Owasso releases police videos to newspapers; Official now says arrest videos are public records

The Tulsa World and Owasso Reporter received copies Monday of police videos showing an arrest that led to the firing of an Owasso police officer who was recently reinstated by an arbitrator.
 
The city had refused the newspapers' requests for a copy of lapel camera video showing a police lieutenant using what the city deemed was excessive force and for which he was fired.
 
The Tulsa World sued the city in December for access to the video. The lawsuit is pending, the newspaper reported Monday.
 
At the time, City Manager Rodney J. Ray said the public interest in releasing the videos didn't outweigh the reasons for denying access.
 
On Monday, Ray told the Tulsa World that "we are in complete agreement that this is an open record."
 
He also told the newspaper that the footage was released because of the arbitrator’s ruling last week and because the man arrested in the video had released the city from liability over the disclosure.
 
Ray said the release of arrest videos by other cities had also changed his mind.
 
In denying the request, Ray and the city had argued that arrest videos are not included in the eight categories of law enforcement records that must be released under the state Open Record Act. (See OKLA. STAT. tit. 51, § 24A.8(A)(1-8))
 
The statute allows police departments to deny access to other law enforcement records "except where a court finds that the public interest or the interest of an individual outweighs the reason for denial." (OKLA. STAT. tit. 51, § 24A.8(B))
 
But Ray and the city contended that the public interest was outweighed by the officer's right to appeal his termination to the city's Personnel Board and to seek binding arbitration.
 
Monday's release is the second time in eight months that Owasso has provided police video after being sued.
 
In December, city officials agreed to release the police officer lapel camera video and audio materials sought by the family of a Tulsa man who died Oct. 27 in the Tulsa County jail.
 
The family had filed an Open Records Act lawsuit against Owasso after the police department would release only an arrest report, a radio log and a computer-aided dispatch report.
 
In the lawsuit, the family argued that the lapel video and other materials were "essential in determining the events which transpired during the arrest," the Tulsa World had reported.
 
Access to videos of arrests has been an issue elsewhere in the state.
 
In March, a Washington County judge ordered Bartlesville police to provide the local newspaper with a copy of hospital surveillance video that had led to the arrest of two officers in December.
 
That decision contrasted with a Rogers County judge's decision in August that the Claremore Police Department's dash-cam recordings are not public records. But the judge said requesters could ask a court to find that the release of a particular recording would serve a public interest that outweighs the reason for denial.
 
A year ago, Catoosa decided to release its police department's audio and video recordings after the city was sued for access. Officials agreed that the recordings "are subject to the Open Records Act."
 
In 2004, the state Supreme Court held that Department of Public Safety recordings of administrative hearings contained facts concerning arrests and therefore were open under the Open Records Act. (Fabian & Assoc., P.C., v. State ex. rel. Dept. of Public Safety, 2004 OK 67, ¶ 14)
 
The statute 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(2))
 
"By this statute," the Supreme Court said, "DPS is required to make available for public inspection facts concerning the arrest. Fabian asserts that the requested tapes contain the facts concerning the arrest and therefore § 24A.8(A)(2) requires the tapes to be open for public inspection. We agree."
 
Those tapes were recordings of administrative hearings concerning the revocation of drivers' licenses.
 
Certainly the same reasoning applies to the police recordings of actual arrests.
 

 
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.

Owasso agrees to release police officer lapel camera video, audio materials after family files Open Records Act lawsuit

Owasso city officials have agreed to provide the police officer lapel camera video and audio materials sought by the family of a Tulsa man who died Oct. 27 in the Tulsa County jail, the Owasso Reporter reported Thursday.

The family had filed an Open Records Act lawsuit against Owasso after the police department would release only an arrest report, a radio log and a computer-aided dispatch report.

In the lawsuit, the family argued that the lapel video and other materials were "essential in determining the events which transpired during the arrest," the Tulsa World reported.

An attorney for the city had told the family that the video and audio materials were "in my opinion outside the scope of documents you are entitled to under the Open Records Act," the Owasso Reporter said.

In November, Owasso City Manager Rodney J. Ray refused requests by the Owasso Reporter and Tulsa World for a copy of lapel camera video showing a police lieutenant using excessive force for which he was fired.

Ray said arrest videos are not included in the eight categories of law enforcement records that must be released under the state Open Record Act. (See OKLA. STAT. tit. 51, § 24A.8(A)(1-8))

The statute allows police departments to deny access to other law enforcement records "except where a court finds that the public interest or the interest of an individual outweighs the reason for denial." (OKLA. STAT. tit. 51, § 24A.8(B))

But Ray said the public interest in releasing the lapel camera video of the police lieutenant using excessive force didn't outweigh protecting his right to appeal his firing.

In August, a Rogers County judge held that the Claremore Police Department's dash-cam recordings are not public records under the state Open Records Act.

But Associate District Judge Sheila A. Condren's ruling on the status of police videos runs contrary to relevant cases and to common practice in the state.

In 2005, an Oklahoma County district judge barred "the Oklahoma Highway Patrol from keeping videotapes of traffic arrests secret." (That ruling spurred legislators that year into exempting all Department of Public Safety dash-cam audio and video recordings.)

A year earlier, the state Supreme Court had held that Department of Public Safety recordings of administrative hearings concerning revocation of drivers' licenses were public under the Open Records Act. (Fabian & Assoc., P.C., v. State ex. rel. Dept. of Public Safety, 2004 OK 67)

The Supreme Court said the requested tapes contained facts concerning arrests and therefore were open under the Open Records Act. (Id. ¶ 14)

The statute 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(2))

"By this statute," the Supreme Court said, "DPS is required to make available for public inspection facts concerning the arrest. Fabian asserts that the requested tapes contain the facts concerning the arrest and therefore § 24A.8(A)(2) requires the tapes to be open for public inspection. We agree."

Owasso city officials apparently agreed that the lapel video should be public after the family forced them into court on the issue.


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

Update: Owasso officials making 'work session' documents available to public prior to meetings

Owasso residents can now read staff memoranda and other documents that form the basis for policy discussions by the City Council during its monthly "work sessions."

City officials had been withholding the documents, claiming they were drafts exempted under the state Open Records Act.

But the statute contains no provision allowing governments to keep "drafts" secret from the public.

Instead, 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)

In late October, City Manager Rodney Ray agreed to release those "work session" documents to the Owasso Reporter even though he disagreed that the Open Records Act required him to do so.

The Owasso Reporter asked City Attorney Julie Lombardi if the work session documents would be made available to the general public, too.

In November, the city began making the documents available to the general public.

Ray's administrative assistant, Juliann M. Stevens, emailed the September agenda packet to Jennifer Gray, who was a student in my media law course and also an Owasso resident.

The city also is posting the agenda packets for "work sessions" online. See the Nov. 8 packet and the one for tomorrow (Dec. 13).

Thank you to the Owasso city officials for making the documents easily available to the public.

Kudos to the Owasso Reporter for sticking up for not just its need to know but for the public's as well.


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.

Owasso police won't identify officer being investigated for excessive force or release lapel camera video until query completed

Owasso officials say they won't identify a police officer accused of using excessive force or release lapel camera video of the incident until the investigation is completed, the Owasso Reporter said Thursday.

The 27-year-old suspect has been paid $1,500 to settle the June 30 incident, City Attorney Julie Lombardi confirmed for the newspaper.

The officer had been placed on paid leave during the investigation, Police Chief Dan Yancey told the newspaper.

A 2009 attorney general opinion permits public agencies to 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, ¶ 29)

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

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))

Edmondson noted that the Open Records Act does not mention "administrative leave with pay."

That oversight should be rectified by state legislators next year.

In Owasso, the police department released the incident report, which identifies three officers as having been directly involved in arresting the 27-year-old suspect.

The Owasso Reporter argued that city officials had a responsibility to differentiate between officers under investigation and those who are not.

The newspaper said Yancy indicated that images of the use of force being investigated were captured on at least one of the department’s new lapel cameras that patrol officers wear.

A relative of the suspect complained to the newspaper about the circumstances under which the $1,500 settlement was reached.

Representatives for the city approached the suspect while he was locked up in the Tulsa County Jail on Oct. 9 in connection with a 2010 misdemeanor case that prosecutors are seeking to have a deferred sentence arrangement set aside and punishment imposed, the newspaper was told.

The suspect was without benefit of a lawyer when city officials offered him money to pay court costs and medical expenses in return for signing a release not to sue the city over excessive force used on June 30, the newspaper was told.


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.

Owasso officials provide newspaper with 'draft' documents given to council members for 'working sessions' but mum on whether same records will be provided to general public prior to such meetings

Owasso city officials agreed this month to provide the Owasso Reporter with staff memoranda and other documents that form the basis for policy discussions by the City Council during its monthly "work sessions," the newspaper reported today.

But city officials haven't said if the same records will be made available to the rest of the public.

The city posts on its website supporting documentation for actions to be taken in two of its monthly meetings. But it has withheld and treated as confidential the staff memos and other documents that form the basis for council discussions and debates during monthly "work sessions," the newspaper said.

Earlier this month, City Manager Rodney Ray agreed to release those "work session" documents to the newspaper but disagreed that the Open Records Act requires him to do so. He told the newspaper:

While our staff opinion certainly disagrees with your expert’s opinion and we could, for debate purposes, quote other experts with experience in the Oklahoma Open Records Act, there seems to be no real reason to do so.

Our staff’s record, and our agenda packets have been a model for cities in the state because of their transparency and openness to citizens and media. Based on that culture and our desire to go beyond the norm (when possible) when making our governmental actions transparent I have determined that, with some obvious restrictions allowed by statute relating to litigation and personnel, we will begin including the background memoranda in the packet that is provided you for these sessions.

The newspaper had received documents for the council's September "work session" from a source. Among the documents were memos from the city’s administrative staff to the council that were labeled “Recommendation." Some documents were also labeled "draft," the newspaper said.

But the Oklahoma Open Records Act contains no provision allowing governments to keep "drafts" secret from the public.

Instead, 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)

Just two years ago, the Oklahoma Court of Civil Appeals told 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)

In reaching its decision, the court also took 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)

And in 2004, a state trial judge held that information packets distributed along with agendas to members of public bodies are open to the public under the Open Records Act.

“Only those portions deemed confidential pursuant to Statute may be redacted,” said Delaware County District Judge Barry Denney.

Bottom line for Owasso residents: Their city officials have no justification under the state Open Records Act for categorically denying access to documents given to council members.

In an email Oct. 14, the Owasso Reporter asked City Attorney Julie Lombardi if the work session documents would be made available to the general public, too. The newspaper said she had not replied as of its press time for today's edition.

The answer should be yes.

And the City Council members should tell the city manager and attorney to place the "work session" documents online so that the general public has access.

Oklahomans are entitled to know beforehand the details of what a public body will be considering. Otherwise, they has no opportunity to provide input to those elected or appointed officials prior to a decision being made.

If you are an Owasso resident and request the agenda packet for the council's Nov. 8 work session, please let me know what response you get. In the meantime, you can reach your councilman via email on the city website.

Let him know how important an open city government is to you.


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.

Owasso officials find way around confidentiality agreement, reveal amount paid to settle federal lawsuit

Owasso officials Wednesday released documents indicating the city paid $175,000 to settle a federal lawsuit by a former police officer, the Tulsa World reported today.

The former police officer's name was not in the documents, but the records show a payment was made from the city's self-insurance fund to his attorneys on the same day the case was dismissed in court, the newspaper explained.

In early December, Owasso officials refused to disclose the amount, saying it would violate a confidentiality agreement the city had agreed to as part of the settlement.

However, state law requires that "judgments, orders, and settlements of claims shall be open public records unless sealed by the court for good cause shown." (OKLA. STAT. tit. 51, § 158(G))

A federal judge had refused a request by city officials and the former officer to order confidentiality for the settlement terms.

On Wednesday, Owasso City Manager Rodney Ray said expenditure and transaction records for the city's general liability self-insurance fund were covered by the Open Records Act and disclosure wouldn't violate the confidentiality agreement.

"While the City of Owasso is bound by the terms of the settlement agreement, the city concomitantly has a compelling duty under state law to respond to requests made under the Open Records Act for documents and records," he told the Tulsa World in an e-mail. "In addition, as always, the city of Owasso seeks to be as transparent as possible in its decisions and actions."

In early December, this blog questioned why local governments are allowed to enter into secret settlements in the first place.

It's the public's money -- even if paid from a self-insurance fund or by an insurance company to which the city pays premiums.

Taxpayers are entitled to know -- need to know -- how their elected officials spend public funds and how those officials agree to settle claims against governments.

Legislators should specifically prohibit state agencies and local governments from agreeing to keep settlements secret.


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

Owasso officials enter into secret settlement to end federal lawsuit, refuse to say how much money was paid

Owasso city officials are refusing to disclose how much money they paid to settle a federal lawsuit filed by a former police officer, the Tulsa World reported this week.

Under state law, "Judgments, orders, and settlements of claims shall be open public records unless sealed by the court for good cause shown." (OKLA. STAT. tit. 51, § 158(G))

A federal judge recently refused a request by city officials and the former officer to order confidentiality for the settlement terms, the newspaper reported.

U.S. District Judge Gregory K. Frizzell wrote that it "must be denied, as the court no longer has jurisdiction over the case, the parties have not advised whether the settlement is made with any public monies, whether the information is subject to the Open Records Act, whether a confidentiality order could supersede the Open Records Act, and why this court ought to enter an order which might impede an Open Records Act request."

Thank you, Judge Frizzell.

But despite Frizzell's decision, Owasso city officials still refuse to disclose the amount to the Tulsa World.

City Attorney Julie Lombardi told the Tulsa World the city's self-insurance fund is being used to pay the settlement. She claimed the city is barred by the terms of the settlement from disclosing the amount agreed upon last month.

Dear Legislators, why is the city allowed to enter into a secret settlement in the first place? It's the public's money -- even if paid from self-insurance fund or by an insurance company to which the city pays premiums.

The taxpayers of Owasso are entitled to know -- need to know -- how their elected officials spend public funds.

The Owasso City Council unanimously approved the settlement terms in November.

Absent legislative language prohibiting public bodies from entering secret settlements, the voters of Owasso are left with electing City Council members who won't agree to such terms.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism