Wednesday, May 23, 2012

Democratic candidate for House District 20 signs Open Government Pledge

Investment adviser Matt Branstetter has promised he would "support legislation to strengthen the letter and the spirit of Oklahoma’s Open Meeting and Open Records laws" if elected to the House District 20 seat.
By signing FOI Oklahoma's Open Government Pledge, Branstetter also 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."
Under redistricting lines approved by the Legislature last year, House District 20 was moved from Atoka, Coal and Johnston counties in south-central Oklahoma to Cleveland, Garvin and McClain counties just south of the Oklahoma City metro.
The current representative, Paul Roan, is term-limited.
The Democratic primary is June 26.
Freedom of Information Oklahoma Inc. invites all candidates for legislative seats as well as local and statewide offices to sign the pledge. Instructions and lists of signers can be found on FOI Oklahoma’s website.
In signing the pledge, candidates "endorse the purpose of Oklahoma’s Open Meeting and Open Records laws to ensure and facilitate the public's understanding of governmental processes and problems."
Candidates for local and statewide offices also pledge that they and the public bodies they are "elected to govern will comply with not only the letter but also the spirit of Oklahoma's Open Meeting and Open Records laws."
FOI Oklahoma began the Open Government Pledge in spring 2008 as part of a national effort to spur public commitments to government transparency from candidates for president down to city council contests.

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

Friday, May 18, 2012

District judge blocks public access to perjury charge against attorney

Why did District Judge Ray Dean Linder seal records of a felony perjury charge filed against an Enid attorney on Thursday?
"Because I am the district judge. And it will remain sealed until I say it shouldn’t be sealed,” Linder told the Enid News & Eagle.
Welcome to Oklahoma's 4th Judicial District, Division 1, where the public's right of access to court records doesn't exist if Linder says it doesn't.
This isn't the first time that Linder has arbitrarily closed off the judicial system to the public.
In July 2010, Linder refused to explain why a guilty plea in a first-degree murder case was accepted in his chambers instead of in the Woods County courtroom packed with family and friends of the victim.
"Wherever I am is open court,” Linder told the Enid News & Eagle at the time. "The attorneys for both sides and the defendant all agreed to do it in chambers. It became an auxiliary courtroom."
To say that his chambers had become an open court was an insult to the family and friends of the victim and to the general public. If his chambers had become an open court, why didn’t he conduct the proceeding in the Alva courtroom described as standing room only?
Now, Linder has sealed the perjury charge filed against Enid attorney Eric Edwards in Major County.
"Because in my professional opinion it deserved to be sealed," Linder told the newspaper. "Because I am the district judge, and I believe all persons are presumed innocent until their guilt is proved beyond a reasonable doubt by a qualified jury or judicial process."
The newspaper asked Linder what made him seal this particular case as opposed to all other felony cases. "My personal opinion, my professional opinion, my 50 years of experience as an attorney," Linder replied.
Linder wouldn't answer whether Edwards’ status as an attorney played into his decision to seal the case.
"The matter is sealed so we’re not going to talk about it — that's the reason you seal the record, is to prevent the information from being dispersed," he said.
But the U.S. Supreme Court has said judicial documents are presumptively open to the public and may be sealed only if that right of access is outweighed by a compelling need to protect higher interests. (See, e.g., Nixon v. Warner Communications. Inc., 435 U.S. 589, 597, 55 L. Ed. 2d 570, 98 S. Ct. 1306 (1978))
A number of U.S. Circuit Courts of Appeal, including the Tenth Circuit, have used a balancing test to determine if court documents should be sealed. Because the public is entitled to see these records, the judge may block access only if "closure is essential to preserve higher values and is necessary to serve that interest." (See, e.g., United States v. McVeigh, 119 F. 3d 806, 812-13 (10th Cir. 1997))
However, Linder didn't cite a compelling interest that outweighs the public's right of access to court records.
The flimsy reason he provided would be justification for closing all judicial records and trials.
Access to court records assures the public that everyone is treated equally in our judicial system and that decisions aren't "based on secret bias or partiality" – as the U.S. Supreme Court said in defense of open courts.
"Closed trials breed suspicion of prejudice and arbitrariness, which in turn spawns disrespect for law," the Court said. The same can be said for court records sealed from public view.
Our state Supreme Court had voiced a similar philosophy: "The doors of our courts must never be closed for Star Chamber sessions. They must be open to the press and its prying eyes and purifying pen to report courtroom abuses, evil and corrupt influences which despoil and stagnate the flow of equal and exact justice." (Lyles v. State, 1958 OK CR 79, ¶ 15)
Linder's outrageous, arrogant stance breeds suspicion that a secret court system exists in the 4th Judicial District for those with enough good-old-boy connections to keep their names out of the public record.
How many other criminal charges has he hidden from the public for no other reason than he is the judge and he says so? Why are those criminal defendants getting preferential treatment? What other considerations are they offered that aren't available to the majority of defendants?
The 4th Judicial District's Division 1 covers Alfalfa, Dewey, Major, Woods and Woodward counties.
Linder, who is in his late seventies, is one of the longest-sitting trial judges in the state, having served on the bench since 1967, according to the Oklahoma Bar Association.
Linder's undoubtably popular in the area, having served as the radio play-by-play man for Northwestern Oklahoma State University sports for 28 years, hosted a local TV sports program from NWOSU, and as a member of NWOSU’s Sports Hall of Fame, sought-after public speaker and an admired jewelry maker.
He's an award-winning judge described by the OBA as a leader in northwestern Oklahoma and the state's judiciary.
Linder's been co-chairman for the annual Oklahoma Legislative Quail Hunt in Woods County for more than 25 years and served on the statewide planning committee for the Oklahoma Lieutenant Governor's Invitational Turkey Hunt for the past 20 years, according to the OBA in 2007.
He undoubtedly has political power and not surprisingly ran unopposed in the 2010 election.
In 2000, Linder took a hard-line approach when he disqualified the Oklahoma County District Attorney's Office from prosecuting Oklahoma City bombing conspirator Terry Nichols. Linder said published comments that then-District Attorney Bob Macy had made were "blatant open violations of the rules of professional conduct."
"One hundred percent compliance with the rules is not only necessary, it's demanded," Linder said.
The same is true for the "rules" regarding the public's right of access to court records. One-hundred percent compliance is not only necessary to ensure that justice is afforded equitably, it's demanded.

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, May 10, 2012

Sperry school district won't release board's agenda packets until after meetings

Documents given to Sperry school board members for meetings won't be available to the public until the day after meetings, the superintendent told a former board member in a recent letter.
"As you know from being on the board, such packets sometimes have confidential information meant only for board members and they must be vetted before any release to the public," Superintendent Brian D. Beagles wrote to Cindy Wilson on April 26.
(Read the letter: pages 1 and 2.)
Beagles said he would remove any confidential documents by 1 p.m. the day after school board meetings and then make them available for Wilson to review and request copies.
In March, Bealges told Neighbor News he understood from consultations with Douglas Mann of Rosenstein, Fist & Ringold that the district was not required to release the agenda packets prior to meetings and that in some circumstances it might be better to do so afterward.
Once again, I disagree with this Tulsa law firm's advice to a school district because it seems contrary to both the spirit and the letter of our state's open government laws.
Information packets distributed along with agendas to members of public bodies are open to the public under the Open Records Act, a Delaware County judge held in 2004.
Under the Open Records Act, "A public body must provide prompt, reasonable access to its records...." (OKLA. STAT. tit. 51, § 24A.5(5))
A 1999 attorney general opinion defined "prompt, reasonable access" as "only the time required to locate and compile" the public records. (1999 OK AG 58, ¶ 15)
Oklahoma public agencies and officials also have a "duty" to provide public records to the public.
In 2005, then-Attorney General Drew Edmondson said:
The purpose of the 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.' To fulfill this purpose the Act imposes a duty on a public body to 'provide prompt, reasonable access to its records' and make a person available to release records during the public body's regular business hours. (2005 OK AG 3, ¶ 4)
The Open Meeting Act emphasizes that this state's public policy is "to encourage and facilitate an informed citizenry's understanding of the governmental processes and governmental problems." (OKLA. STAT. tit. 25, § 302)
"The Act serves to inform the citizenry of the governmental problems and processes by informing them of the business the government will be conducting,” said the Court of Civil Appeals in 2008. (Wilson v. City of Techumseh, 2008 OK CIV APP 84, ¶ 10)
Because the Open Meeting Act was "enacted for the public's benefit," the Oklahoma Supreme Court said in 1981, the statute "is to be construed liberally in favor of the public." (Int’l Ass’n of Firefighters v. Thorpe, 1981 OK 95, ¶ 7, 632 P.2d 408, 411)
But the purposes of the Open Meeting and Open Records laws are defeated if a public body won't provide agenda packets until after its meeting.
Without the information, how can the public be expected to provide input prior to decisions being made? The public won't fully understand government's problems or be able to efficiently and intelligently exercise their inherent political power prior to the meetings.
Wilson argues that access to the documents prior to meetings makes a difference in whether she requests permission to address the board on issues.
Beagles told a Neighbor News reporter that the district doesn't have the time or necessary staff to ensure that the packets can be reviewed and confidential material be redacted before meetings.
That's a specious argument. If Beagles is going to be the one reviewing the packet after the meeting, then he should do it when the packet is compiled for the board prior to the meeting.
His review of the packet should be fairly routine and not time consuming. The school board deals with the same kinds of issues -- contracts, expenditures, policies -- at each meeting. And few, if any, documents should be exempted under the Open Records Act.
For example, a number of policy revisions were on the April 9 agenda. Those proposals are not exempted. Teachers, staff, parents, the press and general public should be able to know the details prior to the board's discussion and decision. That's just good government.
It's also common practice in Oklahoma to make agenda packets available in one form or another prior to public meetings.
Monitor Oklahoma says the Sperry school district's 2010-2011 expenditures were just over $8.8 million. About 400 school districts spent less that year, according to Monitor Oklahoma, a nonpartisan, nonprofit news organization.
My guess is that some of those districts find the staff time to provide public access to agenda packets prior to school board meetings. So please review the list of districts and tell me if you have been able to obtain these records before that particular school board meets.
One last point: Beagles isn't the person ultimately responsible for the district administration's attitude toward open government. It's the Sperry school board: President Jeff Carter, Vice President Gary Juby, Clerk April Bowman, Derrell Morrow and Mechelle Beats.
The superintendent works for them. They work for the electorate. Why aren't they requiring that the packets be made available in advance?
Why don't they want the public to know the details of what they're considering?

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, May 4, 2012

OHP says Driver's Privacy Protection Act blocks release of blood-alcohol test results

The Oklahoma Highway Patrol recently told a newspaper that blood-alcohol test results can't be released because of a federal statute blocking access to personal information on driver's licenses.
But an attorney general opinion and court cases in other states indicate that the Driver's Privacy Protection Act does not prohibit the release of such information.
In refusing the request, the OHP cited two state statutes:
  • 51 O.S. §24A.5(1)(c), which exempts "personal information within driver records as defined by the Driver’s Privacy Protection Act, 18 United States Code, Sections 2721 through 2725."

  • 47 O.S. §6-117(C)(1)(b), which says, "The Department [of Public Safety] shall not be required to furnish personal information from the collision report which is contrary to the provisions of the Driver’s Privacy Protection Act, 18 United States Code, Sections 2721 through 2725."
The Driver’s Privacy Protection Act defines "personal information" as "information that identifies an individual, including an individual's photograph, social security number, driver identification number, name, address (but not the 5-digit zip code), telephone number, and medical or disability information, but does not include information on vehicular accidents, driving violations, and driver's status." (18 U.S.C. § 2725(3))
It defines "highly restricted personal information" as "an individual's photograph or image, social security number, medical or disability information." ((18 USC sec. 2725(4)) This information can be disclosed "without the express consent of the person" for some purposes. ((18 U.S.C. sec. 2721(a)(2))
Medical information collected for a driver’s license would seem to be whether eyeglasses are needed.
But even if the results of a blood-alcohol test were considered "highly personal information" somehow not included in the exemption for "vehicular accidents, driving violations, and driver's status," the DPPA still wouldn't block all public access.
Under the statute, "personal information" and "highly restricted personal information" may be used "by any government agency, including any court or law enforcement agency, in carrying out its functions." (18 U.S.C. § 2721(b)(1))
In 2008, Wisconsin's attorney general concluded, "Responding to public records requests is a required function of law enforcement agencies." (2008 Wisc. AG Lexis 8, at *35)
The DPPA's "permissible use by government agencies in carrying out their functions allows disclosure of personal information and highly personal information in law enforcement records in response to public records requests -- regardless of the nature of the matter in connection with which law enforcement requested the information from the DMV, so long as it was requested in pursuance of the law enforcement agency's official duties and functions," the opinion concluded. (Id. at **33-34)
Of course, blood-alcohol tests aren't conducted when a driver's license is issued in Oklahoma. The results aren't information that law enforcement officers request from the state Department of Public Safety when making a traffic stop or investigating an accident.
Instead, breath tests can be conducted on the scene by the law enforcement agency, such as during a sobriety checkpoint. For example, the Oklahoma County Sheriff's Office, Oklahoma City police and Oklahoma Highway Patrol reported making 28 DUI arrests during a metro sobriety checkpoint and "saturation patrol" this past Saturday night.
To be covered by the DPPA, personal and highly personal information must have been collected by the state agency "in connection with a motor vehicle record," which the statute defines as "any record that pertains to a motor vehicle's operator's permit, motor vehicle title, motor vehicle registration, or identification card issued by a department of motor vehicles." (18 USC sec. 2725(1))
In 2002, a federal judge in Colorado ruled that an accident report obtained from the Colorado State Patrol was not a "motor vehicle record" within the meaning of the DPPA. (Mattivi v. Russell, 2002 U.S. Dist. LEXIS 24409 (D. Colo. Aug. 2, 2002))
The judge rejected the plaintiff's claim that "an accident report is a motor vehicle record because it pertains to a person's ability to drive and own a car and because it could affect a driver's license or title to a vehicle." (Id. at *9)
He also concluded that "the plain language of exception in section 2725(e) makes clear that Congress did not intend 'information on vehicular accidents' to be included within the Act's prohibition of disclosure of "personal information." (Id. at *14)
Relying in part on that ruling, a federal judge in Illinois in 2008 said, "Quite simply, Congress chose to specifically make the DPPA apply to records coming from the DMV and pertaining to a motor vehicle license or permit." (Lake v. Neal, 2008 U.S. Dist. LEXIS 75090, at *8 (N.D. Ill. Sept. 29, 2008))
Likewise, the Wisconsin attorney general emphasized that the DPPA pertains to information sought from a motor vehicle department by law enforcement officers as they do their jobs.
For example, the opinion said reading the DPPA "so restrictively that law enforcement agencies would be precluded from carrying out public records functions, including redisclosing personal information obtained from the state DMV and used in law enforcement reports, would serve neither of the specific purposes identified by Congress for enacting the DPPA: crime-fighting, and controlling commercial use of driver information in driver records held by DMVs." (2008 Wisc. AG Lexis 8, at *20)
"Instead, it would subvert the important governmental objective of facilitating public oversight of police investigations, impair public confidence in law enforcement activities, and do exactly what Congress intended to avoid -- impede execution by law enforcement officers of their legitimate public duties and responsibilities," the opinion said.
In other words, the statute does not block public access to information created by the law enforcement agencies in the performance of their duties and in reports related to vehicular accidents and driving violations.
The results of blood-alcohol tests would seem to fall into this category of information.

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.

State Supreme Court denies district attorney's petition for standing but appeal still pending

The state Supreme Court last week denied a district attorney's petition declaring he has the right to appeal a district judge's order that Bartlesville police provide the local newspaper with a copy of hospital surveillance video that led to the arrest of two officers in December.
But the one-line order agreed to by all the justices didn't offer an explanation.
And Washington County District Attorney Kevin Buchanan already has appealed District Judge Curtis L. DeLapp's decision.
The Bartlesville Examiner-Enterprise this week filed a motion asking the court to dismiss Buchanan's appeal.
The newspaper had filed an 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 of the video that led to two police officers being charged with assaulting a handcuffed patient.
DeLapp ruled March 12 that Bartlesville police had to provide the video, but he did not decide whether Buchanan had to as well.
On March 16, Buchanan asked DeLapp to suspend his order against the police so Buchanan could appeal it. DeLapp refused, saying that Buchanan had no standing because the order didn't apply to him.
The Bartlesville Examiner-Enterprise received a copy of the hospital surveillance video on March 16 after the newspaper agreed not to seek attorney's fees from the city, which in turn agreed not to appeal a judge's order to release the video.
On March 18, the newspaper posted the 44-minute video, which shows a confrontation in a local hospital emergency room between four Bartlesville police officers and a young man who had been brought to the hospital after expressing "suicidal thoughts."
On March 23, Buchanan filed a petition for a writ of mandamus with the appellate court. He wanted the state Supreme Court to suspend DeLapp's order and grant him standing to appeal it.
Before getting an answer from the court, Buchanan filed the appeal on April 4.
The court's denial of Buchanan's petition for standing "could mean either that the court doesn't believe the DA has standing or it could mean that the court just doesn't see the writ as being the proper procedure to raise the issue and it expects to deal with standing/mootness in the appeal itself," said media attorney Robert Nelon of Hall Estill.
Nelon is representing FOI Oklahoma, the Reporters Committee for Freedom of the Press and the Oklahoma Society for Professional Journalists Pro Chapter, which are asking permission to file as amici curiae in the case.

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.