Posted in Civil Rights on June 1, 2013
In a 2-1 decision issued on May 31, 2013, a panel of the Oklahoma Court of Civil Appeals has ruled that videos from dash cameras mounted in the patrol cars of police officers are subject to the Oklahoma Open Records Act (the “Act”). See Ward v. Claremore.
More importantly, however, the Court ruled that police and municipalities cannot refuse production of the videos based on the law enforcement exception to the Act. Governmental agencies have long used the law enforcement exception to deny public access to a broad range of material and information kept by the government.
In Ward, the Court of Civil Appeals began its analysis by holding that dash-camera videos constitute a “Record” under the Act. Next, the Court considered whether the law enforcement exception applied to dash-cam videos. The law enforcement exception does not apply to records detailing “[f]acts concerning the arrest, including the cause of arrest.” See 51 O.S. Sec. 24A.8(A)(2). In a prior decision, the Oklahoma Supreme Court concluded that recordings of Implied Consent hearings before the Department of Public Safety in DUI cases are records that contain “facts regarding the arrest.” Accordingly, the Court of Civil Appeals concluded that “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.'”
The City of Claremore also resisted production of the video on grounds that it constituted evidence in an ongoing criminal proceeding. However, the Court of Civil Appeals rejected that contention out-of-hand, stating that City’s argument “is without legal support,” and further noted that no such exception exists within the text of the Open Records Act.
The ruling has broad implications for transparency in law enforcement throughout the state. The ruling would conceivably apply to any audio or video recording of a suspect or arrestee from the point of arrest through the booking process at the jail facility. In other words, the activities of law enforcement will be on open display for praise or critique by the general public. This raises the possibility of a potential backlash by law enforcement as a result of the Court’s ruling.
Law enforcement agencies that prefer to operate in the shadows may view the opinion as a threat. As a consequence, those agencies may decide to abandon the use of audio and video equipment altogether. Even where municipal government compels its police force to use dash-camera videos, that equipment is useless if the police fail or refuse to maintain the equipment or train employees on its proper use.
Resolving this tension generally requires action from elected officials and citizens alike. Elected officials can promote the use of dash cameras by requiring their police force to record and store all interactions as a matter of course for a period of years. A clearly defined policy for the preservation of video should be implemented, along with detailed job duites and responsibilities for maintaining the equipment, perhaps contracting with independent vendors to safely store information off-site.
Law enforcement officials yield extraordinary power, and how that power is used can have ramifications that may follow a citizen for the rest of his life. Given the breadth of this responsibility, law enforcement should welcome transparency if for no other reason than to demonstrate their professionalism and promote public confidence in our police force.
If you have questions about the Oklahoma Open Records Act, or police-citizen encounters, contact the attorneys at Bryan & Terrill Law – 918-935-2777.