Posted in Civil Rights on September 12, 2013
The Tulsa World is reporting that the City of Tulsa is now denying requests for audio recordings of 911 calls. According to the World,
Despite having released at least seven 911 recordings since 2010, the city recently denied a Tulsa World request for recordings of two calls made to Tulsa police following a state trooper-involved fatal shooting at a local motel.
The article quotes Assistant City Attorney Shelton Benedict who apparently claimed that “There’s nothing in the (state) Open Records Act that says produce audio.” This interpretation of the Oklahoma Open Records Act appears contrary to the express language of the Act itself.
Title 51, Section 24A.5 states that “all records” of a public body “shall be open to any person for inspection, copying, or mechanical reproduction during regular business hours” unless otherwise provided. In other words, all records, including audio records, are open records unless an exception applies.
Based on the article, it appears the City may be claiming that 911 audio recordings are “law enforcement” records, a limited exemption which protects certain records from disclosure. However, it is not clear precisely how a 911 audio recording constitutes a “law enforcement” record.
911 dispatchers are not “law enforcement.” They do not enforce laws. They are generally not CLEET certified. Citizens call 911 for a host of reasons that do not implicate law enforcement, e.g. for fire or medical. Furthermore, the definition of “law enforcement agency” in the Open Records Act does not include 911 dispatchers, municipalities, or a “Public Safety Communications Center,” which is how the City of Tulsa characterizes the 911 Center.
The City’s position is further complicated by language in the law enforcement exception that prevents agencies from withholding radio logs and “facts concerning an arrest.” In fact, a recent case from the Oklahoma Court of Civil Appeals held that video of arrests taken by an officer’s dash camera would not fall within the exception because it shows “facts concerning an arrest.”
To complicate matters even further, the law enforcement exception is not absolute. According to the plain language of the exception, a law enforcement agency may invoke the exception unless “a court finds that the public interest or the interest of an individual outweighs the reason for denial.” This language suggests that when a law enforcement agency invokes the exception to deny records, it must provide a reason for the denial that outweighs the interest of the public or the individual.
Given the policy change to deny 911 audio recordings where those records were publicly available in the past, one must assume that the City of Tulsa has determined that some harm resulted or may result from openness of the records that is not outweighed by the public interest in the record itself.
As of this post, there is no indication of how Tulsa arrived at that conclusion, or what facts or information supported the policy change.
If you have questions about the Oklahoma Open Records Act, contact the attorneys at Bryan & Terrill Law in Tulsa, (918) 935-2777.