Open records: How do you challenge officials who won't release information?

BY BRYAN DEAN bdean@opubco.com Modified: August 28, 2013 at 3:17 pm •  Published: August 28, 2013
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NewsOK reporter Bryan Dean chatted with readers Wednesday afternoon about open records. Below is an unedited transcript of the chat.

You can join Bryan’s open record Q&A’s on the fourth Wednesday of every month at 2:30 p.m. and submit your questions about legislation and public access in Oklahoma.

Bryan Dean 2:30 p.m. Hi everyone. Look forward to your questions. Let's get started.
Jane D. 2:31 p.m. Hello. Thanks for the talk. What I'd like to know - when it comes to police matters, what kind of information are police obligated to give you? Just curious. There have been a lot of violent crimes in the news lately.
Bryan Dean 2:31 p.m. Police records work a bit different than everything else.
Bryan Dean 2:32 p.m. In most cases, records are presumed open. The way the law reads on law enforcement records, there are specific records they must provide, and they can choose not to release anything else unless a court find public interest outweighs the reason for denial.
Bryan Dean 2:32 p.m. The specific records they have to release include arrestee descriptions, including date of birth, address, race, sex, physical description and occupation...
Bryan Dean 2:33 p.m. Facts concerning the arrest including the name of the arresting officer. A chronological list of all incidents, including initial offense report information...
Bryan Dean 2:33 p.m. Radio logs, conviction information, disposition of warrants, a crime summary and jail registers.
Bryan Dean 2:34 p.m. If they are refusing to release something on that list, they are breaking the law.
Junebug 2:34 p.m. Lawton police have recently changed their policy for records. Instead of printing off loads of reports for the local media, they say they will have the blotter and the journalists will have to go through the records office to get the redacted report. They say it is a cost-saving measure but really? It looks like they are making it harder for the local media. Do you think other police departments will try to do this?
Bryan Dean 2:35 p.m. Technically, if you request to review all daily police reports, they have to comply. I don't know how they think they can get around that.
Bryan Dean 2:35 p.m. If I reviewed those reports, I would put in a standing request to review all police reports. They can't make you pay a copying fee unless you want to take physical copies with you.
Bryan Dean 2:36 p.m. I would hope most police departments would see the value in letting media review the reports every day in a convenient way. I haven't seen a trend against that, thankfully.
Jane D. 2:36 p.m. What's the deal with OSBI? Are there different standards?
Bryan Dean 2:36 p.m. The OSBI thinks so.
Bryan Dean 2:37 p.m. They cite a law that makes most of their investigatory records secret. However, that law specifically refers to lab reports and such. It does not say that initial offense reports would be closed, and I dispute their interpretation that the sort of records every other law enforcement agency has to provide are somehow exempted for OSBI under that law.
Bryan Dean 2:38 p.m. And I expect a court would agree with me, if push came to shove. They claim that they don't have to give arrestee descriptions or the other basic info I mentioned earlier.
Bryan Dean 2:38 p.m. Which means, they could arrest someone and never even tell anyone they had that person in custody or for what crime.
Bryan Dean 2:39 p.m. Sounds an awful lot like some dystopian secret police stuff to me.
Bryan Dean 2:39 p.m. I can't imagine a court would let them get away with that.
David 2:39 p.m. Maybe I'm mistaken, but it seems that Oklahoma leaders refuse to provide a lot of information that should be public record. Legislators are exempt from the public records act, for example. Why don't the news media take agencies and officials to court more often? Are they afraid they will get a bad ruling from a judge? What else can people do to make government more transparent?
Bryan Dean 2:40 p.m. There are two different questions there.
Bryan Dean 2:40 p.m. The first regards the legislature. They specifically exempted themselves from the openness laws (both meetings and records) when they were passed.
Bryan Dean 2:41 p.m. Challenging them on that in court would be futile. They aren't subject to the law. We would need specific legislation to change that.
Bryan Dean 2:41 p.m. Such legislation has come up. It made some progress last session. We will see if it is brought up again. Rep. Jason Murphy and State Sen. David Holt have both pursued this issue.
Bryan Dean 2:42 p.m. The second question you ask is why media don't sue more often.
Bryan Dean 2:42 p.m. You gave one half of the answer. If media companies sue and lose, it creates bad precedent. Leaving some things grey seems to be better than a black and white no.
Bryan Dean 2:43 p.m. Although it seems public officials always use those gray areas to deny, so I'm not sure I buy that argument.
Bryan Dean 2:43 p.m. The second reason is simply cost. Lawsuits are expensive, which is why media companies use litigation as a last resort.
Bryan Dean 2:44 p.m. The records act allows you to recover legal fees if you win a records case, but not for meetings cases. And if you lose, you are stuck with the legal fees.
Babaganouj 2:44 p.m. Couldn't you get your info from the same database as Jailbirds, or whatever that mugshot magazine is they sell at the gas station?
Bryan Dean 2:45 p.m. Generally we do. In fact, some of the jails around the state were tired of giving mugshots to those publications and asked for an attorney general's opinion on the subject.
Bryan Dean 2:45 p.m. The AG ruled mugshots are open and must be provided electronically upon request.
Bryan Dean 2:45 p.m. But we are usually asking for more detail than simply a mug photo.
Bryan Dean 2:46 p.m. That seems to be where some of the conflict arises.
Bill 2:46 p.m. I had a Eureka moment last week when I finally realized that attorneys aren't interested in helping people pursue cases against government for breaking openness laws because attorneys can't make money in these cases. Would laws establishing fines for breaking these laws, and the ability for attorneys to recoup fees, make such pursuit more attractive to the legal profession? Or am I barking up the wrong tree?
Bryan Dean 2:46 p.m. Well, they can make money on those cases.
Bryan Dean 2:47 p.m. As I said, the courts allow a victorious petitioner to recover legal fees in records cases.
Bryan Dean 2:47 p.m. There have been some efforts to entice more attorneys to take that bait. Take on a slam dunk case pro bono and then get the government agency to pay your legal fees when you beat them in court.
Bryan Dean 2:47 p.m. But that is a gamble on the attorney's part. Still, some attorneys have started taking on cases like that.
Brian 2:48 p.m. So, why hasn't a media outlet challenge the OSBI in court. Seems like a wise money investment for a positive long-term solution.
Bryan Dean 2:48 p.m. Well, we need a specific denial to challenge.
Bryan Dean 2:48 p.m. They have released the kind of info other agencies do "voluntarily."
Park 2:49 p.m. Brian, your comment regardnig legal fees is wrong. Section 24A.17 of the ORA provides that a successful plaintiff in an action regarding the ORA "shall be entitled to reasonable attorney fees.
Bryan Dean 2:49 p.m. Yes, that is what I said.
Bryan Dean 2:49 p.m. You can get your attorney's fees in records cases but not under open meeting act lawsuits.
Park 2:50 p.m. The OMA doesn't authorize private civil actions for alleged violations.
Bryan Dean 2:50 p.m. Incorrect.
Bryan Dean 2:50 p.m. Government agencies have tried to argue this, but the courts have recently ruled otherwise.
Bryan Dean 2:51 p.m. You can read about that ruling here...

http://foioklahoma.blogspot.com/2013/07/any-oklahoman-may-sue-to-enforce-open.html
Jane D. 2:51 p.m. So whatever happened to open records regarding our lawmakers. Aren't they held by different standards - that requires them to release very little? Isn't this something rare among all 50 states?
Bryan Dean 2:52 p.m. As I mentioned earlier, this came up in the last legislative session.
Bryan Dean 2:52 p.m. We are one of a handful of states where the legislature is completely exempt from openness laws.
Bryan Dean 2:52 p.m. Some legislators have tried to change this, but it is an uphill climb.
Brian 2:52 p.m. Will getting better/more access to public records always be a problem in Oklahoma or do you see any movement to change laws/procedures?
Bryan Dean 2:53 p.m. It seems to be a bit of a pendulum swinging issue.
Bryan Dean 2:54 p.m. We saw a lot of tightening up after 9/11. But we have also seen a real push of late to make more information available online. Rep. Jason Murphy has been particularly good about pushing these openness issues.
Bryan Dean 2:54 p.m. There will always be an argument to made because openness and privacy sometimes conflict, and openness and security can also conflict.
Bryan Dean 2:54 p.m. So that balance is always going to be an area of struggle.
Jason 2:54 p.m. Bryan, can you provide an update about the Dept. of Tourism's refusal provide the Lake Texoma contract?
Bryan Dean 2:55 p.m. As I understand it, we were able to get some of the information we requested when the company involved in the sale of the property agreed to release it.
Bryan Dean 2:55 p.m. However, the tourism department is still maintaining that a confidentiality clause in the sale contract prevents them from releasing it.
Bryan Dean 2:56 p.m. This is just a patently false claim. You can't put a clause into a contract that violates state law.
Bryan Dean 2:56 p.m. Such contracts are clearly open under the open records act.
Bryan Dean 2:57 p.m. This is an ongoing issue. There have been some calls to file a lawsuit. Others have talked about asking for an attorney general's opinion.
Bryan Dean 2:57 p.m. An AG opinion may be the way to go, as this seems like a slam dunk issue.
Jane D. 2:57 p.m. What are different ways reporters use open records laws?
Bryan Dean 2:58 p.m. That's a really broad question. We use them in many ways. We have, in the past, put a little graphic with each story that is dependent on open records or meetings during sunshine week in the spring.
Bryan Dean 2:59 p.m. It ends up being around half the stories in the newspaper.
Bryan Dean 2:59 p.m. Everything from city council and school board meetings to crime coverage to state programs. Pretty much anything involving the government.
Bryan Dean 2:59 p.m. We routinely use records like meeting agendas and minutes and police reports.
Bryan Dean 3:00 p.m. And then there are the watchdog investigations where we request detailed records that might uncover something big.
Bryan Dean 3:00 p.m. It really permeates everything we do. You can't cover the government without openness laws.
Bryan Dean 3:01 p.m. We actually have really good openness laws.
Bryan Dean 3:01 p.m. Our records and meeting laws are both pretty detailed and thorough.
Bryan Dean 3:01 p.m. The problem we continue to have is enforcement.
Bryan Dean 3:02 p.m. District attorneys are often very reluctant to prosecute violations, even though they are misdemeanors.
Bryan Dean 3:02 p.m. Which leaves the civil lawsuit as the only avenue for enforcement.
Bryan Dean 3:02 p.m. And, as we talked about earlier, lawsuits are time consuming and expensive.
David 3:03 p.m. Not to put you on the spot, but why didn't the Oklahoman, or a group of media outlets and organizations, sue the governor's office over the emails withheld under the executive privilege exemption, which as I understand doesn't exist? If it's fear of setting a bad precedent, remember, at some point, that fear just paralyzes the media forever.
Bryan Dean 3:04 p.m. Filing a lawsuit or not is not my decision, so I can't really answer that question. I don't know what went into that decision-making process. I agree with you that fear of setting bad precedent only goes so far. At this point, if no one challenges her, we are essentially ceding the argument.
Bryan Dean 3:04 p.m. I can only tell you what I have said before, which is that lawsuits are expensive. I also think some folks were waiting to see how much she would actually release.
Bryan Dean 3:04 p.m. The ACLU did sue on this issue, on behalf of a local blog called The Lost Ogle.
Bryan Dean 3:05 p.m. We'll see if that is successful or not.
Bryan Dean 3:05 p.m. In general, I think the media like to resolve these disputes without lawsuits, if we can.
Paul B 3:05 p.m. Which tends to be more open Cities or Towns? For example Berniece or Cushing?
Bryan Dean 3:06 p.m. It all depends on the public officials. Bernice, in particular, has been criticized soundly by the state auditor.
Bryan Dean 3:07 p.m. But I have seen small towns where there are clerks and elected officials who work very hard to follow the law.
Bryan Dean 3:07 p.m. And there are big cities that play games with openness.
Bryan Dean 3:07 p.m. Tulsa, for example, has had some serious openness issues lately. Oklahoma City usually does a pretty good job.
Bryan Dean 3:08 p.m. Big cities have more attorneys and deeper pockets to put up barriers sometimes, if that's the way they want to go.
Bryan Dean 3:08 p.m. The problem you generally see in smaller towns is that fewer people are paying attention.
Bryan Dean 3:09 p.m. Large media outlets don't usually cover those small towns, so they can sometimes get away with more simply because there is no one shining the spotlight on their misdeeds.
Bryan Dean 3:10 p.m. Thank you all for the questions. I think we are going to wrap it up for today. Come back next month and we'll talk about these issues again.

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