Washington County District Attorney Kevin Buchanan has no standing to challenge a trial judge's decision to release a 2011 video showing a confrontation in a local hospital emergency room between four Bartlesville police officers and a handcuffed patient, a three-judge panel of the state Court of Civil Appeals ruled Wednesday. "We would characterize the appeal as meritless," wrote Judge P. Thomas Thornbrugh,  joined by Judges Jerry Goodman and W. Keith Rapp.

The Bartlesville Examiner-Enterprise received a copy of the hospital surveillance video in 2012 after the newspaper agreed not to seek attorney’s fees from the city, which in turn agreed not to appeal the trial judge’s order to release the video. The newspaper posted the 44-minute video.

Three of the officers were fired. Of the two charged with misdemeanor assault and battery, Sonya Jean Worthington was found guilty and fined $1,000. Stacy Charles Neafus was acquitted. A fourth officer was placed on administrative leave following the incident but returned to active duty.

District Judge Curtis L. DeLapp’s order to release the video was "crystal clear" that it applied only to the Bartlesville Police Department, not to Buchanan's office, wrote Thornbrugh.

Buchanan, "in his quest to continue a conversation in which he is not involved, and despite the clear language of [DeLapp's] writ, has attempted to advance the argument that he 'still has a dog in the fight,'" Thornbrugh wrote.

Buchanan argued that:

• DeLapp was wrong in deciding the video was a public record under the state Supreme Court's decision in Fabian & Assoc., P.C., v. State ex. rel. Dept. of Public Safety, 2004 OK 67; 
• DeLapp erred in accepting testimony from the patient's attorney that the patient had waived any claim of confidentiality; and
• The pre-trial release of such videotape evidence "could hamper future criminal prosecutions in other cases."

Thornbrugh said none of those arguments demonstrated that Buchanan has "a legally protected interest" infringed upon by DeLapp's order or involved either the city or police, "who clearly have no interest in continuing to litigate this matter."

Thornbrugh said the Oklahoma Supreme Court's decision in Fabian makes clear that video in possession of a law enforcement agency that contains facts concerning an arrest is public under the state Open Records Act.

He also noted that Buchanan admitted to playing portions of the video at a Fraternal Order of Police meeting at which "many of those who were present had no direct involvement in the case."

"It is difficult to see how [Buchanan] could as a practical matter receive any of the relief he requested on remand since the tape has already been produced and made available to the public, and the prosecution of the subject officers has long since been completed," said Thornbrugh. "Additionally, since the trial court made no determination that District Attorney had any obligation to produce the tape or any other material in his possession there was no demonstrated disruption of District Attorney's policy or practice that was immediately impaired."

The Court of Civil Appeal panel denied The Bartlesville Examiner-Enterprise's request for appellate attorney fees because it had not filed a separate motion as required by a state Supreme Court rule. But Thornbrugh left open the door for the newspaper to file such a motion because the rule did not take effect until Aug. 1.

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.