires all its meetings to be open. This includes the floor sessions and joint sessions of both chambers and meetings of standing committees, subcommittees, conference committees and legislative commissions.

Courts may not interpret or enforce the statute. Instead, each chamber adopts rules to implement it as well as the remedies for violations.

The House and the Senate allow anyone to file a written complaint alleging a violation of the open meeting requirements.

Under the House rules, the Speaker must investigate the complaint promptly. If the Speaker concludes that a violation may have occurred, the Speaker must refer the complaint to the Committee on Ethics for further proceedings.

In the Senate, the written complaint is submitted to the Chairman of the Committee on Rules and Administration, who must immediately forward the complaint to the Subcommittee on Ethical Conduct.

Such an approach here could alleviate concerns that a separation of powers prevents the courts from enforcing the Open Meeting and Records acts against the Oklahoma Legislature.

Regardless of the approach in Oklahoma, a need to protect legitimate privacy and confidentiality concerns will preclude some records and meetings from being open to the public. But legislators should strive for the greatest transparency while exempting only truly confidential information from disclosure.

In fact, medical records and similarly private information are already exempted from the otherwise public documents of state and local agencies.

In the context of legislative records, personal communications to a legislator in which a person exercises rights under the federal or state constitutions could be exempted from public disclosure. In fact, an exemption for personal communications exercising constitutional rights already exists under the Open Records Act.

But I urge you not to exempt communications to a legislator from other government officials or from registered lobbyists.

As noted earlier, the purpose of Oklahoma's Open Meeting and Open Records laws is to ensure and facilitate the public’s understanding of governmental processes and problems.

That understanding occurs best when the public observes frank and open discussions by its elected officials.

As our state Supreme Court said, "If an informed citizenry is to meaningfully participate in government or at least understand why government acts affecting their daily lives are taken, the process of decision making as well as the end results must be conducted in full view of the governed."

Exempting the Legislature from our state’s open government laws diminishes the public's role as a watchdog over the elected officials who most directly shape our state's policy and laws.

Without advance knowledge of what measures a government body will discuss and vote on, the public is deprived of its right to witness such decisions being made.

The public must have the opportunity to watch firsthand the debate in which alternatives are weighed, accepted or rejected. The reasoning of our elected officials is as important as their vote.

Implementing greater transparency at the state Legislature also would help foster public confidence in this body and in state government overall.

As U.S. Sen. Russell Long noted in 1964:
A government by secrecy benefits no one. It injures the people it seeks to serve; it damages its own integrity and operation. It breeds distrust, dampens the fervor of its citizens and mocks their loyalty.
These principles are true whether the public body is a city council or the state Legislature.

When a legislature avoids open government laws, it doesn’t build the public's trust or confidence. Instead, it raises suspicion that corruption is occurring behind those closed doors. It creates the appearance that back-room deals are being cut. It fosters incompetency and mediocrity.

Consider, for example, this Tulsa World editorial this past January, "Senators [and representatives] have nothing to fear from letting the public know what they are doing, unless they're doing something they don't want the public to know about."

Oklahomans expect their legislators to operate with the same public scrutiny required – rightfully so – of our other state and local officials.

I will close by acknowledging that operating in the open is certainly not always the most convenient or easiest way to conduct the public's business.

But in a democracy, it's the right way.

Thank you again for this opportunity.

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

Click on link for annotated version of these remarks.

News Coverage:

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.

Wednesday, November 9, 2011

Requiring Legislature to abide by Oklahoma's open government laws is subject of interim study committee hearing Thursday

A Delaware senator will tell Oklahoma lawmakers on Thursday how her General Assembly conducts public business while complying with that state's open government laws.

Democrat Karen E. Peterson was instrumental in ending the Delaware General Assembly's self-imposed exemption from that state's open meeting and records laws in 2009.

An Oklahoma House committee is studying legislation to do the same here.

The House Government Modernization Committee, chaired by state Rep. Jason Murphey, will meet at 9 a.m. in Room 432A of the state Capitol.

Audio of the hearing will be streamed live on the House website and remain posted.

All documents and presentations used during the hearing will be posted. As will the interim study report.

Other speakers are Peter J. Rudy of Oklahoma Watchdog and myself.

The interim study, titled "Enhancing Transparency of the Legislative Process," will "focus on the positive effects of recent legislative rule changes and analyze the possible application of open records and meetings laws to legislative proceedings."

Murphey, a Guthrie Republican, requested the study after his bill requiring the Legislature to abide by the Open Meeting and Open Records laws died in a House committee during the last legislative session.

Murphey proposed adding the Legislature to the definition of public body under the Open Records and Open Meeting acts while removing its exemption from the statutes.

But HB 1085 wasn't taken up by the House Judiciary Committee chaired by Rep. Fred Jordan, R-Jenks.

In Delaware, political observers credited removing the General Assembly's overall FOI exemption with making the budget process more transparent and with cutting down on legislative shenanigans in the waning hours of the session.

By contrast in Oklahoma, a state trial judge last week indicated that "unseemly actions and even unethical behavior" are "business as usual" in the state Legislature.

In ruling that prosecutors have sufficient evidence against state Rep. Randy Terrill and former Sen. Debbe Leftwich for a bribery trial, Oklahoma County Special Judge Stephen Alcorn said,
Judges tend to be a bit cynical and tend to be realistic, but the court admits to being disappointed in what has repeatedly been described as business as usual at the Capitol.
Oklahoma legislative leaders should pay heed to a recent study that found strong state open government laws reduce corruption levels and increase the probability that corrupt acts are detected.

Sunshine goes a long way as disinfectant.

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.

Tuesday, November 8, 2011

AG's Office to Public Officials: List information about impending lawsuits, claims under agenda items for executive session; Staff documents given to members of public body are not 'drafts' exempted under Open Records Act

At least the nature of an impending lawsuit or claim should be listed on the agenda item for an executive session under the Open Meeting Act's attorney-client privilege, an official with the state Attorney General's Office said Monday.

"The public has a right to know what you are going to discuss in an executive session," said Rob Hudson, first assistant attorney general.

He spoke to more than 200 government officials, news media and other members of the public at a Monday seminar in Oklahoma City. The next workshop on the state freedom of information laws will be Nov. 14 at the High Plains Technology Center in Woodward.

The seminars are free and open to the public. Registration is not required. The workshops are sponsored by Attorney General Scott Pruitt, the Oklahoma Press Association, Oklahoma Newspaper Foundation and FOI Oklahoma Inc.

The Open Meeting Act permits public bodies to conduct executive sessions to discuss
confidential communications between a public body and its attorney concerning a pending investigation, claim, or action if the public body, with the advice of its attorney, determines that disclosure will seriously impair the ability of the public body to process the claim or conduct a pending investigation, litigation, or proceeding in the public interest. (OKLA. STAT. tit. 25, § 307(B)(4))
The statute also states, "If a public body proposes to conduct an executive session, the agenda shall:
  • Contain sufficient information for the public to ascertain that an executive session will be proposed;
  • Identify the items of business and purposes of the executive session; and
  • State specifically the provision of Section 307 of this title authorizing the executive session." (OKLA. STAT. tit. 25, § 311(B)(2)(a-c))

Hudson said listing only the specific statutory authorization for the proposed executive session under the attorney-client privilege would be a violation of the Open Meeting Act.

Hudson reiterated what Pruitt told a state agency in September: The agenda item should list information such as the name of the parties in the lawsuit.

"How else would the average person know what you are talking about," Hudson explained.

If the lawsuit or claim has not been filed, then the agenda item should include "at least the nature of it," Hudson said. "More is better."

On other Open Meeting Act issues, Hudson ...
  • Warned against taking "straw polls" in executive sessions;
  • Said a roll-call vote isn't required by the Open Meeting Act, "but it's the smart thing to do"; and
  • Warned that a majority of a public body should not take action or discuss public business by phone, email or even Facebook.

Speaking about the Open Records Act, another member of Pruitt's staff warned governments against charging more than the direct, reasonable cost of copying documents.

"This isn't supposed to be a money-making operation," said Diane Clay, communications director for the Attorney General's Office.

Clay also agreed that staff memoranda and other documents are public records when given in agenda packets to members of public bodies.

The Oklahoma Open Records Act contains no provision for "drafts." Instead, the statute permits governments to keep confidential "personal notes and personally created materials . . . prepared as an aid to memory or research leading to the adoption of a public policy or the implementation of a public project."

The exemption applies only prior to the official "taking action, including making a recommendation or issuing a report." (OKLA. STAT. tit. 51, § 24A.9)

Clay reminded officials of the statute's purpose: "Ensure and facilitate the public’s right of access to and review of government records so they may efficiently and intelligently exercise their inherent political power." (OKLA. STAT. tit. 51, § 24A.2)

Similarly, Hudson told officials to keep in mind the purpose of the Open Meeting Act: "Encourage and facilitate an informed citizenry’s understanding of the governmental processes and governmental problems." (OKLA. STAT. tit. 25, § 302)

He noted that the Oklahoma Supreme Court said the Open Meeting Act "is to be construed liberally in favor of the public" because the statute was "enacted for the public’s benefit." (Int’l Ass’n of Firefighters v. Thorpe, 1981 OK 95, ¶ 7)

And, Hudson pointed out, the Court of Civil Appeals held that "strict adherence to the letter of the law is required" and that "substantial compliance" is insufficient. (Matter of Order Declaring Annexation, Etc., 1981 OK CIV APP 57, ¶¶ 20-21)

Ultimately, Hudson warned officials: "The Open Meeting Act is the law. Don't break the law."

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.

Saturday, November 5, 2011

Washington County Judge dismisses BRTA lawsuit, says Oklahomans aren't entitled to sue to enforce Open Meeting Act unless specifically harmed by alleged violation

A Washington County judge sided with the Bartlesville Redevelopment Authority on Friday, dismissing a lawsuit alleging an Open Meeting Act violation by the public body.

In a 10-page ruling, Associate District Judge Russell Vaclaw said the plaintiffs, Joel Rabin and Sharon Hurst, made no claims that "their personal, contractual, or proprietary interests were affected by any decision by the BRTA in an executive session. Nor is there any specific claim of any specific class that they claim to represent."

Plaintiffs suing under the Open Meeting Act must demonstrate they "were directly harmed by the wrongful actions of a government in violation of the OMA," Vaclaw said. The statute "does not appear to allow for an avenue for a complaining party to simply complain that the government violated the OMA without showing any other harm to the individual."

The remedy for Oklahomans "who have no concern but that their government is working in the dark ... is a criminal prosecution for any willful violations," Vaclaw said. "If there was wrongdoing, charges could be filed or the matter may be presented to a grand jury.

"If the legislature intended to allow for a private remedy, then it is their responsibility to change the law, not this Court," he said. "To date, the legislature has not changed the remedies available under the OMA."

Rabin and Sharon alleged that the BRTA purposefully misled the public about the purpose of its Aug. 11, 2010, executive session.

The agenda for the meeting said the closed-door session would be to "Discuss Pending and/or Impending Investigations, Claims or Actions Affecting the BRTA." However, the agenda did not identify the specific item of business to be discussed in the executive session.

Vaclaw approved of the BRTA having used "impending" on the agenda. He noted that a 2005 attorney general opinion on the meaning of "pending" equated it with "impending." (2005 OK AG 29, ¶ 9)

In deciding that Hurst and Rabin had no right to sue, Vaclaw relied upon the state Supreme Court's three-part test in Holbert v. Echeverria, 1987 OK 99, ¶ 8, for determining if a private cause of action can be inferred from a regulatory statute:
  1. The plaintiff is one of the class for whose special benefit the statute was enacted;
  2. There is some legislative intent, explicit or implicit, suggesting that the legislature wanted to create a private remedy; and
  3. Implying a remedy would be consistent with the underlying purposes of the legislative scheme.
Applying the test, the court in Holbert said private individuals had no right to sue for a violation of the state's Consumer Protection Act. The home buyers were not part of a class of persons for whose "especial benefit" the statute was enacted, the court said.

It explained that adopting "a broad construction for establishing a class would render the first factor ... virtually meaningless. When a statute is created for the benefit of the public at large, no special class is created in its wake simply because a remedy for injured persons is fashioned." (Id. ¶ 9) The court reasoned:
It is difficult to think of a term broader or more general than "consumer." Every individual, regardless of one's occupation, does in some respect occupy on a daily basis the status of consumer. Because everybody stands included, the term "consumer" does not describe any special class, but rather the public at large. Inasmuch as the Act is for the benefit of the general public, no special class is established for whose especial benefit it was created. (Id. ¶ 10)
Vaclaw noted that after the Holbert ruling, state legislators amended the Oklahoma Consumer Protection Act "to expressly provide for a private right of action."

Attorneys for Rabin and Hurst had pointed to a string of Oklahoma appellate court decisions involving plaintiffs suing public bodies over alleged Open Meeting Act violations.

But Vaclaw said that in all those cases, the plaintiffs "had some specific statutory, contractual or proprietary interest which allowed them to seek specific relief in those particular situations."

He agreed that the Open Meeting Act "exists for the benefit of the general public."

"But that does not grant a right to every individual citizen to sue the government body in civil court every time they believe the government violated the OMA," he said.

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.

Thursday, November 3, 2011

Clery Act: Campus crime logs required for public, private universities, colleges receiving federal funding

Oklahoma's Open Records Act doesn't require state universities and colleges to keep a public log of reported crimes.

But a federal law does.

The Clery Act requires public and private post-secondary schools that receive federal funding and maintain a police or security department to keep a daily crime log that is open to public inspection and is readily understandable. (34 CFR 668.46(f)) (20 USC §1092(f)(4)(A)(B))

The statute also imposes a number of important conditions on those crime logs that differ from the Open Records Act's requirements for such records, including:
  • Crimes must be added to the log within two business days of their initial report to the campus police or the campus security department.
    • This time requirement also covers any addition to an entry or change in the disposition of a complaint. For example, federal education officials note, if the disposition of a crime is "pending" and an arrest is made later, the school has two business days to update the disposition on the original entry.
    • Schools aren’t required to update dispositions for crimes more than 60 days old.
    • A business day is defined Monday through Friday, except for days when the school is closed.
    • The only exceptions to this rule are if the disclosure is prohibited by law or would jeopardize the confidentiality of the victim.

  • The log is required to include the nature, date (occurred and reported), time and general location of each crime, and its disposition if known.
    • The description of the location must mean something to the campus community.
    • But the location must not lead to identification of the victim.

  • Victims' names must be redacted. This requirement supersedes the state Open Records Act, which has no such provision.

  • Schools may temporarily withhold information only if there is clear and convincing evidence that the release of information would:
      • Jeopardize an ongoing investigation;
      • Jeopardize the safety of an individual;
      • Cause a suspect to flee or evade detection; or
      • Result in the destruction of evidence.

    • The school may withhold only the information that could cause the adverse effect.
    • That information must be disclosed once the adverse effect is no longer likely.
    • The person deciding to withhold the information should document the reason.

  • The crime log for the most-recent 60 days must be open to public inspection, upon request, during normal business hours.
    • Schools may not require a written request.
    • Anyone may have access to the log, including media not associated with the school.
    • Logs older than 60 days must be made available for inspection within two business days of the request.
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications

Wednesday, November 2, 2011

FOI Oklahoma asks state Supreme Courts to drop proposed rules that would limit information in court records

Oklahomans have until Friday to tell the state Supreme Court what they think of proposed rules that would ban personal information from court records.

Here is FOI Oklahoma's letter to the court:

Freedom of Information Oklahoma Inc. asks the Oklahoma Supreme Court to reconsider its proposed rules that would remove personal information from criminal and civil court records.

FOI Oklahoma is a statewide organization founded in 1990 to educate the public on rights of the First Amendment and to promote openness in government. It has a broad based membership including journalists, attorneys, librarians and others interested in preserving the free flow of information.

The organization believes the court’s proposed rules are over broad and would negatively impact basic information that every citizen of the state should be able to access easily.

Especially chilling is the proposal to redact personal identification information. The public would lose its ability to track defendants in criminal and civil cases.

Although the court has said it does not want to limit access to court documents; that appears to be exactly what the proposed rules would do.

It is in the best interest of the public to have as much information available as possible. Erasing this information as proposed by the court would be a step back, not a step forward.

FOI Oklahoma endorses former Attorney General Drew Edmondson’s statement opposing any rule or legislation that limits the public’s right to know. Edmondson said that as a former prosecutor, having access to identification such as dates of birth on criminal court records is important.

FOI Oklahoma applauds the court’s work in making court records available electronically.
However, the organization feels removing personal identifiers from these records negates any positive aspect of electronic records.

FOI Oklahoma hopes the court will recognize the public’s right to full access of this information far outweighs all other concerns.


Bryan Dean, President, FOI Oklahoma
Staff Writer, The Oklahoman