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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.
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.
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
(Essay by Doug Wilson, an FOI Oklahoma Inc. board member and attorney)
What price justice?
In America, when government officials adopt a mentality of "us vs. them," the rule of men tramples underfoot the rule of law and democracy fails.
In a lawsuit brought by a client under the Oklahoma Open Records Act, I recently took the sworn deposition of a gentleman who has worked for the State of Oklahoma for more than 25 years. At the time of his deposition, he was employed by the Ad Valorem Division of the Oklahoma Tax Commission.
Being uncertain of just exactly what I was asking, he responded with a question of his own. After I clarified my question for him, his response took me by surprise:
25-year State Employee: But you're saying John Q. Public comes in and asks and he says, "I want this information." Okay? Am I understanding your question?
Mr. Wilson: Yes, sir. Under the Open Records Act, the government of the people by the people for the people.
25-year State Employee: Where's that government at?
In his defense, maybe he intended his comment to be tongue-in-cheek, but it didn't strike me that way. The phrase, a "government of the people, by the people, for the people," comes from the last line of Abraham Lincoln's Gettysburg Address:
. . . that we here highly resolve that these dead shall not
have died in vain -- that this nation, under God, shall have a
new birth of freedom -- and that government of the people, by
the people, for the people, shall not perish from the Earth.
In America, government should never be "us versus them," but simply "US." When it's just US, it's not hard to understand why the state's digital database(s) of court information is made available at cost to anyone. It's just US.
Money should never stand between a person and justice. Equal Justice for all is worth dying for. Equal Justice for those who can afford it, not so much.
Many people have heard the oft-repeated judicial refrain: "Ignorance of the law is no excuse."
In the digital world in which we live, when we can store entire libraries inside a laptop, those in government should be tripping over each other trying to put "all the law" in one big digital database where every person can view it without charge and find whatever help he or she needs to stay on course.
When a government body in these United States of America charges people more than cost just to see and copy the law, somewhere, Abraham Lincoln most surely weeps.
Douglas A. Wilson
Attorney and Counselor at Law
521 South Hafner Street, Suite B
Stillwater, OK 74074-3980
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
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
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
No, the First Amendment doesn't grant the right to own a pet or drive a car. Property rights and the right to bear arms aren't in it either.
Oklahomans' ignorance of their fundamental federal rights is demonstrated on a video shot by my team of OIDJ students in the past week. The print story discusses the disappearance of civics education in schools.
We didn't have time to include video of the students' other questions, which included:
Who are Oklahoma's two US senators? (Tom Coburn's gotta work on his name recognition. Surprising.)
Which Oklahoma court hears appeals of criminal convictions? (No one knew about the Oklahoma Court of Criminal Appeals. Not surprising. But still disappointing.)
How many justices are on the Oklahoma Supreme Court? (Most either didn't know or said eight. Some guessed to get the correct number of nine.)
Makes for an interesting story.
Joey Senat, Ph.D.Associate ProfessorOSU School of Journalismjoey.senat@okstate.edu
