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.

Enid officials won't identify two police officers placed on administrative leave because of homicide investigation

Enid officials won't tell the public which two police officers are under investigation because of how a homicide investigation was handled, the Enid News & Eagle and The Oklahoman reported this week.

The two officers are on paid administrative leave, the newspapers reported.

The News & Eagle noted that the public statement it received from police officials said the officers were “suspended with pay.”

The public might never know the names of the officers.

A recent attorney general opinion said a public agency may keep secret the names of employees placed on paid administrative leave if, under the agency’s personnel policies, that action doesn’t constitute “a ‘final’ or ‘disciplinary’ action, nor a ‘final disciplinary action resulting in loss of pay, suspension, demotion, or termination.’” (2009 OK AG 33)

The opinion came about after Oklahoma City officials refused to identify an employee placed on paid administrative leave during an investigation into the possible misuse of a federal grant.

Attorney General Drew Edmondson said once the investigation is complete and a final disciplinary action occurs, “the record(s) indicating that action must be must be available for public inspection and copying."

The Oklahoma Open Records Act makes public "any final disciplinary action resulting in loss of pay, suspension, demotion of position, or termination." (OKLA. STAT. tit. 51, § 24.A(7))

It permits, but does not require, public bodies to keep confidential the personnel records related to "internal personnel investigations including examination and selection material for employment, hiring, appointment, promotion, demotion, discipline, or resignation."

Enid police Capt. Jack Morris told The Oklahoman, "There is no disciplinary action taking place, and this is normal protocol.”

The News & Eagle reported that Enid City Attorney Andrea Chism disavowed any connection to the press release and called the use of the word suspension unfortunate.

According to both newspapers, the Oklahoma State Bureau of Investigation will conduct a criminal investigation into the officers' actions. An administrative investigation by the police department would follow.

“I’m not releasing the names until a decision is made on criminal actions or disciplinary action requiring the release of open records,” Enid Police Chief Rick West told the News & Eagle.

Update: "Attorney for Grassino, Nichols comes forward with identities," Enid News & Eagle, Dec. 22, 2009.

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