Police dash cam video, audio recordings of arrests are public record, Okla. Court of Civil Appeals rules

A police dash cam video of a DUI arrest contains facts concerning the arrest and therefore is public under the state Open Records Act, a three-judge panel of the Oklahoma Court of Civil Appeals ruled 2-1 Friday.
 
In overturning a Rogers County trial judge, the majority relied upon a 2004 state Supreme Court ruling that Department of Public Safety recordings of administrative hearings concerning revocation of drivers' licenses are public.
 
"If an Implied Consent hearing is considered 'facts concerning the arrest,' then surely the video and/or audio recording of the actual arrest must also constitute 'facts concerning the arrest,'" said Judges Robert Bell and Kenneth Buettner on Friday.
 
Chief Judge Larry Joplin cast the dissenting vote but with no written opinion.
 
The Oklahoma Open Records Act 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(A)(2))
 
The Oklahoma Supreme Court in 2004 said the DPS recording of administrative hearings contained facts concerning arrests and therefore are open under the Open Records Act. (Fabian & Assoc., P.C., v. State ex. rel. Dept. of Public Safety, 2004 OK 67)
 
But in 2011, a Rogers County trial judge ruled that Claremore Police Department dash cam recordings were not public records.
 
Associate District Judge Sheila A. Condren said the state Supreme Court case dealt "with what amounts to a transcript of a public hearing."
 
"In contrast, the 'dash cam' recording is a direct piece of evidence," she said.
 
Bell and Buettner said her "holding that the video is exempt because it could be used as evidence in a subsequent criminal prosecution is without legal support."
 
"There is no such exemption enumerated in the Act," they noted.
 
They also noted that although state legislators had exempted Oklahoma Highway Patrol video and audio recordings in 2005 following an Oklahoma County district judge's ruling barring the OHP from keeping videotapes of traffic arrests secret, no such exemption existed for local law enforcement.
 
Condren also had ruled that Claremore did not violate the Open Records Act because the requesters had listed the wrong date -- April 4, not March 4 -- for the arrest and therefore no such video existed for that date.
 
"It is not reasonable to expect a public agency to anticipate what records are being requested," she reasoned. "It is the responsibility of the requesting party to provide accurate information regarding the records they seek."
 
But Bell and Buettner emphatically overturned Condren on that point as well.
 
Police officials might have been initially confused by the wrong date but had subsequently provided many documents concerning the arrest, Bell and Buettner said.
 
They noted that Claremore Police Chief Stan Brown testified that he understood the request was for records of a March 4 arrest and that he refused to provide the video because of his departmental policy requiring such video be requested from the district attorney's office.
 
Brown "knew exactly what" records were being requested, concluded Bell and Buettner.
 
Condren's conclusion that the city had "technically complied" with the request "because of the erroneous date is clearly contrary to the weight of the evidence," the two appellate judges ruled.
 
Bell and Buettner's ruling is a victory for common sense and the public's need to know. Public access to dash cam recordings of arrests protects police officers from false allegations of misconduct and provides those arrested with evidence of actual abuse.
 
Local law enforcement officials typically release dash cam videos. But I won't be surprised if cities and sheriffs ask legislators next year for the same exemption granted to the Oklahoma Highway Patrol.
 
I hope that enough legislators will recognize the value of public access to such recordings and will not only reject such a request but also remove the exemption for OHP video and audio.
 

 
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.

OCU fails to comply with Clery Act requirements

Oklahoma City University failed to make its updated crime log publicly available in recent months despite being required by federal law to do so, campus journalists reported recently.
 
OCU officials also refused to provide archived crime logs promptly and failed to publish up-to-date annual crime statistics by the required deadline, reported MediaOCU.com.
 
The U.S. Department of Education office that investigates Clery Act violations has been sent the students' articles. Schools can be fined up to $35,000 for each infraction of the Clery Act.
 
The Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act explicitly requires private universities that receive federal funding and maintain a police department to make a daily crime log available for public inspection during normal business hours. (20 USC §1092(f)(4)(A)(B)))
 
All crimes must be added to the log within two business days (Monday through Friday, except for school holidays) of their initial report to campus police.
 
But OCU officials were unable to provide current crime logs on April 2 and April 11 when requested by student reporters. OCU officials said the crime logs were available on the police department's website.
 
But the students discovered that the most-recent crime log entry was Jan. 31. Madi Alexander's story included a screen shot of the online crime log from April 11.
 
Not until April 16 did OCU officials correct the online crime log, Alexander reported.
 
OCU spokeswoman Sandy Pantlik blamed the 10 weeks of missing crime logs on a technical glitch.
 
In a written statement, Pantlik implied that OCU hadn't violated the Clery Act because the school had sent "crime stats via email on a regular basis to a broad list of campus recipients, including MediaOCU."
 
"MediaOCU did post OCU crime logs and police reports to the university website throughout February, March and the first of April, making the statistics available through an online source associated with the university," Pantlik wrote.
 
However, OCU did not send all crime log entries to the student media. Moreover, I'm sure that student media's posting of some crime reports didn't absolve OCU of its statutory obligation to have all crime logs publicly available.
 
The U.S. Department of Education seems to agree.
 
"Your log may be either hard copy or electronic," says the department's handbook on complying with the Clery Act. "If your institution has an electronic log and there are technical problems that make it unusable, use a hard copy log as a temporary replacement until the problems are resolved." (p. 95)
 
OCU officials also refused to provide archived crime logs to Alexander within two business days of her request.
 
Pantlik said OCU is "not required the Clery Act, by the Clery Act regulations, or by the Handbook to make these archived logs available upon request." Instead, she said on April 19, the records would be provided within 30 days.
 
But the federal regulations for complying with the Clery Act say portions of crime logs older than 60 days must be made "available with two business days of a request for public inspection." (34 CFR 668.46(f)(5))
 
Alexander said Wednesday (May 22) that she hasn't received the archived logs.
 
Alexander also reported that OCU had failed to include its 2011 crime statistics in its 2012 report. The university had included only 2008-2010.
 
The Clery Act requires schools to publish annual security reports that include crime statistics for the most recent calendar year and two preceding calendar years. (20 USC §1092(f)(1)(F)))
 
The report must be published and distributed by Oct. 1.
 
"This is a firm deadline. There is no grace period and there are no exemptions," the handbook emphasizes.
 
Alexander noted that OCU's security report wasn't corrected until April 21 and only after she and another reporter brought other apparent Clery Act violations to the attention of school officials.
 
The students had also pointed out that victim addresses were included in 10 crime log reports.
 
Pantlik said OCU "is not required by the Clery Act or by federal regulations adopted with respect to the Clery Act to remove room numbers from university crime logs."
 
But the statute says, "All entries that are required pursuant to this paragraph shall, except where disclosure of such information is prohibited by law or such disclosure would jeopardize the confidentiality of the victim, be open to public inspection within two business days of the initial report being made to the department or a campus security authority." (20 USC §1092(f)(4)(B)(i)))
 
The handbook explains:

[I]f the state crime log requires the victims’ names to be listed, for Clery purposes those names must be redacted for public inspection. The federal Clery Act regulations state that a disclosure may not jeopardize the confidentiality of the victim. This takes precedence over state crime log laws. (p. 90)

Pantlik said OCU "does attempt to follow the guidelines set forth in the Handbook." The addresses were later redacted.
 
OCU officials remain adamant that they have not violated the Clery Act.
 

 
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.

Tulsa mayoral candidate won't sign FOI Oklahoma's Open Government Pledge

Kathy Taylor won't sign a pledge promising voters that she will comply with the state's open government laws if elected to her old job as Tulsa mayor.
 
Taylor and her two opponents, Mayor Dewey Bartlett Jr. and former City Councilman Bill Christiansen, were sent letters Monday asking them to sign FOI Oklahoma's Open Government Pledge as they campaign for Tulsa's first non-partisan mayoral primary on June 11.
 
Bartlett and Christiansen haven't responded to the request. Both men signed the pledge when they ran for offices in 2009: Bartlett for mayor, and Christiansen for re-election to the City Council.
 
Taylor's political director, Monroe Nichols, responded on her behalf in an email Tuesday.
 
"While Kathy is a supporter of your message and mission, she's not signing issue pledges during the campaign," Nichols wrote.
 
Some 140 candidates have signed the pledge since FOI Oklahoma began it in spring 2008. Just over half -- 73 -- have been elected.
 
The pledge was begun as part of a national effort to spur public commitments to government transparency from candidates for president down to city council contests.
 
By signing the pledge, candidates for state and local offices promise that their respective governments will "comply with not only the letter but also the spirit of Oklahoma's Open Meeting and Open Records laws."
 
They also promise "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."
 
Taylor, Bartlett and Christiansen recently responded to a Tulsa World survey asking how they "would improve the openness of city government, including communications and open records policies."
 
Taylor said Tulsa "should have an open-platform data portal that allows fast responses to Open Records requests, instant access to city information and encourages the development of new and innovative applications for that data that improve the way the city runs."
 
Nichols described Taylor as "a strong supporter of transparency and open government."
 
Taylor's campaign website says that if elected, she will:

• Improve city government transparency and responsiveness by working to speed up responses to public requests for information, and increasing accountability to the public for timely service.
• Bring Tulsa government into the 21st Century by making more public records, forms, and services accessible to all citizens online.

However, it doesn't mention ensuring Tulsa's compliance with the state's open government laws.
 

 
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.

Student journalist sues OU for access to parking ticket information

The University of Oklahoma's claim that parking tickets issued to students are private educational records is being challenged in court by a former online editor for The Oklahoma Daily.
 
Joey Stipek is asking a Cleveland County judge to order OU officials to release all parking citations issued by the university.
 
Stipek's lawsuit, filed Friday, stems from OU's refusal to release electronic copies of parking citations issued to students in the spring 2012 semester. OU's open records officer, Rachel McCombs, claimed the information is confidential under the federal Family Educational Rights and Privacy Act, or FERPA, according to Stipek's lawsuit.
 
OU and Oklahoma State University officials have made that claim for years even though courts in other states have ruled otherwise.
 
In 1998, for example, the Maryland Court of Appeals unanimously ruled that FERPA "was not intended to preclude the release of any record simply because the record contained the name of a student." (Kirwan v. The Diamondback, 721 A.2d 196, 27 Media L. Rep. 1399 (Md. Ct. App. 1998))
 
The court reasoned:

The federal statute was obviously intended to keep private those aspects of a student's educational life that relate to academic matters or status as a student.
 
Nevertheless, in addition to protecting the privacy of students, Congress intended to prevent educational institutions from operating in secrecy.
 
Prohibiting disclosure of any document containing a student's name would allow universities to operate in secret, which would be contrary to one of the policies behind the Family Educational Rights and Privacy Act.
 
Universities could refuse to release information about criminal activity on campus if students were involved, claiming that this information constituted education records, thus keeping very important information from other students, their parents, public officials, and the public.
 
We hold that "education records" within the meaning of the Family Educational Rights and Privacy Act do not include records of parking tickets or correspondence between the NCAA and the University regarding a student-athlete accepting a loan to pay parking tickets.

The university's student newspaper had sought the records after learning that a basketball player had nearly 300 parking violations, many for parking in handicapped spaces, and more than $8,000 in unpaid parking fines.
 
In 2011, a North Carolina judge ruled that parking tickets issued to UNC athletes "are not education records protected by FERPA."
 
The "remote possibility" that repeated parking violations would result in disciplinary action "does not constitute a sufficient 'threat' to cloak every student with invisibility about the number of parking tickets he or she receives," the judge said.
 
(Similarly, the judge ruled that student phone numbers on UNC coaches' cell phone bills were public records, saying: "FERPA does not provide a student with an invisible cloak so that the student can remain hidden from public view while enrolled at UNC. The telephone number is not part of the education record protected by FERPA.")
 
The N.C. judge's ruling was another example of courts telling universities that "FERPA is not to be applied in an absurd way to conceal information that is not educational," said Frank LoMonte, executive director of the Student Press Law Center.
 
LoMonte recently said OSU officials shouldn't just ignore those court rulings and should stop "relying on this unsustainable interpretation of FERPA that is inconsistent with the way other people read it and undermines the public interest."
 
If parking tickets are indeed educational records, LoMonte told The Daily O'Collegian, then the university is violating FERPA by placing them on windshields in public view.
 
"They certainly wouldn't take your report card and stick it under your windshield wiper and leave it on public display for anyone to see," LoMonte said.
 
Stipek had sought OU's parking tickets to determine if preferential treatment had been given to anyone, especially athletes.
 
After being denied access, Stipek asked for all non-student parking citations. But the university replied that it didn't have the technological capability to redact student information from the database, according to his petition.
 
Stipek's lawsuit was filed against McCombs and OU President David Boren. Stipek's attorney is Nicholas Harrison, who received FOI Oklahoma's 2012 Ben Blackstock Award because of his reporting for The Oklahoma Daily as a University of Oklahoma law school student.
 

 
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.

Re-elected incumbent, two other Stillwater candidates pledged to comply with open government laws

Stillwater City Council incumbent Joe Weaver had signed FOI Oklahoma's Open Government Pledge before his re-election in early April.
 
Nine pledge-signers, including Weaver, were elected in municipal elections on April 2.
 
Weaver, OSU's administration & finance vice president, promised that he and the Stillwater city government "will comply with not only the letter but also the spirit of Oklahoma's Open Meeting and Open Records laws."
 
Weaver also pledged "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."
 
Also signing the pledge prior to the election were Weaver's opponent OSU employee Micah LeFebvre and incumbent Philip Pina, who lost to Gina Noble, an OSU faculty member who also had signed the pledge.
 
The Stillwater League of Women Voters collected the signed pledges from Weaver, LeFebvre and Pina in late March but didn't mail them to FOI Oklahoma until after the election.
 
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.
 
Signers are listed on the FOI Oklahoma website.
 

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

State officials refuse to release health care report from consultant

State officials are refusing to release a consultant's findings for a plan to cover people without health insurance, Oklahoma Watch reports.
 
The Oklahoma Health Care Authority is claiming the findings, though delivered to the state agency, are covered by an exemption in the state Open Records Act for "personal notes and personally created materials."
 
Oklahoma Watch noted that the state hired the consultant, Leavitt Partners, for $500,000 in January to review operations of the state’s Medicaid program, SoonerCare, as well as other states' health programs that would expand health coverage and improve health outcomes.
 
Oklahoma Watch said the final report would be released June 30 and incorporate feedback from state officials.
 
In the meantime, the Oklahoma Open Records Act contains no provision allowing governments to keep "drafts" secret from the public.
 
The statute permits governments to keep confidential "personal notes and personally created materials . . . prepared as an aid to memory or research leading to the adoption of a public policy or the implementation of a public project."
 
The exemption applies only prior to the official "taking action, including making a recommendation or issuing a report." (OKLA. STAT. tit. 51, § 24A.9)
 
An agency spokeswoman told Oklahoma Watch that the consultant’s draft report contains the findings of its months-long study.
 
Some of the findings and recommendations from the plan will be presented in a PowerPower slide-show presentation at the Oklahoma Health Care Authority's board meeting Thursday, Oklahoma Watch reports.
 
An Oklahoma Health Care Authority spokeswoman said the slide show will be released after the meeting.
 
But Howard Pallotta, general counsel for the Health Care Authority, told Oklahoma Watch that the agency does not have to immediately release the draft report or PowerPoint images in response to Oklahoma Watch's records request.
 
Pallotta's statement seems contrary to the Open Records Act and to a 2009 state Court of Civil Appeals decision ordering Lawton officials to release a "draft" audit conducted by an independent auditor. (Int'l Union of Police Assoc. v. City of Lawton, 2009 OK CIV APP 85)
 
"In determining whether material is a 'record' subject to inspection under the ORA, or exempted 'personally created materials,' we 'focus on the totality of the circumstances surrounding the creation, maintenance, and use of the document,' regardless of the 'status' of a document as 'preliminary' or 'final,'" the court said. (Id. ¶ 18)
 
At the time the police union had requested the audit, the court noted, "City clearly possessed and controlled a preliminary draft of the requested Audit Report." (Id. ¶ 19)
 
"And most importantly," the court said, "it is also undisputed that City used the draft Audit Report as the basis for testimony and evidence offered at the arbitration hearing, and the fact that City withdrew its exhibits based on the draft Audit Report does not alter the fact that City used the draft Audit Report to prepare for and oppose Union's requested arbitration. (Id.)
 
"Given ... City's use of the draft Audit Report to prepare for and oppose Union's demanded arbitration, we hold Union was entitled to inspect and copy the draft Audit Report under the ORA," the court concluded. (Id. ¶ 20)
 
Oklahoma Health Care Authority officials concede that the state agency has received the report and is making use of it. In other words, state officials clearly possess and control the report.
 
The court in 2009 had also taken into account the purpose of the Open Records Act "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." (Id. ¶ 13, quoting OKLA. STAT. tit 51, § 24A.2)
 
Given that purpose, the Oklahoma Supreme Court said in 1986, "Disclosure is to be favored over a finding of exemption" when public bodies and courts rule on records requests. (Tulsa Tribune Co. v. Okla. Horse Racing Comm’n, 1986 OK 24, ¶ 22)
 
The Oklahoma Health Care Authority is "the primary entity in the state of Oklahoma charged with controlling costs of state-purchased health care." The seven members of the OHCA Board are appointed by the governor, Senate president pro-tempore and House speaker.
 
Time for these elected officials to tell their political appointees to cough up now the report already in the hands of OHCA.
 

 
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.