House committee passes bill to gut Oklahoma Open Records Act

Fees for public records would be significantly expanded and 10 exemptions would be added to the Oklahoma Open Records Act under a bill approved Thursday by the House Public Safety Committee. Government officials could even refuse records requests that they considered an "excessive disruption of the essential functions of the public body," under the bill.

Committee Chairman Mike Christian put forth an amended HB 1361 that kept only the original effective date of next Nov. 1.

(Yes, the same Oklahoma City Republican who was caught up in the political bribery investigation and subsequent convictions of former Rep. Randy Terrill and former Sen. Debbe Leftwich; who was awarded $51,300 in workers' compensation benefits for neck and back injuries suffered while driving to the Capitol; and who wanted to impeach five state Supreme Court justices who had voted to issue execution stays for two death row inmates last April.)

The original bill by Rep. Claudia Griffith, D-Norman, was not much better. It would have undone recent progress in open government by removing access to all law enforcement recordings and removing statutory language confirming that law enforcement records must be made available for copying by the public. The latter nonsense was likely spurred by the city of Norman's contention that it didn't have to allow copying of police records prior to the explicit language taking effect Nov. 1.

Christian railroaded his amended version through the committee with no warning to open government advocates and the general public.

An electronic copy of the amended version still wasn't available on the House website as of 5 p.m. Sen. David Holt, R-OKC, provided an electronic copy for this blog.

I am told that a paper copy of the bill was circulated at the committee meeting as it was introduced and only a brief explanation was given. Christian allowed limited questions and no opportunity for debate or extended discussion.

Oklahoma County District Attorney David Prater was called on to explain his support for at least part of the bill. But no one in opposition was called upon or allowed to speak.

Then, I am told, Christian “pressed his motion” to cut off all further questions and discussion about the bill.

Mark Thomas of the Oklahoma Press Association called the whole affair "a very disappointing day for democracy, transparency, and the Open Records Act in general."

Voting for the bill were Christian and fellow Republicans Scott Biggs, Bobby ClevelandDavid Derby, Dennis Johnson, Pat Ownbey, Pam Peterson and Paul Wesselhoft, as well as Democrats Ben Loring and Brian Renegar.

Only Ken Walker, R-Tulsa, voted against the bill. Walker and Holt sponsored last year's bill adding audio and video recordings to the list of records that all law enforcement agencies must make public.

Christian's Bill Would Expand Fees for Public Records

After reviewing Christian's bill, Holt noted that it would significantly expand what taxpayers can be charged for public records in several ways. For example, the bill would remove the requirement that the costs be directly related to the task of copying and searching for records. Governments also would be able to charge:

  • A fee for redacting information.
  • Search and redaction fees if the request causes any “disruption” to the "essential functions of the public body."  The current statute allows search fees only if disruption is “excessive."
  • A "reasonable" fee for "preparing" an electronic copy of law enforcement records.

Even if the request is in the public interest, agencies would be able to charge a search fee if the government official believes the request would "clearly cause excessive disruption of the essential functions of the public body.”

The current Open Records Act prohibits search fees "when the release of records is in the public interest, including, but not limited to, release to the news media, scholars, authors and taxpayers seeking to determine whether those entrusted with the affairs of the government are honestly, faithfully, and competently performing their duties as public servants.”

Christian's Bill Would Gut Access to Law Enforcement Videos

The bill also would limit public access to law enforcement dash-cam and lapel cameras to only recordings of investigative detentions, traffic stops and custodial arrests.

Last year's bill allows law enforcement agencies to “redact or obscure specific portions of the recording” that depict or reveal:

  • The death of a person or a dead body,
  • Any person who is nude,
  • Identify minors under the age of 16, or
  • Law enforcement officers ”who become subject to internal investigation by the law enforcement agency until the law enforcement agency concludes the investigation.” The unedited recording would become available at the end of the “investigation and disciplinary process” or earlier if the “investigation and disciplinary process lasts for an unreasonable amount of time.” The bill doesn’t define “unreasonable amount of time.”

But Christian's bill would amend the statute to allow law enforcement agencies to redact or obscure specific portions involving any minors pursuant to another state statute and add 10 exemptions. Some of which are broad and vague.

  1. “Any information specifically required by law to be kept confidential.”
  2. "Any medical information pertaining to a diagnosis, medication, treatment or transport of a person to any hospital, mental health facility, drug or alcohol treatment facility."
  3. "Any information that could reasonably be expected to constitute an unwarranted invasion of personal privacy including, but not limited to intimate matters, sexual details or domestic violence."
  4. "Any information that might identify an informant for a law enforcement agency where disclosure" of the person's identity "could reasonably be expected to endanger the life or physical safety of the person."
  5. Any information provided by an informant.
  6.  Any information about a person not arrested.
  7. Any information about a suspect not arrested or cited.
  8. Opinions of law enforcement officers about the case.
  9. Gang involvement and affiliations.
  10. "Any information related to the detection, investigation or prosecution of a crime where the release of the information may interfere with the investigation or prosecution of the crime."

You can bet that law enforcement officials would be claiming that last exemption every time they didn't want the public to see what an officer had done wrong or when a public official or a celebrity -- maybe even a highly touted college football freshman -- caught doing something wrong.

Law enforcement officials could have argued for these exemptions last year. Either they didn't or the exemptions were rejected.

Perhaps the egregious portion of the bill expanding the fees for public records is an attempt to force open government advocates into a compromise that accepts the broad, vague exceptions for the law enforcement recordings.

Or maybe Christian just doesn't agree with the basic principles espoused in the Open Records Act:

As the Oklahoma Constitution recognizes and guarantees, all political power is inherent in the people. Thus, it is 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. … The purpose of this act is 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. (Okla. Stat. tit. 51, 24A.2)

But if you do believe that all political power is in the hands of the people, then please ask your state legislators to vote against this anti-freedom of information bill.

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.