A law firm representing law enforcement agencies across the state has issued advice to at least several of the agencies that they have the right to withhold many records from public view, including agency budgets, payroll, contracts and inventory.
An attorney for Oklahoma City-based Collins, Zorn & Wagner cited as a basis for refusing to release such records, as well as case documents, a portion of the state Open Records Act that lists law enforcement records subject to public disclosure. Attorney Ammon Brisolara said if a document is not specifically listed in the statute, the law enforcement agency doesn’t have to make it public.
Collins, Zorn & Wagner has represented dozens of county and city law enforcement agencies in civil litigation and is sometimes used by those agencies to respond to Open Records Act requests. The firm represents counties and county agencies that are members of the Association of County Commissioners of Oklahoma’s Self-Insurance Group.
Brisolara, who recently left the firm, cited that section of the law in counseling at least four agencies that they could withhold records requested by Oklahoma Watch or a private individual. The agencies included the McCurtain County Sheriff’s Office, the McCurtain County Jail Trust, the Choctaw County Sheriff’s Office, and the Haileyville Police Department. It’s unclear whether the law firm has given the same advice to other law enforcement clients.
“If it’s not in that list (in the law), it’s something that would be kept confidential,” Brisolara said in an interview. “But it would depend on who has it. If the record is maintained by the county clerk, then it would be (available from the county clerk).” Even then, the law enforcement agency itself would not have to release the document, he said.
The list of records under the law enforcement section of the Open Records Act is increasingly being cited by agencies to deny requests for public records, said Joey Senat, a journalism professor at Oklahoma State University and a board member of Freedom of Information Oklahoma, which advocates for transparency in government. Oklahoma Watch is a member.
“As a public agency we don’t have to show you anything unless it’s listed in there? That would be nonsense,” Senat said. The list in the statute delineates investigative records that law enforcement agencies must provide. “But it seems it’s being misused more and more frequently. Now we’re getting to a point where a public agency is saying we don’t have to give you our budget,” Senat said.
Court rulings and attorney general opinions have held that several other types of records not included on the list are public records, Senat said. The Open Records Act language allows agencies to make broad interpretations of what can be released.
“This particular statute is the next thing the Legislature needs to fix because of the way it’s written,” Senat said.
The disclosure issue arose in Oklahoma Watch’s reporting of a story about the 2015 death of a Valliant man, Corey Carter, after a struggle with jailers in the McCurtain County Jail. The publication submitted open records requests to the McCurtain County Sheriff’s Office and the McCurtain County Jail Trust.The requests were for a jail video, a Taser video and audio, and jail register documents for the time period leading up to Carter’s death; incident reports or findings related to Carter’s death, and a copy of the McCurtain County Jail’s policies and procedure.
A month passed with no response. Then a McCurtain County commission referred the request to Collins, Zorn & Wagner.
The law firm was also representing McCurtain County in a lawsuit filed in federal court by Carter’s mother, Veda Carter. The suit was settled last month.
The law firm, acting on behalf of the McCurtain County Jail Trust and Sheriff’s Office, released a booking sheet, the jail register and a probable-cause affidavit related to Carter’s arrest. But attorneys refused to turn over other requested records from the sheriff’s office and the jail trust, citing the Open Records Act section.
All of the records listed in that section as public deal with arrests and jail bookings and are the only records law enforcement must allow the public to see, Brisolara said. Releasing the records could present a security threat to the jail or violate individuals’ rights, he said.
Beyond security, Brisolara said the state law also allows law enforcement agencies to withhold administrative records, such as budget documents, purchase and inventory records, contracts and payroll. Such records also aren’t listed in the Open Records Act section. However, other portions of state law state indicate those records and others are public.
In late 2015, then Tulsa County Sheriff Stanley Glanz was charged by the Tulsa County District Attorney’s Office with refusing to perform his official duty, a misdemeanor under the Open Records Act, for refusing to release internal investigation documents related to former Reserve Deputy Robert Bates. Bates was found guilty of second-degree manslaughter in the 2015 shooting death of Eric Harris, who was unarmed. The report was released after the shooting.
In court documents, Glanz’s attorney argued that the internal investigation documents were not open to the public since they were not listed in the law enforcement section of the Open Records Act. In a subsequent filing, the district attorney’s office said while the documents were not listed in that section, that did not exempt the record from being a public document.
Glanz pleaded no contest to the charge in July.
State law also raises the question of whether the McCurtain County Jail Trust is a law enforcement agency.
The state’s public jail trust law states that nothing in that statute grants “any peace-officer power to any public trust or private owner or management entity that by contract operates or manages any jail facility, holding facility or detention center.”
The Jail Trust is not listed as an accredited law enforcement agency that can sponsor officer or jailer training by the Council on Law Enforcement Training and Education, according to CLEET.
Brisolara maintained that the Jail Trust falls under the law enforcement section of the Open Records Act because it has a kind of dual status as a public trust and law enforcement entity.
“You can look at it like that (having dual status),” Brisolara said. “I don’t know if they’re technically a dual status. There are records that are most definitely confidential. Even if they are a public trust, they have a duty not only to the inmates they house over there, but their family and estate, to keep confidential.”
He added he did not know if any court rulings or attorney general opinions granted jail trusts such a dual status.