Tuesday, January 17, 2012

Newspaper editorial's right on message but wrong on law

I sincerely appreciate the basic message of The Oklahoman's editorial on Monday that police departments must follow the state Open Records Act.

The editorial, however, indicates that release of incident reports is subject to judicial review under the Open Records Act.

It is not.

The Open Records Act requires law enforcement agencies to make incident reports and other specified information available for public inspection. (Okla. Stat. tit. 51, § 24A.8(A)(1-8))

Police departments are given no leeway regarding these records.

Law enforcement agencies may deny access to other 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))

Contrary to the editorial, that is not a step that police have skipped. The burden is on the person seeking the records to ask a court to rule in favor of access.

The problem in Edmond and elsewhere involved police departments claiming that incident reports are part of investigatory files that may be withheld from the public at the discretion of the law enforcement agencies.

Incident reports are not part of such investigatory files.

As Attorney General Scott Pruitt recently agreed, the Open Records Act clearly distinguishes between incident report information that must be made available for inspection when requested and investigatory files that may be closed to the public

The Open Records Act states, "Access to records which, under the Oklahoma Open Records Act, would otherwise be available for public inspection and copying, shall not be denied because a public body or public official is using or has taken possession of such records for investigatory purposes or has placed the records in a litigation or investigation file." (Okla. Stat. tit. 51, § 24A.20)

As Pruitt agreed, incident reports must be made available to the public when requested.

The Open Records Act does not empower law enforcement agencies to ask a court to block public access to incident reports.

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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