Friday, February 3, 2012

Bartlesville newspaper sues city for videotape in which two police officers allegedly assaulted a handcuffed hospital patient

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.

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