A police dash cam video of a DUI arrest contains facts concerning the arrest and therefore is public under the state Open Records Act, a three-judge panel of the Oklahoma Court of Civil Appeals ruled 2-1 Friday.
 
In overturning a Rogers County trial judge, the majority relied upon a 2004 state Supreme Court ruling that Department of Public Safety recordings of administrative hearings concerning revocation of drivers' licenses are public.
 
"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,'" said Judges Robert Bell and Kenneth Buettner on Friday.
 
Chief Judge Larry Joplin cast the dissenting vote but with no written opinion.
 
The Oklahoma Open Records Act makes public the "facts concerning the arrest, including the cause of arrest and the name of the arresting officer." (OKLA. STAT. tit. 51, § 24A.8(A)(2))
 
The Oklahoma Supreme Court in 2004 said the DPS recording of administrative hearings contained facts concerning arrests and therefore are open under the Open Records Act. (Fabian & Assoc., P.C., v. State ex. rel. Dept. of Public Safety, 2004 OK 67)
 
But in 2011, a Rogers County trial judge ruled that Claremore Police Department dash cam recordings were not public records.
 
Associate District Judge Sheila A. Condren said the state Supreme Court case dealt "with what amounts to a transcript of a public hearing."
 
"In contrast, the 'dash cam' recording is a direct piece of evidence," she said.
 
Bell and Buettner said her "holding that the video is exempt because it could be used as evidence in a subsequent criminal prosecution is without legal support."
 
"There is no such exemption enumerated in the Act," they noted.
 
They also noted that although state legislators had exempted Oklahoma Highway Patrol video and audio recordings in 2005 following an Oklahoma County district judge's ruling barring the OHP from keeping videotapes of traffic arrests secret, no such exemption existed for local law enforcement.
 
Condren also had ruled that Claremore did not violate the Open Records Act because the requesters had listed the wrong date -- April 4, not March 4 -- for the arrest and therefore no such video existed for that date.
 
"It is not reasonable to expect a public agency to anticipate what records are being requested," she reasoned. "It is the responsibility of the requesting party to provide accurate information regarding the records they seek."
 
But Bell and Buettner emphatically overturned Condren on that point as well.
 
Police officials might have been initially confused by the wrong date but had subsequently provided many documents concerning the arrest, Bell and Buettner said.
 
They noted that Claremore Police Chief Stan Brown testified that he understood the request was for records of a March 4 arrest and that he refused to provide the video because of his departmental policy requiring such video be requested from the district attorney's office.
 
Brown "knew exactly what" records were being requested, concluded Bell and Buettner.
 
Condren's conclusion that the city had "technically complied" with the request "because of the erroneous date is clearly contrary to the weight of the evidence," the two appellate judges ruled.
 
Bell and Buettner's ruling is a victory for common sense and the public's need to know. Public access to dash cam recordings of arrests protects police officers from false allegations of misconduct and provides those arrested with evidence of actual abuse.
 
Local law enforcement officials typically release dash cam videos. But I won't be surprised if cities and sheriffs ask legislators next year for the same exemption granted to the Oklahoma Highway Patrol.
 
I hope that enough legislators will recognize the value of public access to such recordings and will not only reject such a request but also remove the exemption for OHP video and audio.
 

 
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.