Oklahoma DA Council's new leader refused to prosecute blatant Open Meeting Act violations, seems opposed to public access to police dash-cam video

The new chairman of the Oklahoma District Attorneys Council is the same DA who refused to prosecute the Bernice Board of Trustees for several Open Meeting Act violations revealed by a state audit in 2012.
 
Eddie Wyant also seems likely to be asking state legislators next year to close public access to police dash camera recordings of arrests.
 
The council is the state agency that provides training as well as administrative, financial and personnel support for the state's 27 district attorneys.
 
Wyant, district attorney for Ottawa and Delaware counties, will serve as its 2013-14 chairman by virtue of being president of the Oklahoma District Attorneys Association. He served as the previous vice chairman of the council and president-elect of the association.
 
In June 2012, Wyant decided not to file criminal charges against Bernice trustees despite a state audit detailing several violations of the Open Meeting Act.
 
The state auditor's office found instances between July 1, 2008, and June 30, 2011, in which the town trustees had abused the statute's "new business" provision and unquestionably violated the Open Meeting Act by:

• Discussing contracts of independent contractors in executive session;
• Not taking minutes of executive sessions;
• Not listing the statutory authorization for executive sessions or listing the wrong one;
• Not including the names or unique titles of employees to be discussed in executive sessions as well as not identifying the "specific purposes of the sessions – whether employment, hiring, appointment, promotion, demotion, disciplining, or resignation";
• Voting in an executive session; and
• Discussing the creation of a job, rather than hiring a specific person, in executive sessions.

One of Wyant's reasons for not prosecuting the trustees for robbing the public of its right to an open government: It did not appear that trustees personally benefited from the violations.
 
But personal gain isn't a requirement for prosecution of an Open Meeting Act violation.
 
The state Court of Criminal Appeals has said criminal intent need not be proved because the conduct is illegal by virtue of the Open Meeting Act. In other words, a crime exists because the statute deemed the conduct to be wrong. (Hillary v. State, 1981 OK CR 78, ¶ 5)
 
The Open Meeting Act also doesn't require prosecutors to prove injury to establish a prima facie case of a violation, the court said. (Id. ¶ 8)
 
Wyant's other reason: Trustees had apparently operated under the advice of their attorney.
 
That excuse ignored a long line of contrary opinions by Oklahoma courts.
 
In 2009, the Court of Civil Appeals said acting on the advice of an attorney did not excuse a public body's violation of the Open Meeting Act. (Okmulgee Co. Rural Water Dist. No. 2 v. Beggs Pub. Works Auth., 2009 OK CIV APP 51)
 
The court said the violation by the Beggs Public Works Authority, "although based on advice of counsel, constitutes a 'willful,' 'conscious' violation of the OMA 'by those who know, or should know the requirements of the Act.'" (Id. ¶ 18)
 
The court quoted from a 1984 ruling in which the Oklahoma Supreme Court said, "Willfulness does not require a showing of bad faith, malice, or wantonness, but rather, encompasses conscious, purposeful violations of the law or blatant or deliberate disregard of the law by those who know, or should know the requirements of the Act." (Rogers v. Excise Bd. of Greer County, 1984 OK 95, ¶ 14)
 
That reasoning was adopted from a 1981 Court of Civil Appeals decision in which the lower court said that even a vote taken in "good faith" could be found to be a willful violation. (Matter of Order Declaring Annexation, 1981 OK CIV APP 57, ¶¶ 24-25)
 
"If willful is narrowly interpreted, if actions taken in violation of the Act could not be set aside unless done in bad faith, maliciously, obstinately, with a premeditated evil design and intent to do wrong, then the public would be left helpless to enforce the Act most of the time and public bodies could go merrily along, in good faith, ignoring the Act," the Court of Civil Appeals explained. (Id. at ¶ 26)
 
"While we discern no bad faith, malice, or wantonness, and while the officials may not have consciously broken the law, we are well-convinced that they knew or should have known the Act's requirements and blatantly or deliberately disregarded the law," the court concluded in that case. (Id. at ¶ 30)
 
Wyant now seems interested in having state legislators overturn a recent state Court of Civil Appeals ruling that police dash camera recordings must be released to the public under the Open Records Act.
 
In July, the Oklahoma District Attorneys Association declined to file a friend of the court brief asking the state Supreme Court to hear the appeal of that decision. Wyant made the motion for the council to take no action on the city of Claremore's request, the Tulsa World reported.
 
But Wyant told the newspaper that doesn't mean prosecutors won't seek legislation to change the decision. He said release of the videos could impair a defendant's right to a fair trial because a statement on camera could later be ruled inadmissible by a court.
 
That argument against public disclosure is specious. Arrest reports and police affidavits including defendant statements are public records. Dash-cam videos also have been made public by local law enforcement agencies across the state for years.
 
At the District Attorneys Association meeting in July, prosecutors questioned why police recordings should be public but those of the Oklahoma Highway Patrol should be kept secret.
 
The state Department of Public Safety’s audio and video recordings were public records until legislators in 2005 gave DPS officials the power to keep them secret. That legislation came after an Oklahoma County trial judge ruled that the OHP videos were public because they contained facts about arrests.
 
The Department of Public Safety and OHP aren't role models for government transparency. They release the videos when it suits them, not the public.
 
The recent Court of Civil Appeals ruling is a victory for common sense and the public's need to know. Public access to dash cam recordings of arrests protects police officers from false allegations of misconduct and provides those arrested with evidence of actual abuse.
 
And as the Open Records Act states, Oklahomans "are vested with the inherent right to know and be fully informed about their government." (OKLA. STAT. tit. 51, § 24A.2)
 
That should include when government officials carrying badges and guns interact with the public.
 
As then-Sen. Jim Wilson of Tahlequah said in 2009:

Our public safety officers are public servants who work at the will of the public, so why shouldn’t the public have access to video of them doing their jobs? It seems to me that releasing these digital records will help dispel the suspicion that they have something to hide.

Tell your legislators to not only reject any attempt to close public access to police dash-cam recordings but also remove OHP's exemption.
 

 
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.
 

Police dash cam video, audio recordings of arrests are public record, Okla. Court of Civil Appeals rules

A police dash cam video of a DUI arrest contains facts concerning the arrest and therefore is public under the state Open Records Act, a three-judge panel of the Oklahoma Court of Civil Appeals ruled 2-1 Friday.
 
In overturning a Rogers County trial judge, the majority relied upon a 2004 state Supreme Court ruling that Department of Public Safety recordings of administrative hearings concerning revocation of drivers' licenses are public.
 
"If an Implied Consent hearing is considered 'facts concerning the arrest,' then surely the video and/or audio recording of the actual arrest must also constitute 'facts concerning the arrest,'" said Judges Robert Bell and Kenneth Buettner on Friday.
 
Chief Judge Larry Joplin cast the dissenting vote but with no written opinion.
 
The Oklahoma Open Records Act 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(A)(2))
 
The Oklahoma Supreme Court in 2004 said the DPS recording of administrative hearings contained facts concerning arrests and therefore are open under the Open Records Act. (Fabian & Assoc., P.C., v. State ex. rel. Dept. of Public Safety, 2004 OK 67)
 
But in 2011, a Rogers County trial judge ruled that Claremore Police Department dash cam recordings were not public records.
 
Associate District Judge Sheila A. Condren said the state Supreme Court case dealt "with what amounts to a transcript of a public hearing."
 
"In contrast, the 'dash cam' recording is a direct piece of evidence," she said.
 
Bell and Buettner said her "holding that the video is exempt because it could be used as evidence in a subsequent criminal prosecution is without legal support."
 
"There is no such exemption enumerated in the Act," they noted.
 
They also noted that although state legislators had exempted Oklahoma Highway Patrol video and audio recordings in 2005 following an Oklahoma County district judge's ruling barring the OHP from keeping videotapes of traffic arrests secret, no such exemption existed for local law enforcement.
 
Condren also had ruled that Claremore did not violate the Open Records Act because the requesters had listed the wrong date -- April 4, not March 4 -- for the arrest and therefore no such video existed for that date.
 
"It is not reasonable to expect a public agency to anticipate what records are being requested," she reasoned. "It is the responsibility of the requesting party to provide accurate information regarding the records they seek."
 
But Bell and Buettner emphatically overturned Condren on that point as well.
 
Police officials might have been initially confused by the wrong date but had subsequently provided many documents concerning the arrest, Bell and Buettner said.
 
They noted that Claremore Police Chief Stan Brown testified that he understood the request was for records of a March 4 arrest and that he refused to provide the video because of his departmental policy requiring such video be requested from the district attorney's office.
 
Brown "knew exactly what" records were being requested, concluded Bell and Buettner.
 
Condren's conclusion that the city had "technically complied" with the request "because of the erroneous date is clearly contrary to the weight of the evidence," the two appellate judges ruled.
 
Bell and Buettner's ruling is a victory for common sense and the public's need to know. Public access to dash cam recordings of arrests protects police officers from false allegations of misconduct and provides those arrested with evidence of actual abuse.
 
Local law enforcement officials typically release dash cam videos. But I won't be surprised if cities and sheriffs ask legislators next year for the same exemption granted to the Oklahoma Highway Patrol.
 
I hope that enough legislators will recognize the value of public access to such recordings and will not only reject such a request but also remove the exemption for OHP video and audio.
 

 
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 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.

Bartlesville newspaper sues city for videotape in which two police officers allegedly assaulted a handcuffed hospital patient

The Bartlesville Examiner-Enterprise today filed an Open Records Act lawsuit against the city and district attorney, seeking a copy of hospital surveillance video that reportedly led to the arrest of two police officers in December.

The two officers were charged with assault and battery on Dec. 1 and fired last month, the newspaper reported.

They are accused of striking and choking a handcuffed patient when they responded with other officers to the Jane Phillips Medical Center to help with a combative patient in September.

The video reportedly shows at least a portion of the incident, the newspaper said.

Bartlesville police officials obtained the video through a search warrant. The newspaper also said District Attorney Kevin Buchanan showed portions of the video to members of the Fraternal Order of Police Lodge 117, many of whom were not involved with either the incident or the investigation into the conduct of the officers.

City officials twice denied the newspaper's requests for the video, saying it would take a court order to get a copy.

Public access to police videos has become an issue in the state, most recently in December when Owasso officials provided the police officer lapel camera video and audio materials sought by the family of a Tulsa man who had died in the Tulsa County jail. But the family had to file an Open Records Act lawsuit before city officials would release the material.

It also took an Open Records Act lawsuit for Catoosa officials to agree in June that police audio and video recordings were public under the Open Records Act.

But in August, a Rogers County judge ruled that police dash-cam video was not a public record. Requesters could ask a court to find that the release of a particular recording would serve a public interest that outweighed the reason for denial, the judge said.

In the Bartlesville lawsuit, the newspaper argues the "public’s interest substantially outweighs any conceivable reason the defendants may have to deny access," explaining,

The public maintains a compelling interest in records of public bodies that disclose whether the public body and its employees are ‘honestly, faithfully and competently performing their duties’ and unless the records are confidential by law, the records must be made available to the citizens.

The newspaper also contends that "since the videotape contains facts concerning the arrest of public servants, the videotape must be produced."

That argument seems supported by a 2004 state Supreme Court ruling that DPS 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 held that 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. [The plaintiff] 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."

In contrast, the Rogers County judge said the Supreme Court case dealt "with what amounts to a transcript of a public hearing" while the dash-cam recording was a "direct piece of evidence."

In other words, the Supreme Court had interpreted the Open Records Act as requiring certain information in the hands of law enforcement to be made public. The Rogers County judge, however, read the statute as listing documents that must be public and dash-cam recordings are not specified. (See OKLA. STAT. tit. 51, § 24A.8(1-8))

In Bartlesville, the newspaper also argues that city officials don't have a legitimate reason for withholding the video, in part because any claim of confidentiality was waived when the video was shown to third parties.

The newspaper is being represented by James Elias of Brewer, Worten, Robinett law firm.


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.

Update: Owasso city manager says public interest in releasing lapel camera video of police lieutenant using excessive force doesn't outweigh protecting his right to appeal firing

Owasso City Manager Rodney J. Ray this week refused local newspapers' requests for a copy of lapel camera video showing a police lieutenant using excessive force for which he was fired.

Arrest videos are not included in the eight categories of law enforcement records that must be released under the state Open Record Act, Ray said in an email Tuesday to the Owasso Reporter and Tulsa World. (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))

Former police Lt. Michael Denton was fired Nov. 4 based on an official determination that he had used excessive force in the June 30 arrest of a Collinsville man.

Police Chief Dan Yancey said a police officer lapel camera captured video that was useful in the investigation of the complaint against Denton.

Ray, in denying the newspapers' Open Records Act request for the video, said Denton is "entitled under both local and state law to appeal his termination to the City of Owasso's Personnel Board and to also seek binding arbitration."

"After consideration of a number of factors including rights of arbitration and appeal guaranteed by law to the employee, the City of Owasso has determined that disclosure of the arrest video is not appropriate and does not believe the public interest outweighs the reasons for denial of this request," Ray said. "Therefore, requests for release of [the] arrest video must be declined."

Denton's attorney has said his client did not use excessive force and his firing was unjustified. Denton has initiated a grievance through the Fraternal Order of Police, the Owasso Reporter said Nov. 10.

But Ray didn't explain how public disclosure of the video would jeopardize Denton's rights of arbitration and appeal. Wouldn't the video be introduced as evidence in such proceedings? Wouldn't those officials make a decision based on evidence, not on public opinion? Will the video be released once the arbitration is completed?

As for whether the video should be considered a law enforcement record that must be disclosed, Ray's reasoning follows a Rogers County judge's ruling in August.

Associate District Judge Sheila A. Condren held that the Claremore Police Department's dash-cam recordings are not public records under the state Open Records Act.

She 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.

However, 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 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 held that 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."

The Owasso lapel camera video certainly contains facts concerning the arrest of the Collinsville man in which the excessive force occurred.

Other local law enforcement agencies typically release such recordings. In June, for example, Catoosa officials agreed to release that police department's audio and video recordings. In August, the Oklahoma County sheriff released the dash cam video of a head-on collision in which a deputy was injured.

The public certainly has an interest in seeing how those entrusted with enforcing our laws are doing their jobs.

State legislators should resolve this issue by updating our Open Records Act to explicitly defining audio and video recordings of arrests as law enforcement records that must be disclosed along with incident reports and other information related to 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.

Rogers County judge rules police dash-cam video not public record under Open Records Act

The Claremore Police Department's dash-cam recordings are not public records under the state Open Records Act, a Rogers County judge ruled Tuesday.

But requesters may ask a court to find that the release of a particular recording would serve a public interest that outweighs the reason for denial, noted Associate District Judge Sheila A. Condren.

Two attorneys who specialize in drunken-driving cases -- Stephen G. Fabian Jr. of Oklahoma City and Josh D. Lee of Ward & Lee -- sued Claremore and Catoosa in June for access to their police departments' dash-cam recordings.

Condren's ruling in favor of Claremore was a surprise given that the city of Catoosa in June agreed to release its police department's audio and video recordings and because local law enforcement agencies typically release such recordings.

For example, the Oklahoma County sheriff last week released the dash cam video of a head-on collision in which a deputy was injured.

Condren's ruling contradicted an Oklahoma County district judge's 2005 ruling that favored Fabian by barring "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.)

Her ruling also seems at odds with a 2004 state Supreme Court ruling also in favor of Fabian. The court ruled that DPS 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 held that 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."

The Claremore police department's dash-cam recordings certainly contain facts concerning arrests.

Even Condren noted that the Claremore Police Department's dash-cam audio and video was "the only recording possessed by CPD of Plaintiff's client regarding the DUI stop and arrest."

But Condren said the Supreme Court case dealt "with what amounts to a transcript of a public hearing."

"In contrast, the 'dash cam' recording is a direct piece of evidence," she said. "As a result, the Court finds the Fabian case distinguishable from the facts presented at bar, and finds the 'dash cam' recording is not a public record pursuant to Title 51 O.S. § 24A.8 which is subject to public inspection."

The Supreme Court had interpreted the Open Records Act as requiring certain information in the hands of law enforcement to be made public.

Condren, however, read the statute as listing documents that must be public. And dash-cam recordings are not specified. (See OKLA. STAT. tit. 51, § 24A.8(1-8))

Condren's ruling is a blow to the public's need to know in Oklahoma. Other local law enforcement agencies are likely to cite it as a reason for not releasing their dash-cam videos.

But Fabian and Lee aren't likely to give up in this case, so we can hope that an appellate court will put dash-cam recordings firmly back in the realm of public information.


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.

Catoosa to release police audio, video recordings

The city of Catoosa will release its police department's audio and video recordings, according to court documents.

A Vinita attorney who specializes in drunken-driving cases sued Catoosa and Claremore for the records in May.

A hearing in the Claremore case has been set for Aug. 1.

On Wednesday, however, Catoosa officials agreed that the recordings, "to the extent they exist, are subject to the Open Records Act."

They agreed to provide the records directly to the plaintiff, Josh D. Lee of Ward & Lee, rather than to the district attorney for release.

Lee agreed not to seek criminal sanctions against the city officials, who in turn agreed to pay $3,500 in attorney fees and costs to Lee.

Because Catoosa officials were stubborn and wrong, taxpayers have to pony up $3,500.

What will Claremore taxpayers have to pay?

Claremore officials said in a court filing that the city police patrol cars have video cameras but the videos can't be produced because of significant issues with the Police Department's computer system, according to the Tulsa World.

Sounds like a story by itself.


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.

Catoosa, Claremore sued for police audio, video recordings

A Vinita attorney is asking a Rogers County judge to force Catoosa and Claremore city officials to make public their police departments' audio and video recordings.

Josh D. Lee of Ward & Lee, which specializes in drunken-driving cases, filed the lawsuits on Tuesday.

A hearing before Associate District Judge Sheila A. Condren has been scheduled for June 22.

Lee's co-counsel is Stephen G. Fabian Jr. of Oklahoma City.

Fabian, who also specializes in DUI cases, successfully sued the state Department of Public Safety in 2005 after the Oklahoma Highway Patrol began refusing to release videotapes of traffic arrests.

"We continue to find that many officers make up evidence and exaggerate their testimony about the events. These tapes are extremely important to a citizen who is wrongly accused," Fabian told The Oklahoman at the time.

Fabian had used the Open Records Act to gather hundreds of such videotapes from OHP and police departments.

However, state legislators curtailed public access to DPS's audio and video recordings in May 2005 after an Oklahoma County judge ruled in Fabian's favor against DPS.


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.

Terrill bill exempts public employee ID. numbers, birth dates from Open Records Act, restricts access to OHP dash cam recordings when most needed, allows DPS to charge more for records

Government employees' identification numbers and birth dates would be exempted from the state Open Records Act, under a bill filed by Rep. Randy Terrill, R-Moore.

Terrill failed to close off the information last legislative session.

His legislation this year, House Bill 2097, includes an emergency clause, meaning that it would take effect immediately after being signed by the governor. Getting the bill signed by Gov. Mary Fallin, however, could be another hurdle for Terrill.

As a gubernatorial candidate last spring, Fallin said she would veto legislation exempting state and local government employees' birth dates from personnel files.

The Republican also signed FOI Oklahoma's Open Government Pledge in which she promised "to support at every opportunity the public policy of the State of Oklahoma that the people are vested with the inherent right to know and be fully informed about their government so that they can efficiently and intelligently exercise their inherent political power."

Exempting government employees' birth dates and identification numbers would severely hamper the ability of Oklahomans to know and be fully informed about their government. The public would find it virtually impossible to determine if government employees have committed crimes, evaded paying taxes, filed for bankruptcy or made political contributions. The public also would find it virtually impossible to track workers across government jobs.

Terrill's attempt to exempt the information last session became intertwined with legislation originally intended to restore public access to the dash cam videos of Oklahoma Highway Patrol troopers. So it has again.

HB 2097 also keeps OHP recordings closed during "an ongoing criminal or internal investigation to which the video or audio recording is relevant."

It also would require the Department of Public Safety to censor "all content which depicts, expressly or implicitly, the death of any person."

The bill also would allow DPS to charge $1 for the first page of a record and 25 cents for subsequent pages of a report. It sets the fee for copies of DPS videos and still images at $50.

In addition to Terrill's bill, access to the birth dates and employee identification numbers is being fought over in the courts.

In December 2009, then-Attorney General Drew Edmondson issued a formal opinion that government employees' birth dates in their personnel files are presumed open. Officials may refuse to release the information only if they determine that disclosing the birth date would constitute an “unwarranted invasion of privacy” that outweighs the public interest in disclosure, Edmondson said. (2009 OK AG 33, ¶ 11)

Edmondson said public bodies must decide each case individually and may not enact policies blocking access to all employee dates of birth.

Last spring, the Oklahoma Public Employees Association filed a lawsuit seeking to stop the state Office of Personnel Management from releasing state workers' birth dates to The Oklahoman.

Oklahoma County Judge Bryan C. Dixon allowed The Oklahoman to intervene as a defendant and FOI Oklahoma, Tulsa World, KWTV, KOTV, the Oklahoma Press Association and the Reporters Committee for Freedom of the Press to file briefs in support of the public's right to the information.

Dixon also granted requests by the Oklahoma State Troopers Association and the Oklahoma Department of Public Safety to join with the Oklahoma Public Employees Association.

In late September, Dixon agreed with the balancing approach set forth in Edmondson’s opinion. However, Dixon said, in effect, that state employees were not entitled to individually challenge the disclosure of their birth dates by their state agencies. (Okla. Pub. Employees Ass’n v. Oklahoma Office of Pers. Mgmt., No. CJ-2010-2623 (Okla. Co. Dist. Ct.) (Sept. 21, 2010))

“The employing agencies shall not give notice or conduct a hearing as to individual employees on the issue of whether this is an unwarranted invasion of personal privacy,” Dixon said.

He also ruled that employee identification numbers were not subject to disclosure.

In October, the employees association and the newspapers appealed Dixon's ruling to the state Supreme Court.


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

Bill would hide birth dates of public employees while state sells same information for everyone else

While HB 3382 would conceal public employees' birth dates in their personnel records, the state Department of Public Safety continues to sell the birth dates for millions of regular Oklahomans from other records, the Tulsa World notes today.

The House vote on HB 3382 was delayed from Friday to Monday.

The bill would also would allow DPS to keep OHP dash cam recordings secret when they are most important and to charge $50 for copies of the recordings and for photographs, the FOI Oklahoma Blog pointed out last week.

The language restricting access to the birth dates of public employees was added to HB 3382 last week in the the Senate General Conference Committee on Appropriations

Rep. Randy Terrill's original bill on dates of birth had died in the House last month after Rep. Lucky Lamons, D-Tulsa, added an amendment requiring the state Legislature to follow the Open Records Act. Representatives didn't want to vote on that issue.

Legislators have long used conference committee reports to make last-minute changes to bills that then can be quickly ushered onto the floor of the House and Senate for a final vote, Sean Murphy of the AP notes in an article published statewide today.

Some lawmakers say it allows for last-minute shenanigans as members or lobbyists bypass the traditional vetting process and sneak controversial proposals into the statutes in the waning days of the legislative session, Murphy wrote.

Sound familiar?

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

Senate revives bill closing public access to gov't workers' DOBs, employee ID. numbers; Sets $50 fee for copies of DPS recordings, photos

Legislative slight of hand has resurrected an attempt to restrict access to the birth dates of Oklahoma's government employees and to their employee identification numbers.

The language was added to a bill originally intended to open access to the dash cam videos of the Oklahoma Highway Patrol.

The original bill on dates of birth had failed to make it out of the House by a deadline last month after Rep. Lucky Lamons, D-Tulsa, added an amendment requiring the state Legislature to follow the Open Records Act. Fellow lawmakers didn't want to vote on that issue.

But Mark Thomas of the Oklahoma Press Association warned that the language on birth dates in personnel files might be added to another bill.

Sure enough, that's what happened. The restriction was added to HB 3382.

On Wednesday, the Senate General Conference Committee on Appropriations approved HB 3382, which heads to the House, the Tulsa World reported today.

HB 3382 was originally intended to make public once again recordings by the Oklahoma Highway Patrol.

The state Department of Public Safety’s audio and video recordings were public records until legislators exempted them in May 2005. (OKLA. STAT. tit. 51, § 24A.3(1)(h)(3))

Previous postings on this blog have further explained the history of that legislation: Oklahoma Highway Patrol dash cam videos should be public; OHP releases dashboard camera video; Are Oklahoma Highway Patrol dashboard camera videos a public record?

Now, the public is faced with regaining access to OHP videos or losing access to needed information about its employees.

Thomas told the Tulsa World that the OPA is recommending that HB 3382 be killed.

"The public will just have to live without having access to the dash cam recordings of their state troopers," he said.

Given HB 3382's exemptions and other flaws, that seems best.

The bill would keep recordings closed during "an ongoing criminal or internal investigation to which the video or audio recording is relevant."

It also would require DPS to censor "all content which depicts, expressly or implicitly, the death of any person."

The bill also would allow DPS to charge $1 for the first page of a record and 25 cents for subsequent pages of a report. It sets the fee for copies of DPS videos and still images at $50.

State law already already exempts public employees' Social Security numbers, home addresses and telephone numbers.

But HB 3382, revised by Rep. Randy Terrill, R-Moore, and Sen. Anthony Sykes, R-Moore, would make it virtually impossible to determine if government employees have committed crimes, evaded paying taxes, filed for bankruptcy or made political contributions.

Eliminating access to the employee identification numbers would make it virtually impossible to track workers across government jobs.

The Oklahoma Public Employees Association and Oklahoma Troopers Association will get want they want either way: No public access to the video of their actions on patrol, or no way for the public to know about its own employees.

The public, on the other hand, will be the big loser this legislative session.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

Bill would make OHP dash cam videos public records

A bill to remove Oklahoma Highway Patrol dash cam videos from the list of records exempted under the state Open Records Act was filed Monday by state Sen. Jim Wilson.

The Tahlequah Democrat said the legislation is in response to “controversial incidents in the state involving the suggestion of officers abusing their power.”

“Our public safety officers are public servants who work at the will of the public, so why shouldn’t the public have access to video of them doing their jobs? It seems to me that releasing these digital records will help dispel the suspicion that they have something to hide,” said Wilson in a press release Monday.

“Unfortunately, we’ve had incidents where officers have abused their power while on duty. There have also been instances where the media has exaggerated or provided inaccurate information about a case because they didn’t have the video and, therefore, didn’t have all the facts,” Wilson said.

The state Department of Public Safety’s audio and video recordings were public records until legislators exempted them in May 2005. (OKLA. STAT. tit. 51, § 24A.3(1)(h)(3))

Previous postings on this blog have further explained the history of that legislation: Oklahoma Highway Patrol dash cam videos should be public; OHP releases dashboard camera video; Are Oklahoma Highway Patrol dashboard camera videos a public record?

Wilson’s legislation, SB 1252, would make the dashboard camera videos public once again.

In explaining why the media and general public should have access to the videos, Wilson noted altercations involving Oklahoma Highway Patrolman Daniel Martin.

Wilson added, “Transparency in government offers the public performance measures and accountability which can be monitored and reported by the media.”

In June, this blog called on legislators to close the exemption and undo the damage they did in 2005.

Let your state legislators know that you support SB 1252 and that they should restore the public's right of access to these important government records.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

OHP slow to release incident report of a traffic stop in which troopers are accused of behaving improperly

The Tulsa World requested on Monday but had not received by late Thursday the incident report dealing with a weekend arrest that led to two state troopers being placed on paid administrative leave, the newspaper reported today.

The newspaper also hadn't received requested copies of the complaint filed against the troopers and the videotapes taken from the dashboard cameras on the troopers' cars.

Police incident reports are public information under the state Open Records Act. (OKLA. STAT. tit. 51, § 24A.8)

The Tulsa World reported having being told by Oklahoma Highway Patrol Capt. Chris West that the incident report and complaint record might be released Thursday. They weren't.

The good news: West said OHP will release copies of the videotape to reporters when investigators are through with them. Thanks to state legislators, OHP dashcam videos have been exempted from the state Open Records Act since 2005.

Access to OHP dashcam videos became news in June after a scuffle between a trooper and a Creek Nation paramedic. After repeatedly refusing to do so, OHP officials released the video, saying "it was in the best interest of the public" to do so. By that time, a cell phone video of the incident had been posted on YouTube.

The OHP trooper involved in that scuffle is one of the two troopers placed on administrative leave pending an internal affairs probe into the arrest on Saturday in Holdenville.


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

Oklahoma Highway Patrol dash-cam videos should be public

More than $1.4 million in Oklahoma taxpayers' money has been spent outfitting the Highway Patrol with state-of-the-art digital dash-cams in the past year but keeps such videos secret unlike most other states in the region, The Oklahoman and Tulsa World reported this week.

As noted in earlier posting by this blog, legislators closed access to the videos in 2005 at the request of the OHP and Department of Public Safety.

In Sunday's Tulsa World, OHP spokesman Capt. Chris West said the agency requested the recordings be closed to the public largely out of concerns for both trooper safety and the privacy of residents.

"I can assure you it's not about secrecy; it's confidentiality," West said.

Then why are such videos public elsewhere in the country?

There is a clear, legitimate and compelling public interest in making such videos open for public inspection. Access to police dash-cam videos in other states have revealed abusive behavior by law enforcement agents and also exonerated officers of such claims.

In Oklahoma, DPS officials release the videos when it suits them.

West told The Oklahoman that the only other time he could recall OHP voluntarily releasing video was in the 2003 killing of Trooper Nikky Green in Cotton County.

"In our opinion, that was night and day,” West said. "We were trying to catch a cop killer.”

But DPS recently denied a request by The Oklahoman to review video footage of a November 2008 incident in Henryetta where a trooper faces a misdemeanor assault and battery charge in the alleged beating of a handcuffed female suspect.

DPS officials can choose which videos it releases because the state statute limiting public access says the department "may" keep them secret.

Oklahomans rightfully should expect state legislators next session to undo the damage they did to the public's right to know in 2005. Close the exemption.

If legislators won't do it, then let's hope the next governor will order his Department of Public Safety to make all the videos public as a matter of routine.

Let's not forget that the DPS works for the governor and the governor works for us.

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