Wednesday, March 14, 2012

Bartlesville newspaper wins access to videotape in which two police officers allegedly assaulted a handcuffed hospital patient

A Washington County judge has ordered Bartlesville police to provide the local newspaper with a copy of hospital surveillance video that led to the arrest of two officers in December.

But the Bartlesville Examiner-Enterprise has not received the copy since the judge's ruling Monday afternoon.

Police Chief Tom Holland apparently is delaying release of the video so District Attorney Kevin D. Buchanan can seek an order from another judge to keep it confidential as part of his criminal investigation against the two officers.

When District Judge Curtis L. DeLapp ruled against the Bartlesville police on Monday, he did not decide whether Buchanan had to release the video.

The newspaper filed the Open Records Act lawsuit against Buchanan, the city and police department on Feb. 3 after city officials said it would take a court order to get a copy.

The video reportedly shows at least a portion of the incident in which two police officers 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. Bartlesville police officials obtained the video through a search warrant.

The two officers were charged with assault and battery on Dec. 1 and fired in January.

The city attorney and Buchanan argued that the video was not public because mental health proceedings are confidential. The patient was the subject of an emergency detention order under mental health proceedings.

But DeLapp said the video apparently "does not depict the administration of mental health treatment, mental health treatment information or the receiving of mental health treatment."

DeLapp noted that even if the video does contain such information, the patient has provided the newspaper with a waiver of his rights to confidentiality.

The city and Buchanan also contended that the video was not public under the state Open Records Act because it is not listed among the law enforcement information that must be released.

DeLapp rejected that argument, holding that the video contains "facts concerning the arrest and cause for the arrest" of the two police officers.

In DeLapp's ruling, he relied upon a 2004 state Supreme Court decision 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. [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."

DeLapp ruled that the hospital surveillance video was a record that came into the custody of Bartlesville police "in connection with the transaction of public business, i.e. the investigation of crimes committed within its jurisdiction."

"In particular, the Court finds that the videotape(s) would include the cause of the arrest," he ruled.

In contrast to DeLapp, a Rogers County judge in August ruled that Claremore police dash-cam video was not a public record. She said Fabian dealt "with what amounts to a transcript of a public hearing" while the dash-cam recording was a "direct piece of evidence."

DeLapp's interpretation seems the more plausible of the two.

And provides a much-needed victory for the public's right to know during Sunshine Week.

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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