FOI Supports NewsOK Appeal

The “libel” that is the basis for this judgment arose from NewsOK’s publication of a registry of sex crime offenders created by the Department of Corrections (DOC). The address shown for one of the sex offender was either in error or out-dated. The person identified in the list no longer resides there. The present resident (though not named in the list) brought suit.

NewsOK, an Oklahoma limited liability company whose members are the Oklahoma Publishing Company and Griffin Television, L.L.C., operates an Internet website. It received the DOC registry electronically and published the registry on the website without editing or other alteration.

One of FOI’s purposes is protecting “the public’s rights to know.” Because this right is threatened by the Creek County judgment, FOI is supporting NewsOK’s appeal. Access to public documents would have little substantive value if members of the public could be sued for mistakes by public officials. The judgment is contrary to the Common Law, constitutional jurisprudence, and State statutory law protecting the accurate re-publication of public documents.

The Plaintiff is opposing FOI’s application to file an amicus brief. If the court grants the FOI’s amicus application, it will be filed when NewsOK’s brief is due which will probably be in May.

Nichols is accused of conspiring with Timothy McVeigh to kill 161 people in the 1995 bombing of the Murrah Federal Building in Oklahoma City. Though he already faces life in prison for convictions in federal court, Oklahoma County prosecutors felt the need to try him again on the state level, partially in hopes of getting Nichols the death penalty and partially as insurance against a successful appeal of his earlier conviction. In fact, if this was any other trial, and if it had been handled better by those voicing opposition, this might have just blown over, but this isn’t just any other trial.

Those who live in and around Oklahoma City feel particularly close to this case, and many still feel reverberations from the bombing. That is one reason, Judge Taylor agreed to move the trial to McAlester, where it was argued, there would be a less biased jury pool. But, by doing so, it also distances the court from those who most want to watch it’s actions and follow the testimony provided. Because of the distance, many won’t be able to attend, as they might if the trial were held in Oklahoma City. But, by local stations broadcasting the testimony and the arguments, there would be no need for anyone to miss out.

One would think that both the prosecution in this case and the defense would be clammering for broadcast coverage, and not for the reason that Assistant District Attorney Sandra Elliott might suggest. In court, she said she went to law school to become a lawyer, not a movie star. But, what she doesn’t realize is that this is not about her, but rather about Terry Nichols and the crimes with which he’s accused.

The district attorney’s office has been under fire repeatedly for spending millions of dollars in a second trial for Nichols, at a time when budgets are tight and little new is expected to come out of it. A recent poll shows a vast majority of Oklahoma Cityans disagree with even holding another trial. One would think, the D.A.’s office would want to prove to all those doubting Thomas's that their investment in this case was money well-spent.

The Nichols camp has repeatedly claimed that their side of the story isn’t getting out and that the media is biased against the defendant. One might think, by allowing broadcast of the trial, the defense would be able to get its points across better than through any other method. For some, the issue involved is whether or not to allow the Nichols trial to become a media circus. It will likely be that, whether there are cameras in the courtroom or not. Reporters will still interview and photograph individuals and authorities concerning the case and there will be plenty of them on hand to take notes and write stories. In fact, there may even be more of them trying to pack into the courtroom than would otherwise be the case, because of the inability to broadcast and share resources.

In recent years, when an Oklahoma trial has been broadcast or taped, judges have limited equipment within the courtroom, to a single, fixed camera that does not have a lighting system, but which is able to pan back and forth to some degree. That camera is a pool camera, shared by many news operations, which then have their own equipment outside the courtroom, in another, more secluded, area. For radio purposes, the audio is usually taken directly from the existing sound system, so there are no additional microphones or distractions in the courtroom. The only difference for those in the court is the knowledge that those outside have the opportunity to hear what they are hearing.

When making their arguments before Judge Taylor, both defense and prosecution attorneys said the media had no right in the courtroom and, it seems, to some degree, Taylor agreed. News people took that as a slap in the face and a threat to open hearings in the future, and have vowed to pursue various options in hopes of overturning the court’s ruling, or if nothing else, preventing similar decisions in the future. FOI Oklahoma is being asked to join a suit in this case…a request that’s currently under consideration.

In this case, the Prosecutors and Defense attorneys teamed up to block us from ensuring Oklahomans have the chance to hear or see what happens in a trial that has cost tax payers millions of dollars.

Because of Oklahoma’s extremely weak rule that allows us into a courtroom, we knew going in that our chances of success were limited. But what makes the decision especially difficult to swallow is the way Prosecutors and defense attorneys argued their objections.

Prosecutor Sandra Elliott missed the entire point of our request by saying, she went to law school to be a lawyer, not a movie star. That isn't the reason we asked for permission to record the trial. We wanted to cover the trial because only radio and television can truly capture the full measure of a trial, especially one this important. We were prepared to record and replay the entire trial as it happened so people could actually hear the evidence for themselves for a change. What makes this even worse, the Court of Criminal appeals in rejecting the original request for recorders and cameras in the courtroom, back in 2000, cited a case as the basis for their decision that was overturned. They ignored another case that made clear there was no inherent threat to a defendants right of due process by allowing cameras and recorders into the proceeding.

The US Supreme Court has already ruled that an outright ban on cameras and recorders in the courtroom is unconstitutional. WE have begun talks that we hope will lead to the State Supreme Court giving the canon on cameras and recorders another look. I don't know what else may be possible here but this situation cannot be allowed to continue as is.

The broadcast and print media are about to get embroiled in something we have waited way too long to deal with. I was part of the team more than two decades ago that sat down to help write the cannons for cameras in the courtroom. Our first test would be the trials of Roger Dale Stafford and a year later Glen Ake. The equipment was large and cumbersome by today's standard. We were embarking on something new and exciting. The world around us got better at it and Oklahoma's laws and guidelines never changed. The O.J. Simpson trial would test everything both the legal profession and the media thought about the idea .But it was an idea who's time had come.

We as an organization have a job for Freedom of Information. I am not yet sure we have a role in this argument. But, I believe that the electronic media has a role in the courtroom. The world has changed since we asked people to listen and learn from trials that only allowed pencil and paper. We must move into a world where people see and listen ....I wish that everything we told people was believed as fact and I wish they would pay attention if we simply stand there and tell them what happened. But that world is gone. If we want to continue to cover trials, and I believe like the legislature an unwatched court system is not a good thing, then we must move to cameras and recorders in the courtroom.

This may not be an issue for F-O-I ... It may simply be an issue for the electronic media and newspapers to take to the courts. But it is an access issue. I cannot do the job the public requests or demands of me these days without the pictures and the audio.

The public has changed and we cannot change them back.. We can simply try to make sure they are told about issues important to them in a way that they will accept or we will continue to be less important to the process. Not my choice but the world I have to live in.

In the coming weeks we will put together a group of reporters and lawyers and engineers that can make a presentation to the court. It will not be necessary for all organizations to participate. We will go forward with that and see if the rest becomes necessary. The best news in all of this is an open debate and discussion and I do love that...

At this point, all bills not clearing committee scrutiny by Thursday, February 19 will not move on to the House or Senate floor. In numeric order, here are a few of the bills that have been introduced and any actions that have been taken to date.

HB 2109 Kirby (D) – Originally the bill would have allowed the State Department of Corrections Board to enter executive session and keep no minutes, and the bill created a misdemeanor and fine, and removal from the board if he or she talked about anything discussed in the executive session. It has now been amended to state the Dept. of Corrections Board may meet in executive session.
HB 2245 Easley (D) – An identity theft bill that would have prohibited any court clerk from putting DOB, SSN, and other information on any court-controlled web site. Rep. Easley withdrew the bill because she understood it would be challenged and she wants to devote her time to winning the senate seat being vacated by her son, Kevin Easley.
HB 2249 Case (R) – The bill relates to allowing treatment centers to transfer juvenile records to other treatment centers when they are transferred into Oklahoma from out of state facilities. This is not a threat to open records. Rep. Case said he would consider amendments that would make prior legislative action regarding records of juveniles that commit felonies more open.
HB 2262 Taylor (D) – The bill tries to simplify fire protection district organizational rules. Taylor has been asked to amend the bill to make sure they are subject to open meeting and open records acts. The bill originally said records “are available to any elector in the district.”
HB 2280 Paulk (D) - This is the Homeland Security Act bill touching on several areas of setting up and funding the Office of Homeland Security. The author struck the title on the bill because it gives the Office of Homeland Security a complete exemption from the open meeting and records act, and the Administrative Procedures Act. The author wants to work on new language that gives Homeland Security some ability to keep sensitive disaster plans confidential, but the exclusions presented are too broad and unacceptable.
HB 2396 Dorman (D) and Harrison (D) – There are several bills attempting to close the employer’s first notice of injury reports, either permanently or for a certain time period. These bills are intended to keep attorneys from trolling through the reports and developing mailing lists of injured workers, or employers who need legal representation. This bill is currently in the House Rules Committee and may not be heard.
HB 2608 Peterson (R) – The bill would allow the State Board of Veterinary Medical Examiners to keep investigatory materials confidential, as well as test questions and answers developed for veterinarians. All disciplinary actions would be public record, as well as the fact that a certain vet had been investigated and no wrongdoing was found.
HB 2654 Reynolds (R) - This bill deletes the “prompt and reasonable” language from the open records act and replaces it with language that requires public bodies to respond within thirty days of the request for information. This bill is fraught with difficulties and should not advance in the House.
HB 2655 Reynolds (R) - This bill amends the open records act to say public bodies must provide records to the requestor in the same medium the requestor was originally allowed to view the record. There is merit in this concept but it may not clear the hurdle of the Rules Committee agenda.
HB 2671 Dorman (D) - The bill expands the open meeting notice requirement on regular meetings. Citizens can pay to have special meeting notices mailed to them; this bill would allow for the same pay-for-notification provisions for regular meetings. It makes no changes to posting of agendas.
HB 2672 Dorman (D) - The bill amends the open records act to require institutions of higher education to have a “negative check-off” option on student records. At the high school and elementary level, parents have to notify the school if they want to be left out of the student directory. This bill would not change the high school, secondary, or elementary system, but would set up an opposite system for higher ed. If this becomes law, expect those other school systems to ask for the same negative check-off option.
SB 1104 Capps (D) - The bill would allow the media into the election voting area to take photographs, but they could not take pictures of people actually voting. It also was amended to restrict the time in the election area to five minutes. Currently, the common practice of photographers entering the voting area to take pictures of voters is against the law. This would slightly ease those restrictions.
SB 1108 Helton (D) - The bill amends the open records act to allow public bodies that contract with public utilities to collect their bills (“let local people pay at city hall”) to keep the records of those billings confidential. Under current law, municipally owned power companies must reveal the names, addresses, rate of pay, and other “non financial” information. This bill would not close the contract the city has with the power company, but you could not find out who was paying their electric bill locally when the city was collecting for a public utility. Most cities in the state have stopped this practice because it is too cumbersome and not always profitable.
SB 1322 Johnson (D) - This bill would allow the Legislative Service Bureau to meet by teleconference when the legislature is not in session, and requires that LSB meet in accordance to teleconferencing rules outlined in the open meeting act.
SB 1469 Littlefield (D) - Senator Easley is leaving the Senate to take the reins as executive director of the Grand River Dam Authority (GRDA). Sen. Littlefield is lukewarm about taking over this Easley bill that would allow the GRDA board to go into executive session and excuse them from taking minutes, and requires that nothing said in the executive session could ever be disclosed.

Want to know the salary and benefits package of Kansas University Athletic Director Lew Perkins and his top staff?
Want information about the Lawrence Police Department's high-speed chase of a driver who collided with and killed another motorist?

Good luck.
In both instances, KU and the Police Department have cited exemptions to the Kansas Open Records Act to keep such information secret.

Many times each year, the media and ordinary people alike try to pry information out of the government and are rebuffed because of the numerous exemptions to the Kansas Open Records Act.

The 1984 law makes public records open for inspection by anyone. The law states it "shall be liberally construed" to ensure that public business is conducted in the open, but 46 exemptions have been added through the years. In addition, sprinkled throughout other state laws are more than 300 other provisions that keep information secret. Now, all those record-closing statutes are going under the legislative microscope.

"We are hopefully going to get a lot of junk out of the laws and replace it with common sense," said Randy Brown, a former Kansas newsman, now a member of the board of the Kansas Sunshine Coalition for Open Government.

"Open government is the only way that citizens can know if their government is serving them well and properly. It is the only real check on the powers of law enforcement and the courts, the city councils, county commissions, school boards and the like," Brown said. In 1999, a group of Kansas newspapers, including the Journal-World, tested the Kansas Open Records Act by requesting common public documents from government agencies in each of the state's 105 counties. Compliance with the law was irregular, dozens of requests were denied and some records were released only after illegal questioning from government officials. In one case, the person requesting a public record was escorted to the county line by sheriff's officers. The project prompted a law approved in 2000 that said all exceptions to public disclosure would expire July 1, 2005, unless the Legislature acted to reinstate the exceptions.

The review process will get under way this session -- which begins Monday -- before the House Local Government Committee, chaired by state Rep. Jene Vickrey, a Louisburg Republican.

"I certainly won't back down from doing my job correctly," Vickrey said. "We will be making decisions that will affect everyone's life in the state, and we are going to do that correctly." Officials say the review probably will take all of this session and continue through the 2005 legislative session.

Brown said some of the most troublesome blackouts of information concern the Legislature itself. Legislative records dealing with proposed legislation and research for legislators are off-limits to public viewing.

Vickrey said he agreed that some exceptions from public disclosure seemed too broadly written. "I would want better exemptions that hit the target better. I would hate to think we would do all this work and not improve the law."

WASHINGTON, Feb. 11 - The Justice Department is demanding that at least six hospitals in New York City, Philadelphia and elsewhere turn over hundreds of patient medical records on certain abortions performed there.

Lawyers for the department say they need the records to defend a new law that prohibits what opponents call partial-birth abortions. A group of doctors at hospitals nationwide have challenged the law, enacted last November, arguing that it bars them from performing medically needed abortions.

The department wants to examine the medical histories for what could amount to dozens of the doctors' patients in the last three years to determine, in part, whether the procedure, known medically as intact dilation and extraction, was in fact medically necessary, government lawyers said.

But hospital administrators are balking because they say the highly unusual demand would violate the privacy rights of their patients, and the standoff has resulted in clashing interpretations from federal judges in recent days about whether the Justice Department has a right to see the files.

A woman's relationship with her doctor and her decision on whether to get an abortion "are issues indisputably of the most sensitive stripe," and they should remain confidential "without the fear of public disclosure," the judge, Charles P. Kocoras, wrote in a decision first reported by Crain's business journal in Chicago.

The Justice Department is considering an appeal.

The department's demands for the records are still pending against Columbia Presbyterian Medical Center, Weill Cornell Medical Center and St. Luke's-Roosevelt Hospital Center, all in New York City; the University of Michigan medical center in Ann Arbor; and Hahnemann University Hospital in Philadelphia. At least one undisclosed hospital also appears to have been served with a subpoena, officials said.

Judge Richard Conway Casey of Federal District Court in Manhattan, who issued an order in December enforcing the government subpoenas, said at a hearing last week that the department had good reason to want the records, and he threatened to sanction the opposing lawyers in the case unless the hospitals turned them over.

"I will not let the doctors hide behind the shield of the hospital," Judge Casey said, according to a transcript of the hearing. "Is that clear? I am fed up with stalls and delays."

Sheila M. Gowan, a Justice Department lawyer, told Judge Casey that the demand for the records was intended in part to find out whether the doctors now suing the government had actually performed procedures prohibited under the new law, and whether the procedures were medically necessary "or if it was just the doctor's preference to perform the procedure."

Citing federal case law, the department said in a brief that "there is no federal common law" protecting physician-patient privilege. In light of "modern medical practice" and the growth of third-party insurers, it said, "individuals no longer possess a reasonable expectation that their histories will remain completely confidential."

A lawyer for the National Abortion Federation, a plaintiff in the lawsuit before Judge Casey, told him that, over all, "many hundreds" of medical documents would be covered. The federation is a trade organization that represents abortion providers.

Advocates for abortion rights said they were particularly troubled by the subpoenas because of Attorney General John Ashcroft's history as an outspoken opponent of abortion in his days in the Senate.

"This notion of John Ashcroft poring over medical records in a fairly unprecedented type of fishing expedition is exactly the type of privacy invasion that worries people," said David Seldin, a spokesman for Naral Pro-Choice America, an abortion rights organization. "The government just shouldn't be involving itself in private medical decisions and second-guessing doctors' ability to advise their patients properly."

Dateline: 2004 A federal judge has ordered Drake University to hand over information related to an antiwar meeting held in November on the campus, a move that representatives of the American Civil Liberties Union and the National Lawyers Guild have described as extremely unusual and troubling.

In addition, four people who attended the meeting, held in the student-union building of the private institution, in Des Moines, have been ordered to appear before a federal grand jury on Tuesday. The antiwar meeting, which was sponsored by the Drake chapter of the National Lawyers Guild, was followed the next day by a rally at the Iowa National Guard headquarters, during which 12 protesters were arrested.

Brian Terrell, executive director of the Catholic Peace Ministry, a local organization in Des Moines, was among those who received a subpoena. "I think it has more to do with intimidation than actually trying to get information," Mr. Terrell said. The subpoena was served by a local sheriff's deputy who identified himself as a member of the FBI's Joint Terrorism Task Force, according to Mr. Terrell, who was not arrested at the rally.

Ben Stone, the executive director of the Iowa chapter of the American Civil Liberties Union, said he could not remember another case in which a college had been ordered to provide information about a meeting on its campus. "It does strike us as extremely unusual and we're very anxious to see where this goes," he said.

Mr. Stone is representing one of the protesters who received a subpoena. "Those of us who have seen these demonstrations with these people identify them as career pacifists, and so we're quite perplexed by this," he said.

It has been reported that all Drake University employees have been ordered by the federal judge not to speak publicly about the matter. A spokeswoman for the university, Lisa Lacher, said over the weekend that she could not comment. When asked if employees had been ordered not to speak, she responded: "I can't say."

The subpoenas and the gag order are "outrageous," according to Michael Avery, president of the National Lawyers Guild and an associate professor of constitutional law at Suffolk University Law School, in Boston. "Any organization that's operating within the law and is a political organization, the government has no business taking records relating to their internal meetings or their officers or members," he said. "It's very scary to me that the federal officials in Iowa think they're entitled to do something like this."

Mr. Avery said he wasn't sure whether any students had been ordered to testify or what information, if any, has been turned over. "A federal grand jury ought to be investigating crimes and not the protected first amendment activities of students," he said.

Federal officials have refused to discuss the matter or to confirm that there is an investigation.

Residents of northwest Oklahoma made it plain they want to abide by the Open Meeting/Open Records Act. Many simply hadn't understood its requirements or penalties for noncompliance.

Sixty-five people, some traveling as far as 150 miles, registered at the Alva Open Meeting/Open Records workshop sponsored by FOI, Inc., the Attorney General's Office and the Oklahoma Press Association.

For many, this was their first instruction on the Act since their election or appointment to a public body. Mayors, school administrators, school board members, city council members, county commissioners, members of boards of public bodies and "a concerned citizen" listened intently as Attorney General Drew Edmondson and Assistant Attorney General Gay Tudor explained the law's provisions and penalties.

"I liked the way they were so direct," Woods County Clerk Pam Small said. "A lot of people didn't know about some provisions of the law like the 10-day notice required for changing the date of a regular meeting."

"It reinforced a lot of information in articles written before in the local newspaper," Small said. "It was very plain. There were no questions after she (Tudor) finished explaining it. I thought it was great."

Alva School Board President Aleta Kohlrus who attended this type of session for the first time said, "I just want to thank Attorney General Edmondson and Gay Tudor very much for coming. It was very informative." "I appreciated our being able to ask those questions first hand," Kohlrus said. "That is such an important area."

Assistant District Attorney Allan Mitchell, a strong supporter of The Act in northwest Oklahoma said, "It was excellent. I think it helped clarify the Act for people volunteering their time on public boards and bodies."

"I feel it was very valuable," Mitchell concluded. "We really appreciate the cooperation of the Attorney General's staff, OPA's Mark Thomas and FOI, Inc. in scheduling a workshop in Alva," Alva Review-Courier Assignment Editor and FOI Board Member Helen Barrett said. "They reinforced the education we’ve repeatedly tried to present on this statute in our newspaper."

Barrett said. "Our local officials appreciated receiving copies of the latest edition of the yellow book."

Alva Review-Courier Publisher Lynn Martin was especially pleased with attendance at the workshop. "I had attended other similar workshops around the state in years past and was tickled to death about our attendance," Martin said. "It seemed like it was about 300 percent more than at some of the others I've attended."

"Gay Tudor was exactly correct when she said the "good guys" -- elected officials -- attended the meeting, the guys who really needed it didn't," Martin said.