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The Oklahoma Supreme Court will decide whether a state contractor's practice of allowing only Oklahoma Bar Association members to download court documents in 64 counties violates the Open Records Act, the Tulsa World reported today.
Everyone can access those cases for free through KellPro's On Demand Court Records system, but only bar association members can download the accompanying documents. KellPro charges them a subscription of $50 per month or $600 per year.
Everyone not a member of the bar association has to drive to those county courthouses during business hours Monday through Friday (except government holidays) to get copies.
KellPro and Mike Evans, administrative director of the courts, disagreed on why KellPro restricts access to documents to bar association members.
KellPro's ODCR website tells non-OBA members trying to download records:
While we would prefer to provide the same great access to everyone, we are not permitted to do so at this time. ... We are currently governed by contract with the Administrative Offices of the Courts and the Oklahoma Supreme Court to limit access to active members of the Oklahoma Bar Association.
So far, all requests that have been made to the AOC regarding access to the scanned court documents have been denied. Any questions or concerns regarding this limitation should be directed to the Administrative Offices of the Courts.
We are not allowed to authorize exceptions, and we cannot grant access to an individual Oklahoma District Court.
The Supreme Court signed a $1 million contract in August 2009 with KellPro Inc. to get data from the courts it serves ready for conversion to a new system in which records from all 77 counties will be available online to everyone for free.
The Tulsa World noted that KellPro's state contract specifies "any efforts by KellPro to market, sell, publish, or disseminate court information, including but not limited to providing paid access to case dockets or imaged court documents, through a commercial subscription ... must be authorized, in advance, by the Supreme Court of Oklahoma."
Evans told the newspaper that the clause was added before the contract was signed because KellPro had already begun to sell subscriptions to bar members and bulk data to several entities without the Supreme Court's permission.
The Supreme Court unanimously issued an administrative directive in October 2009 barring bulk distribution of electronic case information. That decision seemed to violate the Open Records Act by limiting access to electronic records.
The court did not tell KellPro to stop selling the online access subscription to bar association members.
The Tulsa World asked Evans why the court didn't use its contractual authority to order KellPro to stop selling subscriptions only to OBA members. "I can't answer that because I wasn't in the room," he said.
One thing is clear: Court case records are subject to the Open Records Act.
"Although the definition of 'public body' contained within the Open Records Act does not encompass judges or Justices generally, the Act's definition of 'records' does include documents filed of record in court proceedings," the Oklahoma Supreme Court said in 2002. (Nichols v. Jackson, 2002 OK 65, ¶ 1)
The Court of Criminal Appeals had come to a similar conclusion a year earlier. The majority had noted the purpose of the Open Records Act, its definition of public body and that the statute provides that "[a]ll records of public bodies and public officials shall be open to any person for inspection, copying, or mechanical reproduction during regular business hours." (Nichols v. Jackson, 2001 OK CR 35, ¶ 8)
"The Act also states that boards and courts fall under its definition of 'public body', and therefore are subject to its provisions," the majority explained. (Id. ¶ 9)
The records at issue, "being documents and papers coming into the custody and control of the Supreme Court in connection with the transaction of the public business of the criminal prosecution …, fall within the purview of the Act," the majority said. (Id. ¶ 10)
"Unless the records fall within a statutorily prescribed exception in the Act, the Act requires the records be made available for public inspection and copying," the majority concluded. (Id.)
The dissenting judge agreed, saying, "Oklahoma's Open Records Act clearly applies on its face to the courts." (Id. ¶ 4 (Chapel, J., dissenting))
So why should only members of the Oklahoma Bar Association be granted online access to court records?
Meanwhile, the public continues to pay for the creation of the new system, which is at least six months to one year behind schedule, the Tulsa World noted.
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.
District attorneys don’t seem especially interested in prosecuting violations of our open government laws. And the expense of suing public agencies over meeting and records violations is prohibitive for most folks.
But another option exists for persuading at least some of those public officials to respect Oklahomans’ right to know what their government is doing.
File a complaint with the Oklahoma Bar Association against lawyers serving on public bodies that violate the Open Meeting Act and against those government attorneys providing advice that clearly contradicts the Open Meeting and Open Records laws.
“Lawyers holding public office assume legal responsibilities going beyond those of other citizens. A lawyer's abuse of public office can suggest an inability to fulfill the professional role of lawyers,” according to the Oklahoma Rules of Professional Conduct for lawyers. (OKLA. STAT. tit. 5 app. 3-A, § 8.4 cmt. 5)
Protecting the public is the primary purpose of the lawyer discipline system, the Oklahoma Bar Association notes.
The OBA investigates complaints of unethical conduct by lawyers practicing in the state. Lawyers found guilty of serious misconduct may be suspended or disbarred.
The rules "apply to lawyers who are not active in the practice of law" and to "practicing lawyers even when they are acting in a nonprofessional capacity. For example, a lawyer who commits fraud in the conduct of a business is subject to discipline for engaging in conduct involving dishonesty, fraud, deceit or misrepresentation." (OKLA. STAT. tit. 5 app. 3-A, § Preamble(3))
"A lawyer's conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer's business and personal affairs." (Id. 5)
The OBA's examples of unethical conduct include when "a lawyer doesn’t tell the truth."
Lawyers may serve on public bodies as either elected or appointed members.
A complaint against a lawyer serving on a public body that clearly violates the Open Meeting Act would seem justified under the following Rules of Professional Conduct:
It is professional misconduct for a lawyer to:
(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;
(d) engage in conduct that is prejudicial to the administration of justice; (OKLA. STAT. tit. 5 app. 3-A, § 8.4)
Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice are in that category. A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation. (OKLA. STAT. tit. 5 app. 3-A, § 8.4 cmt. 2)
Those rules also would seem to justify a complaint against attorneys whose advice to public bodies and agencies clearly contradicts our state's Open Records and Open Meeting laws.
Such advice by these attorneys -- whether employed directly by a government body to render it legal advice or a private attorney hired as an independent contractor to render legal advice to a government body or agency -- would also seem to violate another Rule of Professional Conduct:
A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent....(Rule 1.2. (d))
(["A] lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law." Id.)
When any of these lawyers -- whether as members of public bodies or as government attorneys -- try to cover up their wrongdoing, they would likely violate the rules by:
- Engaging in "conduct involving dishonesty, fraud, deceit or misrepresentation; (OKLA. STAT. tit. 5 app. 3-A, § 8.4(c))
- Knowingly making "a false statement of material fact or law to a third person"; or
- Knowlingly failing to "disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6." (OKLA. STAT. tit. 5 app. 3-A, § 4.1(a-b))
A complaint filed against lawyers serving on public bodies or those hired to provide legal advice should note which of the specific Rules of Professional Conduct that the attorney has violated.
The complaint must be in writing and signed. A form is not required, but an OBA complaint form is available.
The complaint must be an original document mailed or delivered to the Oklahoma Bar Association:
ATTN: General Counsel P.O. Box 53036 Oklahoma City, OK 73152
Faxed or e-mailed complaints will not be accepted.
The nature of the complaint should be described in full detail, including dates. Include copies, not originals, of any documents that could help the Office of the General Counsel understand the complaint.
The Office of the General Counsel will review the information and may decide to:
- Open an investigation
- Ask you to provide more information
- Notify you that the office can take no action
The OBA cautions that "because of the large number of complaints received," several weeks might pass from the time your complaint is received to the time you are contacted.
According to the OBA: If an investigation is opened, you will be notified in writing and when necessary will be contacted by an investigator or attorney.
A copy of your complaint will be sent to the attorney, who will be asked to respond in writing.
Even if an investigation is not opened, you will still be notified. A copy of your complaint will be forwarded to the attorney for his or her information.
If an investigation is conducted and the state bar decides there is probable cause to think the attorney violated ethics rules and there is clear and convincing evidence to show the violation, formal disciplinary action may be initiated. All state bar investigations are confidential. A hearing may be held, and you may be required to appear as a witness.
If you file such a complaint, please let me know.
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications
