State Senate approves bill limiting authority of judges to seal court records

The state Senate approved a bill Tuesday that bans Oklahoma judges from sealing court records simply because both parties agreed to the closure.
 
"The mere fact that the parties agree shall not be grounds to seal any records or files," states Senate Bill 1041.
 
The bill by Sen. Anthony Sykes, R-Moore, and Rep. Mark McCullough, R-Sapulpa, passed the Senate 43-0. Its first reading in the House was today.
 
Under their bill:

A court shall not seal any records or files unless specifically authorized by the Oklahoma Constitution or by statute. Prior to issuing an order sealing any records or files, the court shall make written findings of fact and conclusions of law that shall be incorporated into the order along with the specific provisions of the Oklahoma Constitution or statute that authorize such an order.
 
Any prior orders sealing records or files inconsistent with the requirements of this section shall be in compliance within one (1) year of the effective date of this act or shall be null and void.

The bill's effective date would be Nov. 1.
 
Any resident of the county in which a case record is sealed would have standing to challenge the closure and be entitled to attorney fees and court costs.
 
Judges could be impeached for sealing records without issuing a written finding of fact and conclusion of law that includes the state Constitution provision or statute authorizing the closure.
 
The sealing of court records in Oklahoma has been an issue for several years.
 
In May, for example, District Judge Ray Dean Linder sealed records of a felony perjury charge filed against an Enid attorney. Linder's reason: "Because I am the district judge. And it will remain sealed until I say it shouldn’t be sealed."
 
The Enid News & Eagle challenged that closure, and another judge overturned Linder. For its efforts, the newspaper received FOI Oklahoma's Marian Opala First Amendment Award on Saturday.
 
Last month, the Tulsa World reported that records in more than a dozen criminal cases had been ordered sealed in the past year in Tulsa County District Court.
 
Among those was a Tulsa judge's order sealing all records involving a material witness to a quadruple slaying. The witness was secretly jailed for more than a month. Records related to her case weren't unsealed until the Tulsa World began asking questions about the woman's incarceration.
 
In 2011, a Tulsa oilman's divorce case in Osage County was opened after the editor of The Bigheart Times questioned why the entire case, including the names of the couple, lawyers and judge, had been sealed. Even the order sealing the case had been closed to the public.
 
In 2010, an Oklahoma County district judge sealed the transcript of an open court hearing in which she had a heated argument with prosecutors. The transcript was unsealed after FOX 25 questioned why it has been closed to the public.
 
In 2008, the Tulsa World reported that the state's district judges had sealed thousands of court cases and documents — mostly because attorneys had simply asked them to — since 2003.
 

 
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.
 

Does allowing only Oklahoma Bar Association members online access to court documents in 64 counties violate the Open Records Act?

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.
 

Enid newspaper gets hearing to unseal records of dismissed charge against attorney

A sealed felony perjury charge against Enid attorney Eric Edwards was dismissed Monday.
 
But the Enid News & Eagle isn't giving up its fight to unseal the records closed by District Judge Ray Dean Linder in June.
 
News & Eagle Publisher Jeff Funk said the manner in which the case was sealed gives the impression of partiality and undue secrecy.
 
"The decision to dismiss the charge against Edwards does not address the News & Eagle's concern," Funk said. "Our dispute is with how this entire criminal case was made secret. It was sealed without advance notice, without proper procedure.
 
"How can the public have faith in a justice system that keeps secrets, that hides certain cases in dark corners, especially a case involving another local attorney?
 
"It looks like preferential treatment for Edwards, an attorney, to have a criminal charge against him kept confidential even though charges against all other adults are handled in open court," Funk said. "Our objection is to the secrecy of this case, and we want the court to declare this secrecy, this special treatment, unlawful and wrong."
 
A hearing on the newspaper's motion to unseal the case has been scheduled before Grady County District Judge Richard Van Dyck on July 30 in the Grady County Courthouse in Chickasha.
 
The Oklahoma Supreme Court had reassigned the case from Linder to Van Dyck on June 28.
 
Linder blocked public access to the records the same day the charge was filed against Edwards in May. Linder gave no reason other than he was the judge in the case and "because in my professional opinion it deserved to be sealed."
 
Linder also told the newspaper at the time that the case would "remain sealed until I say it shouldn't be sealed."
 
Major County District Attorney Hollis Thorp later recused his office from the case.
 
Oklahoma County District Attorney David Prater was appointed to replace him. After reviewing the case, Prater filed a motion to dismiss the charge, saying it was in the best interest of justice.
 
Van Dyck agreed on Monday.
 
The newspaper's attempt to unseal the case took a strange twist recently when it received a response from Edwards’ attorney, Stephen Jones, with more than 40 lines blacked out.
 
In a court filing Friday, the newspaper's attorney, Michael Minnis, noted the difficulty of replying to a redacted response.
 
"If the defendant was truly seeking to avoid notoriety about what he claims is a bogus criminal charge, he should have made his arguments in open court and could have avoided the massive publicity he had to know would be caused by trying to make the case disappear shortly after it was filed,” Minnis wrote.
 

 
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.

Newspaper seeks to open court records sealed by district judge

The Enid News & Eagle filed two motions Tuesday in Major County District Court to unseal the records of a felony perjury charge filed against an Enid attorney in May.
 
District Judge Ray Dean Linder blocked public access to the records the same day the charge was filed against attorney Eric Edwards.
 
Asked why he had sealed the case, Linder gave these reasons:

• "Because in my professional opinion it deserved to be sealed.


• "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.


• "My personal opinion, my professional opinion, my 50 years of experience as an attorney."

But Tuesday, the 71-year-old judge denied knowing about the felony case against Edwards.
 
"I don't know what case you're referring to," he told the newspaper.
 
When Linder was told the case name again, he asked: "Is that a sealed case? I mean, are we playing games here?"
 
When the newspaper asked if he knew of a felony perjury case against Edwards, Linder said, "I have heard some rumors about it, I guess, but I have no direct information since the case is sealed and I don't have access to the records."
 
In the newspaper's story published today, News & Eagle Publisher Jeff Funk raised serious questions about why Linder had become involved in the case.
 
"It appeared the charge against Eric Edwards was assigned to a Major County judge to hear, but a judge came in from another county, took over this case immediately and sealed it," Funk said. "Why such extraordinary behavior?"
 
Linder presides over Oklahoma's 4th Judicial District, Division 1, which covers Alfalfa, Dewey, Major, Woods and Woodward counties. But his courtroom is in Woods County.
 
Linder had told the newspaper that the case would "remain sealed until I say it shouldn't be sealed."
 
But the Enid News & Eagle sought Tuesday to intervene in the case for the purpose of filing a motion to unseal the case record and to lift Linder's order sealing the case.
 
In the motions filed on behalf of the newspaper, Oklahoma City attorney Michael Minnis contended that Linder had failed to follow the proper procedures for closing a court record.
 
District judges are required to give adequate public notice that the closure might be ordered, provide interested parties an opportunity to object before deciding to seal the records, and state their reason along with specific findings supporting the decision.
 
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))
 
Thank you to Funk and the News & Eagle for standing up for the public's right of access.
 

 
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 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.

Oklahoma Supreme Court supports public's need to know by not limiting personal information in court records

Oklahoma Supreme Court justices on Monday unanimously agreed not to ban complete dates of birth and street addresses from criminal and civil court records.

That's a surprise given the majority's ruling in late July denying public access to government employees' birth dates and worker identification numbers in personnel files. The majority said no valid public interest existed in knowing the information.

Just two months later, the court proposed requiring that filers remove all but the year from dates of birth, the street addresses from home addresses, the names of minor children, all but the last four digits of Social Security, drivers license, taxpayer identification and "other personal identification numbers" from court records in criminal and civil cases.

But the rule released Monday leaves complete dates of birth and street addresses in court records.

And it permits -- but doesn't require -- filers to keep confidential all but the last four digits in Social Security, taxpayer identification, financial account and driver's license numbers.

As Chief Justice Steven W. Taylor said in a concurrence:

This rule affirms the doctrine that (other than those sealed or closed by long-established law) every document filed with the Court Clerk is a public record. And this rule does not prohibit the inclusion of any information in any filed document.

Taylor's concurrence was joined by Justice Yvonne Kauger. She and Taylor had dissented in the government employees' date of birth ruling.

Under the rule released Monday, filers are responsible for following the guidelines. District court clerks are not responsible for reviewing documents for compliance. A document filed with the court clerk "become a public record as filed" even if it contains Social Security, taxpayer identification, financial account and driver's license numbers, dates of birth, street addresses "or other sensitive information."

The rule does not apply to felony, misdemeanor, traffic ticket or other cases where statutes or Court of Criminal Appeals rules "require the inclusion of the complete personal identifier number."

FOI Oklahoma Inc. and a number of other organizations and individuals had urged the court to reconsider its proposed limit on information in court records.

The court's decision Monday is a victory for the public's need to know in Oklahoma. The public has an interest in identifying elected officials, government employees and public figures involved in court actions. Oklahomans also have an interest in knowing more about the people in their lives, including those they do business with and those chosen to care for children.

The decision also helps individual Oklahomans distinguish themselves from others with similar names who are involved in court actions. In that way, the rule protects the privacy of Oklahomans.


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.

FOI Oklahoma asks state Supreme Courts to drop proposed rules that would limit information in court records

Oklahomans have until Friday to tell the state Supreme Court what they think of proposed rules that would ban personal information from court records.

Here is FOI Oklahoma's letter to the court:

Freedom of Information Oklahoma Inc. asks the Oklahoma Supreme Court to reconsider its proposed rules that would remove personal information from criminal and civil court records.

FOI Oklahoma is a statewide organization founded in 1990 to educate the public on rights of the First Amendment and to promote openness in government. It has a broad based membership including journalists, attorneys, librarians and others interested in preserving the free flow of information.

The organization believes the court’s proposed rules are over broad and would negatively impact basic information that every citizen of the state should be able to access easily.

Especially chilling is the proposal to redact personal identification information. The public would lose its ability to track defendants in criminal and civil cases.

Although the court has said it does not want to limit access to court documents; that appears to be exactly what the proposed rules would do.

It is in the best interest of the public to have as much information available as possible. Erasing this information as proposed by the court would be a step back, not a step forward.

FOI Oklahoma endorses former Attorney General Drew Edmondson’s statement opposing any rule or legislation that limits the public’s right to know. Edmondson said that as a former prosecutor, having access to identification such as dates of birth on criminal court records is important.

FOI Oklahoma applauds the court’s work in making court records available electronically.
However, the organization feels removing personal identifiers from these records negates any positive aspect of electronic records.

FOI Oklahoma hopes the court will recognize the public’s right to full access of this information far outweighs all other concerns.

Sincerely,

Bryan Dean, President, FOI Oklahoma
Staff Writer, The Oklahoman

Tulsa oilman's divorce case in Osage County opened after secrecy questioned by newspaper

A divorce case in Osage County was opened Wednesday after the editor of The Bigheart Times questioned why the entire case, including the names of the couple, lawyers and judge, had been sealed.

Even the order sealing the case had been closed to the public.

Debra Zinke, owner of the Z7 Bar Ranch in Osage County, is seeking a divorce from Robert Zinke, the president of Tulsa-based oil and gas company Zenergy Inc., Bigheart Times owner Louise Redcorn reported today for the Tulsa World.

(ZINKE, DEBRA R vs. ZINKE, ROBERT M, FD-11-00142, Osage County, July 22, 2011)

Redcorn had challenged the manner in which the case had been sealed in Osage County on July 22.

Gentner Drummond, attorney for Debra Zinke, told Redcorn that the state Open Records Act justified the case being sealed.

No, it doesn't.

Drummond also claimed that divorce cases are commonly filed under seal in Oklahoma.

No, they are not. And such a practice should not become common.

Our public court system is just that -- public. The rich and powerful don't have a separate judicial system in our state.

Why else should the public be entitled to know what's in a divorce case?

First, the public is entitled to make the most informed choice possible when selecting who will operate its government. Divorce files, like many other court records, can provide valuable information about business dealings and other aspects of a candidate for political office, an elected official or a powerbroker who influences government.

Take, for instance, the divorce file of then-Tulsa mayoral candidate Dewey Bartlett Jr. In September 2009, Michael Bates posted on his conservative blog Batesline a small portion of the 2002 case file that brought into question Bartlett's financial acumen, a key selling point in his campaign.

(After Bates began posting parts of the file, Bartlett succeeded in getting a Tulsa County special judge to seal the file -- a day or so after Bartlett had signed FOI Oklahoma's Open Government Pledge.)

Second, if some divorce records in the public court system are closed, why not seal everyone’s files? Because the information in those court files can help each of us make more informed life-affecting decisions. Choosing a business partner? Hiring an employee? Selecting a doctor, baby-sitter or day-care provider for your child? Concerned about your daughter’s new boyfriend? Etc.

Personal information in government-held records can help us make better decisions about the people and events most important in our lives.

Third, 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.

In requesting the Zinke divorce case be filed, Drummond wrote that "publication of the name of the parties in this case, either in the public record or through public media, would do irreparable economic harm to the parties, and their related companies."

How? Why?

He cited no laws or court rules to justify sealing the case, reported Redcorn.

She said Osage County District Judge John Kane deferred her questions to Drummond but suggested that "irreparable harm" could result if the case was open. She said records show Kane granted the order "in the interests of justice."

What justice? What compelling reason relevant to this case did Kane have for sealing the entire file and overriding the public interest in open court records?

Kane's decision smacks of smacks of impropriety and favoritism.

Drummond said he was "conceding ground" by having the file opened.

He also said he should take the blame for his "legal shenanigans."

"I was culpable. I don’t think Judge Kane was culpable in any way, and I know the Zinkes aren’t culpable. They just wanted to do it privately. They never mentioned the word 'seal,'" he told Redcorn.

But Drummond told her that he would defend the privacy of any final settlement "over his dead body."

The final settlement shouldn't be closed any more than the rest of the file should have been.

But if it is, the public can trust that Redcorn will be there to challenge such a decision.


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.

Oklahoma County judge seals transcript of her courtroom argument with prosecutors

Oklahoma County District Judge Tammy Bass-LeSure sealed the transcript of an open court hearing in September in which she had a heated argument with prosecutors, FOX 25 in Oklahoma City reported Wednesday.

Bass-LeSure yelled at prosecutors after they asked her to step down from a criminal trial in which the defense attorney was one of three attorneys the judge had recommended to a criminal defendant with a pending case assigned to her, the television station reported.

The district attorney’s complaint about that recommendation led to Bass-LeSure recusing herself in late August from the murder trial of an Oklahoma City pharmacist because one of his defense attorneys also was among those three.

In mid-September, Bass-LeSure announced she would no longer hear criminal cases as of Jan. 1.

Bass-LeSure was presiding over a criminal hearing on Sept. 8 when prosecutors asked that she remove herself from that case as well, FOX 25 reported.

After a heated exchange with the prosecutors, Bass-LeSure ordered the transcript of the hearing sealed, the station reported.

On Sept. 20, a court order was issued releasing the transcript “to the State of Oklahoma.” The order was signed by Oklahoma County District Judge Lisa Davis on behalf of Judge Ray C. Elliott, according to the court document.

FOX 25 was not able to obtain a copy of the transcript Wednesday.

Bass-LeSure’s order sealing the transcript – and a court order releasing it to only the district attorney's office – would seem unlikely to survive a legal challenge.

Federal courts have said judicial documents are presumptively open to the public and may be sealed only if that right to access is outweighed by the 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))

As open government attorney Bob Nelon told FOX 25:

The reason for excluding public access to the transcript of what happened in open court is so rare as to almost be unjustifiable. It is essential that the public be able to watch the justice system under way.

Perhaps someone at the Oklahoma County Courthouse or at the district attorney's office will agree and avoid the need for litigation at taxpayer expense.

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

Tulsa County judge blocks online access to court records during civil trials; Court clerk expects such restrictions to become more common

A Tulsa County district judge has twice ordered the removal of online court records for the duration of the related civil trials, the Tulsa World reported Monday.

Judge Linda Morrissey ordered the docket sheets removed from the Oklahoma State Courts Network Web site during a recent medical negligence case and a condemnation case in March, the newspaper said.

The Tulsa County court clerk told the newspaper she thinks these restrictions will become more common in Tulsa County. "I am surprised it has not come up in a criminal case," said Sally Howe Smith.

Morrissey told the newspaper the restrictions were intended to protect the litigants' right to a fair trial.

But before the judge restricts online access to public records, she should take other steps to protect the litigants' rights or be able to justify that those steps won't be effective.

A number of U.S. Circuit Courts of Appeal, including the Tenth Circuit, have used the balancing test for closing courtrooms to determine if court documents should be sealed.

Because the public is entitled to see these records, the judge may stop that 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))

Morrissey told the Tulsa World that she routinely gives strong admonitions to jurors that they not search the Internet for information about the case being tried.

But the judge doesn't seem to believe that jurors are taking her seriously.

Subsequent coverage: Digital age can heighten public access quandary, editorial, The Oklahoman, 5.5.10.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

Will a state Supreme Court official decide which Oklahomans are entitled to obtain digital records of multiple court cases?

Comments this week by the state Supreme Court’s chief justice haven’t clarified how the court will handle requests from the general public and press for bulk copies of digital court records.

James Edmondson told The Oklahoman on Tuesday the court would comply with requests from noncommercial entities and the media on an individual basis.

But on the same day, Edmondson also told the Tulsa World the court “will honor media and public requests for information."

Did he mean all or just some?

Edmondson told both newspapers the court’s new prohibition on requests for bulk case data was intended to apply only to commercial entities.

However, the court’s administrative directive, passed unanimously by the justices on Oct. 8, makes no distinction between commercial and noncommercial requests. Nor does it mention requests from the public and press being decided individually by a court official. (SCAD-2009-92)

That the court would deny requests from companies is troubling enough. More disturbing would be a court official deciding which Oklahomans are worthy of receiving digital court records for more than one case at a time.

Edmondson told the Tulsa World this week, "The Supreme Court will comply with the Open Records laws and other laws affecting public records.”

But that law doesn’t allow a sheriff, police chief, mayor, or state agency director to decide who can and who cannot have access to the government records in their possession. For good reason: Government officials have a tendency to shield from public view the documents that embarrass them.

Edmondson’s brother, state Attorney General Drew Edmondson, said a decade ago that requesters can be asked for only enough information to determine if a search fee should be charged because the records request is for a commercial purpose.

Otherwise, he emphasized in a written opinion, “In no event could a public body or public official ever require a requestor to provide the reason for a request for access to records. . . .” (1999 OK AG 55, ¶¶ 18-19)

ALL Oklahomans “are vested with the inherent right to know and be fully informed about their government.” (OKLA. STAT. tit. 51, § 24A.2)

That includes our courts.

To put such a decision in the hands of a bureaucrat would abrogate the intent and purpose of the Oklahoma Open Records Act: “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.)

Concerns over the court’s administrative directive perhaps could have been avoided if the justices had included the public in their decision-making.

After all, these records belong to the public.

All we can hope for now is that the court will either rescind or substantially revise its rule.


Joey Senat, Ph.D.
Associate Professor
OSU School of Journalism

Barring bulk copies of electronic court records connected to plan to consolidate all such records online?

The Oklahoma Supreme Court's decision to bar bulk distribution of electronic court records apparently is connected to a plan to consolidate court records from all 77 counties onto one Web site with free access by the public, according to newspaper coverage Wednesday.

Until then, district court records will be available for free on the state-run Oklahoma State Courts Network and the privately owned On Demand Court Records, The Oklahoman reported.

The newspaper reported the Supreme Court signed a $1 million contract in August with KellPro Inc., the operator of On Demand Court Records, to get data from the courts it serves ready for conversion to the new system.

The administrative directive barring bulk distribution resulted from a request by Edmond-based INAD Data Service LLC for electronic copies of all district court and workers' compensation court case information, reported The Oklahoman and Tulsa World on Wednesday.

Chief Justice James Edmondson told the Tulsa World that the court "did not have a specific rule to determine how to handle this request, which could have cost the (requester) an estimated $20,000 to $40,000 to have the request filled."

So the decision was to bar such requests?

Edmondson told the newspaper that media requests for bulk copies should not be affected by the new rule.

However, the directive, which the justices unanimously approved on Oct. 8., states, "Bulk distribution of any electronic case data by a software provider is not allowed.

"Electronic access is available only to the electronic case information of a particular case. When a search for electronic case information for an individual case returns multiple results, each result may be viewed only individually." (SCAD-2009-92)

No mention of exceptions for requests made in the public interest.

Edmondson said the court would "comply with the Open Records laws and other laws affecting public records."

But the directive seems to carve an exception from the Open Records Act. It's an exemption that certainly wouldn't be tolerated in regard to other government records.

The justices are to be applauded for wanting to make district court records from all 77 counties available online for free.

But what does barring bulk distribution have to do with that plan?

Perhaps the justices intend to remove the restriction once the new system is in place. We don't know because they haven't explained their plan to the public.


Joey Senat, Ph.D.
Associate Professor
OSU School of Journalism

Oklahoma Supreme Court bars bulk distribution of electronic case information

Meaningful analysis of the state's court systems would be nearly impossible under an Oklahoma Supreme Court plan to bar bulk distribution of electronic case information, say FOI Oklahoma Inc. members who conduct database reporting.

An administrative directive released Oct. 8 by the court states, "Bulk distribution of electronic case information is not allowed." (SCAD-2009-92)

The justices provided no explanation or justification for the rule. They unanimously approved the directive.

Under the directive, "electronic access is available only to the electronic case information of a particular case. When a search for electronic case information for an individual case returns multiple results, each result may be viewed only individually."

"Bulk distribution of any electronic case data by a software provider is not allowed," according to the directive.

The state Supreme Court earned FOI Oklahoma's inaugural Black Hole Award in 2008 after justices limited online access to court dockets only. The justices also restricted which information the public could obtain from the paper copies of legal documents filed with court clerks.

Following public outcry over the rules, the court rescinded them.

Justice Yvonne Kauger dissented from the original order, saying: "The court made this decision with input only from the court clerks. Others directly affected by the decision — the bar, the bench, the Legislature, the public — were not consulted.”

Seems like they've done that again.

Thank you to FOI Oklahoma board member Doug Wilson for alerting us.


Joey Senat, Ph.D.
Associate Professor
OSU School of Journalism