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An amended version of House Bill 2605 would still let county clerks refuse to provide electronic records, but now it sets a fee of up to 15 cents per page or $75 per book.
The House Government Modernization Committee is scheduled to vote Thursday afternoon on the bill.
At least one county clerk opposed the original version of the bill.
"The records belong to the public, and while the clerks are charged with protecting and preserving them, in no way does that include denial of access to the information because of the format," Wagoner County Clerk Carolyn Kusler told me last week.
However, Kusler said she would like for the Legislature to set a copy fee for digital images just as it has for paper documents. Her suggestion was a $5 fee for each CD, plus 10 cents per image on the CD.
Rep. Gus Blackwell amended his bill Tuesday to include the 15 cents per page or $75 per book.
But Blackwell would still exempt county clerks from an Open Records Act requirement that records be provided in an electronic format if kept that way.
County clerks are mad at oil companies and at private companies that buy large amounts of land records to sell on websites. That threatens the clerks' copy money they use to run their offices.
But public records aren't supposed to be money-makers for government agencies.
And since 2000, a $5 fee has been added to each land instrument recorded with each county clerk solely to "increase the net funding level available to the county clerk to maintain and preserve public records." (OKLA. STAT. tit. 28, § 32(D))
The "County Clerk's Records Management and Preservation Fund" is "for the purpose of preserving, maintaining, and archiving recorded instruments including, but not limited to, records management, records preservation, automation, modernization, and related lawful expenditures." (OKLA. STAT. tit. 28, § 32(C))
HB 2605 would allow county clerks to refuse to "provide any record by electronic means."
While revenue from electronic copies of land records seems to be the reason for the bill, county clerk offices are home to a host of other public documents, such as the receipts and expenditures by county governments, including the payroll for all county employees and all claims for payment for goods and services.
County clerks should not get to chose who obtains the more useful electronic copies of those records and who is stuck with paper copies.
Rep. Jason Murphey, R-Guthrie, jason.murphey@okhouse.gov, chairs the Government Modernization Committee. The other members are:
David Brumbaugh, R-Tulsa, david.brumbaugh@okhouse.gov;
Josh Cockroft, R-Tecumseh, josh.cockroft@okhouse.gov;
David Derby, R-Owasso, david.derby@okhouse.gov;
Mark McCullough, R-Supulpa, mark.mccullough@okhouse.gov;
Lewis H. Moore, R-Arcadia, lewis.moore@okhouse.gov;
Richard Morrissette, D-Oklahoma City, richard.morissette@okhouse.gov;
Seneca Scott, D-Tulsa, seneca.scott@okhouse.gov;
Aaron Stiles, R-Norman, aaron.stiles@okhouse.gov;
Wes Hilliard, D-Sulphur, wes.hilliard@okhouse.gov;
Randy Terrill, R-Moore, randyterrill@okhouse.gov;
John Trebilcock, R-Broken Arrow, john.trebilcock@okhouse.gov; and
Purcy D. Walker, D-Elk City, purcy.walker@okhouse.gov.
To read previous postings about HB 2605:
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.
Oklahoma legislators would have to give public notice of their meetings and open most of their records to public inspection, under a bill scheduled for a House committee vote Thursday.
House Bill 1085 by Rep. Jason Murphey is before the House Government Modernization Committee, which the Guthrie Republican chairs.
The committee members' email addresses and home pages are linked at the end of this posting if you want to tell them what you think of HB 1085 prior to Thursday afternoon's vote.
Murphey, House Speaker Kris Steele, and Sen. David Holt will discuss legislative transparency at the state's fifth annual Sunshine Week conference on March 10 in Oklahoma City. They will explain proposals requiring the state Legislature to comply with our open government laws.
Legislators exempted themselves from the Open Meeting and Open Records acts when the statutes were passed decades ago.
HB 1085 would create the "Oklahoma Legislative Open Records and Meetings Act."
Under the bill, the House and Senate, as well as their committees, would have to post notices of meetings 48 hours in advance and agendas 24 hours in advance.
However, partisan caucuses would be exempted, and any meeting could be closed to the public "for cause" by the House speaker or the Senate president pro tem. The reason for the closure would have to be posted in writing and signed by the speaker or president pro tem.
The bill opens all records of legislative entities for inspection and copying. It specifically defines a record as all documents "created by, received by, under the authority of, or coming into the custody, control of or possession of a legislative entity." It defines a legislative entity as the House, Senate and Legislative Service Bureau.
Murphey said the bill is intended to open the records of individual legislators. For example, correspondence among legislators and between legislators and registered lobbyists would be public records.
Four sets of records would be exempted:
- Communications between legislators and their district constituents who aren't registered lobbyists;
- "Materials in the possession of a legislative entity originating from another state agency that are otherwise exempt from disclosure under" the Open Records Act.
- Documents "relating to internal personnel investigations not leading to loss of pay, suspension, demotion or termination; and
- "Personnel records where disclosure would constitute a clearly unwarranted invasion of personal privacy of employees such as employee evaluations, payroll deductions and employment applications submitted by a person not hired.
Records of "work product directly related to the creation of legislation" would become public "simultaneously to the first legislative deadline at which the legislation is made available to the public."
The same would be true for "work product directly related to the development of legislation subsequently not filed by the author." Embargoes on these records would be "lifted simultaneously to the first legislative deadline at which the proposed legislation would have been made available to the public."
The bill limits copy fees to 10 cents per page and $10 per gigabyte for data.
However, the bill exempts the news media, but not the general public, from paying legislative staff to search for records. It doesn't define "news media." Will that include citizen journalists in an age when newspapers and broadcast stations are cutting back on reporters?
To avoid that can of worms, the bill should be amended to use language from the Open Records Act:
In no case shall a search fee be charged when the release of records is in the public interest, including, but not limited to, release to the news media, scholars, authors and taxpayers seeking to determine whether those entrusted with the affairs of the government are honestly, faithfully, and competently performing their duties as public servants.
After all, the bill says, "It is the public policy of the Legislature ... to encourage and facilitate an informed citizenry’s understanding of the legislative process."
And the bill's purpose is to "provide the public with the means to hold their legislators to account so that the public may exercise their inherent political power."
Record denials may be appealed to oversight committees, which would be designated by the House speaker or Senate president pro tem "with the responsibility of adjudicating ethics or rules-related matters for the respective chamber."
The oversight committee must meet "as soon as practical" and "cast a public vote either denying or directing the release of the requested record."
Anyone could also file a complaint with the oversight committee alleging a violation by the Legislature of the open records or meeting provisions. The committee would be required to "investigate the complaint as soon as practical" and "hold a public vote substantively addressing each filed compliant."
Overall, the bill represents a significant step forward in transparency for the Legislature. Tell members of the Government Modernization Committee what you think of HB 1085 prior to their vote Thursday.
Besides Murphey (jason.murphey@okhouse.gov), the committee members are:
David Brumbaugh, R-Tulsa, david.brumbaugh@okhouse.gov;
Josh Cockroft, R-Tecumseh, josh.cockroft@okhouse.gov;
David Derby, R-Owasso, david.derby@okhouse.gov;
Mark McCullough, R-Supulpa, mark.mccullough@okhouse.gov;
Lewis H. Moore, R-Arcadia, lewis.moore@okhouse.gov;
Richard Morrissette, D-Oklahoma City, richard.morissette@okhouse.gov;
Seneca Scott, D-Tulsa, seneca.scott@okhouse.gov;
Aaron Stiles, R-Norman, aaron.stiles@okhouse.gov;
Wes Hilliard, D-Sulphur, wes.hilliard@okhouse.gov;
Randy Terrill, R-Moore, randyterrill@okhouse.gov;
John Trebilcock, R-Broken Arrow, john.trebilcock@okhouse.gov; and
Purcy D. Walker, D-Elk City, purcy.walker@okhouse.gov.
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.
Wagoner County Clerk Carolyn Kusler said she told a state representative that records in her office should be provided to the public regardless of format, but she would like for the Legislature to set a copy fee for digital images just as it has for paper documents.
"The records belong to the public, and while the clerks are charged with protecting and preserving them, in no way does that include denial of access to the information because of the format," Kusler told me this week.
I had asked for her opinion on Rep. Gus Blackwell's House Bill 2605, which would allow county clerks to refuse to "provide any record by electronic means."
While revenue from electronic copies of land records seems to be the reason for the bill, county clerk offices are home to a host of other public documents, such as the receipts and expenditures by county governments, including the payroll for all county employees and all claims for payment for goods and services.
Unlike other government officials subject to the Open Records Act, county clerks would get to chose who gets the more useful electronic copies of those records and who is stuck with paper copies.
The House Government Modernization Committee will likely vote on the bill next Thursday morning. If you want to tell committee members what you think of the bill, you can reach them through the committee's Web page.
The bill appears driven by county clerks opposed to providing electronic copies of land records to anyone but KellPro, a Duncan, Okla., company.
Some clerks apparently are upset by other private companies that buy large amounts of land records to sell on websites. That threatens the copy money that those clerks use to run their offices.
Kusler provides free online access and public viewing stations for land records in her office.
She received FOI Oklahoma's 2009 Sunshine Award for her efforts to improve access to county records.
Kusler said that when Blackwell asked for input from county clerks, "I told him that I was all for providing the public with information stored in my office, no matter the format."
But she would like for the Legislature to standardize the fee that all clerks charge for digital records.
"One of the problems with electronic data is that the legislature has not set a fee for digital images like has been set for paper copies," said Kusler.
"In the interests of providing the public information in all formats, rather than denying the provision of information in electronic format, I would prefer that a fee per image be established by the Legislature and that this fee be included in our fee schedule," she said.
Kusler recommended a $5 fee for each CD, plus 10 cents per image on the CD. The revenue would be deposited into the clerk's lien fee account, which is where the copy money goes, she said.
"This approach would compensate the clerks for the work involved and the supplies that must be on hand to meet the request," she said. "Additionally, it would standardize the fee for all clerks throughout Oklahoma."
Bottom line: Kusler said, "I do not support the bill in its present form, but I hope that it can be revamped to standardize the cost per image for electronic data."
A 2005 attorney general opinion says county clerks may not charge a per-page fee for electronic copies of computer records. (2005 OK AG 21, ¶ 8)
"Because the fees authorized for photographic copies are applicable to a paper-page charge and because electronic copies do not have the tangible aspects of paper, it is the opinion of this office that the per-page fee may not be charged for electronic copies of records which are kept in a computer-readable format," the opinion said.
A per-image fee for digital records could quickly add up to big bucks for a single CD. Perhaps the clerks would settle for a $25 per CD fee.
Keep in mind, too, that since 2000, a $5 fee has been added to each land instrument recorded with each county clerk solely to "increase the net funding level available to the county clerk to maintain and preserve public records." (OKLA. STAT. tit. 28, § 32(D))
But Kusler is correct that legislators should be working out a copy fee for digital records, not giving county clerks the right to refuse to provide any public record in an electronic format.
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.
A House bill allowing county clerks to refuse to provide electronic records would formalize an unconstitutional monopoly that already exists in part because district attorneys won't enforce the state Open Records Act, says the president of a Texas company that sells online access to county records.
Jason B. Smith said county clerks in Oklahoma either won't respond to his firm's requests for land records or tell him to purchase the information from KellPro, a Duncan, Okla., company that contracts with counties to provide online access to the data.
Smith's company is entitled under the Open Records Act to obtain records directly from the county clerks, but he says he can't get district attorneys to tell clerks to comply with the law.
Smith said the Grady County clerk's office refused to provide the records and told him to complain to state Attorney General Scott Pruitt.
Smith did just that last week, asking Pruitt for help "encouraging" the clerks to abide by the statute.
"The systematic denial of Open Records Requests and a lack of State enforcement has, at best inadvertently, created a de facto monopoly," Smith said in the letter.
He said the arrangement conflicts not only with the Open Records Act but also "with the spirit of the Oklahoma Constitution which provides that the 'Legislature shall pass no law granting to any association, corporation, or individual any exclusive rights, privileges, or immunities within this State.'" (See OKLA. CONST. art. 5, § 51)
Smith said Monday that Pruitt's office confirmed receiving the letter and is scheduled to meet next week with county clerks.
But in the meantime, a House committee is considering a bill that would legalize what the county clerks are doing.
The House Government Modernization Committee will likely vote on HB 2605 in the next two weeks.
As this blog noted last month, the bill by Rep. Gus Blackwell would allow county clerks to refuse to "provide any record by electronic means."
That covers a lot of important public records. County clerks keep the records of proceedings of the county commissions, county excise boards, county boards of equalizations and county boards overseeing tax roll corrections. They also keep records of the receipts and expenditures by county governments, including the payroll for all county employees and all claims for payment for goods and services.
And they keep land records such as plats, deeds, oil and gas leases, real estate liens, and other liens against property in the county.
Smith said Blackwell, a Republican representing the Oklahoma Panhandle, hasn't responded to his email and telephone call asking about the bill.
That's the same response Smith's company, TexasFile.com, got from a number of county clerks after requesting electronic copies of their real property image and index data on Aug. 30.
Smith said none of the clerks has provided the information. Some haven't responded at all -- not even by quoting a price for the database, he said.
"There is either a fundamental misunderstanding by the majority of Oklahoma County Clerks of their obligations under the Oklahoma Open Records Act or a coordinated effort by the governmental bodies to deny access to electronic information," Smith told Pruitt. "The County Clerks have expressed little interest in complying with the Law and less concern with any enforceability or retribution for the violations they may be committing.
"The Oklahoma Open Records Act has a noble and essential purpose that far extends the governance of the type of request we presented," said Smith. "However, allowing such blatant and broad disregard for the law undermines every aspect of the Oklahoma Open Records Act."
It sure does. And HB 2605 creates a troubling precedent of allowing local government officials to pick and choose who gets records in which format.
Access to records in an electronic format increases significantly the public's ability to make sense of government information. The format is as critical as the disclosure itself because the format can render the data very useful or practically useless.
Without access to computerized government records from county clerks, Oklahomans will lose a meaningful way to oversee a great deal of government activity.
For those of you interested in telling state legislators what you think of HB 2605, the House Government Modernization Committee is chaired by Rep. Jason Murphey, R-Guthrie. Vice chairman is Wes Hilliard, D-Sulphur.
The other members are Reps.
David Brumbaugh, R-Tulsa;
Josh Cockroft, R-Tecumseh;
David Derby, R-Owasso;
Mark McCullough, R-Supulpa;
Lewis H. Moore, R-Arcadia;
Richard Morrissette, D-Oklahoma City;
Seneca Scott, D-Tulsa;
Aaron Stiles, R-Norman;
Randy Terrill, R-Moore;
John Trebilcock, R-Broken Arrow; and
Purcy D. Walker, D-Elk City.
Murphey and Scott have signed FOI Oklahoma's Open Government Pledge in which they promised "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 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.
A Stillwater parent says the school district sent a CD of requested committee emails without mentioning a $250 deposit or search fee.
An attorney for the district had told Mitsi Andrews she would have to pay the deposit before the district would begin compiling the emails for her inspection.
Andrews wanted to read the emails, text messages and other correspondence in which members of a school district committee discussed a controversial school calendar. She asked to inspect the emails after being told by Superintendent Ann Caine that no minutes existed for the committee's meetings.
Caine had also refused to identify all the members of the committee. (Read related posting.)
The attorney had told Andrews all the collected documents would have to be reviewed by district personnel or his Tulsa law firm for exempted material.
"The District believes your ORA request would clearly cause excessive disruption of the District's essential functions," said Kent B. Rainey of Rosenstein, Fist & Ringold.
Therefore, he said, Andrews would be charged a "fee to recover the direct cost of the document search." (The district charges a search fee of $25 per hour, according to its open records policy.)
But the Open Records Act prohibits a search fee in these circumstances, stating:
In no case, shall a search fee be charged when the release of records is in the public interest, including, but not limited to, release to the news media, scholars, authors and taxpayers seeking to determine whether those entrusted with the affairs of the government are honestly, faithfully, and competently performing their duties as public servants. (OKLA. STAT. tit. 51, § 24A.5(3))
The district's open records policy echoes that language, saying, "Search fees shall not be charged for records sought in the public interest, including, but not limited to releases to the news media, scholars, authors, and taxpayers seeking to determine whether officials of the district are honestly, faithfully, and competently performing their duties as public servants."
Andrews' request certainly fits within this provision. She had requested records that could reveal the pros and cons discussed by a committee that did not meet publicly and that was told to keep quiet about the proposal it was developing.
Andrews said one of the emails she received had told district representatives on the committee that Caine didn't want them discussing it with anyone else.
"Mums the word until the calendar is proposed," Andrews said the email instructed.
But a more transparent process could have addressed parental objections as the policy was developed, not after it was announced, and allayed parent and student anxiety about radically changing the school calendar.
As it was, the school board voted to keep the traditional school calendar for 2012-13 because of parents' concerns and to consider the continuous learning academic calendar for the following year.
Caine told the Stillwater Journal last month that she planned to reconvene the committee to make a fresh start designing a calendar that takes into account the concerns revealed in a parent survey.
Perhaps the process will be more open this time around.
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.
Stillwater Superintendent Ann Caine recently told a local newspaper she can understand that someone serving on a school district committee should expect to have their participation become public.
Caine had refused in December to identify the members of a committee that shaped a controversial school year calendar.
And an attorney for the district told a parent requesting the names that only one document with the names of the committee members existed and it was only "a partial list of members."
Caine told the Stillwater Journal last month that the district couldn’t locate a document listing all the names.
However, the parent had independently obtained emails sent from a Stillwater public school official to the committee that revealed the identities of members omitted from the district's response.
The Journal article didn't address the $250 deposit that the parent was told she would have to pay before the district would begin compiling the emails, text messages and other correspondence in which committee members discussed the controversial calendar proposal.
The article also didn't discuss the search fee that the attorney said the parent would be charged in an apparent violation of the Open Records Act and of the district's own policy.
But Caine did provide an explanation of the school district's policy for responding to records requests. An explanation at odds with the district's written policy and with a state attorney general's understanding of the state Open Records Act.
The district's policy notes that records requests "will be accommodated ... as soon as it is determined the requested records are not exempt from inspection and copying."
"Such determination may require the consideration of the superintendent or the district's attorney," the policy states.
In contrast, Caine told the newspaper, "Once you file a Freedom of Information request, it goes to our attorney."
But all records requests should not go to an attorney, said then-Attorney General Drew Edmondson in 2005 and 2006.
In a 2005 records training video for police, Edmondson acknowledged that a designated records person could encounter "an unusual request" requiring the advice of an attorney.
But he warned, "That should be a rare exception."
A year later, Edmondson said an Oklahoma State University policy requiring all public records requests to be cleared by school attorneys could violate the Open Records Act by not providing "prompt and reasonable" access.
"If that policy were challenged, then a judge would have to determine whether the circumstances within that particular agency are not only prudent but necessary," Edmondson told The Oklahoman.
"I would say that it is not typical and typically would not be found to be reasonable," Edmondson said.
He told the newspaper that requests should be filled in minutes, not days.
That's tough to do if the request goes not only to an attorney but to one about an hour away.
The attorney who responded to the parent's request for committee member names was Kent B. Rainey of the Tulsa law firm Rosenstein, Fist & Ringold.
The Open Records Act requires that public bodies "designate certain employees who are authorized to release records . . . for inspection, copying, or mechanical reproduction. At least one person shall be available at all times to release records during the regular business hours of the public body." (OKLA. STAT. tit. 51, § 24A.5(6))
The letter and spirit of the statute -- as well as common sense -- seem to require that the person be on-hand at the government office to release records. That certainly was Edmondson's understanding.
"By and large, the person at the desk who is supposed to respond to open records requests should be able to do so without consultation with anybody else," Edmondson said in the police training video.
Providing another reason why the Stillwater school district should not be sending all open records requests to an attorney in Tulsa.
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.
An Okemah councilman stepped down this week from the seat to which he had been appointed in an "emergency action" last month, the local newspaper reported.
Ken Lee had not taken the oath of office since his appointment by the City Council in late January, the Okemah News Leader said.
The newspaper and this blog criticized the appointment as a violation of the Open Meeting Act because such an action wasn't on the agenda.
City Attorney Bruce Coker had told the councilmen that they could declare an "emergency" based on the possibility of not having a quorum to conduct business at their next meeting if one was absent, the newspaper reported.
However, the Open Meeting Act requires that each agenda "identify all items of business to be transacted" by the public body at the meeting. (OKLA. STAT. tit. 25, § 311(B)(1))
The only exception is for "new business." The council agenda didn't have an item allowing for "new business" to be discussed. And even if it had, the appointment didn't meet the statutory definition of "new business." (OKLA. STAT. tit. 25, § 311(A)(9))
The council could have called an "emergency meeting" once it adjourned the regular meeting. But the appointment wasn't an emergency, which the Open Meeting Act defines as:
A situation involving injury to persons or injury and damage to public or personal property or immediate financial loss when the time requirements for public notice of a special meeting would make such procedure impractical and increase the likelihood of injury or damage or immediate financial loss. (OKLA. STAT. tit. 25, § 304(5))
The council should have called a special meeting for 48 hours later if it wanted to appoint Lee.
On Monday night, council members voted to accept Lee's resignation. An agenda item gave them the opportunity to simply reappoint him. Instead, they chose to declare a vacancy and call for applications.
The council will interview applicants during its regular meeting on Feb. 27.
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.
Kick off Sunshine Week with FOI Oklahoma’s 2012 Sunshine Conference. This year's theme is "Forging a Commitment to Open Government."
Program highlights include:
- House Speaker Kris Steele and fellow lawmakers explain bills requiring the state Legislature to comply with our open government laws.
- State Auditor Gary Jones discusses ways to improve enforcement of those laws.
- The Student Press Law Center’s attorney and a state expert on education law explain the application of FERPA, HIPAA and other federal statutes to the records of Oklahoma’s school districts, colleges and universities.
- State experts explain our Open Records and Open Meeting laws.
- Marian Opala First Amendment Award and FOI Award recipients recognized.
The conference is 9 a.m. – 3:30 p.m., March 10, at The Oklahoman Tower, 9000 N. Broadway, OKC. (Use the East Britton Road gate.)
Registration for walk-ins will begin at 8:30 a.m.
Early registration must be received by March 7. Additional $5 for registrations received after March 7.
Registration Form
Registration includes lunch.
- FOI Oklahoma Inc. Members: $15
- FOI Oklahoma Student Members: FREE (If registration is received by March 7. Otherwise, pay $10 at door.)
- Non-Members: $30
- Non-Member Students: $15 (Includes one-year membership in FOI Oklahoma Inc.)
Make check or money order payable to FOI Oklahoma.
Mail payment to:
Oklahoma Sunshine '12
Oklahoma Library Association
300 Hardy Drive, Edmond, OK 73013
405–525–5100 • Fax: 405–525–5103
Kay Boies: kboies@sbcglobal.net
Purchase Orders, and Visa and MasterCard payments can also be accepted. Please contact Kay Boies at the Oklahoma Library Association.
The Bartlesville Examiner-Enterprise today filed an Open Records Act lawsuit against the city and district attorney, seeking a copy of hospital surveillance video that reportedly led to the arrest of two police officers in December.
The two officers were charged with assault and battery on Dec. 1 and fired last month, the newspaper reported.
They are accused of striking and choking a handcuffed patient when they responded with other officers to the Jane Phillips Medical Center to help with a combative patient in September.
The video reportedly shows at least a portion of the incident, the newspaper said.
Bartlesville police officials obtained the video through a search warrant. The newspaper also said District Attorney Kevin Buchanan showed portions of the video to members of the Fraternal Order of Police Lodge 117, many of whom were not involved with either the incident or the investigation into the conduct of the officers.
City officials twice denied the newspaper's requests for the video, saying it would take a court order to get a copy.
Public access to police videos has become an issue in the state, most recently in December when Owasso officials provided the police officer lapel camera video and audio materials sought by the family of a Tulsa man who had died in the Tulsa County jail. But the family had to file an Open Records Act lawsuit before city officials would release the material.
It also took an Open Records Act lawsuit for Catoosa officials to agree in June that police audio and video recordings were public under the Open Records Act.
But in August, a Rogers County judge ruled that police dash-cam video was not a public record. Requesters could ask a court to find that the release of a particular recording would serve a public interest that outweighed the reason for denial, the judge said.
In the Bartlesville lawsuit, the newspaper argues the "public’s interest substantially outweighs any conceivable reason the defendants may have to deny access," explaining,
The public maintains a compelling interest in records of public bodies that disclose whether the public body and its employees are ‘honestly, faithfully and competently performing their duties’ and unless the records are confidential by law, the records must be made available to the citizens.
The newspaper also contends that "since the videotape contains facts concerning the arrest of public servants, the videotape must be produced."
That argument seems supported by a 2004 state Supreme Court ruling 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. [The plaintiff] 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."
In contrast, the Rogers County judge said the Supreme Court case dealt "with what amounts to a transcript of a public hearing" while the dash-cam recording was a "direct piece of evidence."
In other words, the Supreme Court had interpreted the Open Records Act as requiring certain information in the hands of law enforcement to be made public. The Rogers County judge, 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))
In Bartlesville, the newspaper also argues that city officials don't have a legitimate reason for withholding the video, in part because any claim of confidentiality was waived when the video was shown to third parties.
The newspaper is being represented by James Elias of Brewer, Worten, Robinett law firm.
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.
