Sports talk radio hosts and newspaper reporters have speculated on if and when surveillance video of University of Oklahoma freshman football player Joe Mixon's altercation with a 20-year-old female student would be made public. For example, The Oklahoman's Ryan Aber wrote a week ago that the video from inside Pickleman’s Gourmet Cafe "might not become public for a long while, if at all."

Aber reported that Norman police refused to provide a copy of the video to Mixon’s attorney, allowing him only to view the tape at the department.

Norman police have refused to release the tape due to its “evidentiary value," Aber reported.

"Barring a leak of the tape, it likely wouldn’t be viewed by the public until a preliminary hearing or a trial if there are eventually charges filed in the case," Aber wrote. "It could also be released if Cleveland County District Attorney Greg Mashburn declines to file charges in the case."

(The Tulsa World's Mike Strain last week quoted Tulsa County’s first assistant district attorney saying if the investigation were his, he wouldn't release the video to anyone outside of police investigators and his office until he had to.)

In contrast, I contend that the surveillance video becomes a public record the moment that Mixon or the female student is arrested.

The 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(2))

Under that provision, law enforcement agencies must make public any videotape they have of an incident that shows the cause of an arrest, Oklahoma courts have ruled.

In 2012, a Washington County judge ordered Bartlesville police to provide the local newspaper with a copy of hospital surveillance video that had led to the arrest of two officers.

Police officials and District Attorney Kevin D. Buchanan had contended that the video was not public under the Open Records Act because surveillance video is not listed among the law enforcement information that must be released.

District Judge Curtis L. DeLapp rejected that argument, holding that the video contained “facts concerning the arrest and cause for the arrest” of the two police officers.

In DeLapp’s ruling, he relied upon a 2004 Oklahoma Supreme Court decision that Department of Public Safety recordings of administrative hearings concerning revocation of drivers’ licenses were public under the Open Records Act. (See Fabian & Assoc., P.C., v. State ex. rel. Dept. of Public Safety, 2004 OK 67)

The Supreme Court held that the requested tapes contained facts concerning arrests and therefore were open under the Open Records Act. (Id. ¶ 14)

“By this statute,” the Supreme Court said, “DPS is required to make available for public inspection facts concerning the arrest. [The plaintiff] asserts that the requested tapes contain the facts concerning the arrest and therefore § 24A.8(A)(2) requires the tapes to be open for public inspection. We agree.”

DeLapp ruled that the hospital surveillance video was a record that came into the custody of the Bartlesville police “in connection with the transaction of public business, i.e. the investigation of crimes committed within its jurisdiction.”

“In particular, the Court finds that the videotape(s) would include the cause of the arrest,” he ruled.

Buchanan's appeal of DeLapp's ruling was rejected by the state Court of Civil Appeals in October. The three-judge panel held that Buchanan had no standing to appeal. But they also rejected his argument that DeLapp was wrong in deciding the video was a public record under Fabian.

The Fabian decision "made clear … that videotapes in possession of a law enforcement agency that contains facts concerning an arrest are open for public inspection" under the Open Records Act, the appellate judges said.

Another three-judge panel of the Court of Civil Appeals had followed the same reasoning when it ruled in May 2013 that a police dash cam video of a DUI arrest contained facts concerning the arrest and therefore was public under the Open Records Act.

The two-judge majority relied upon Fabian in overturning a Rogers County trial judge.

“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.

(Chief Judge Larry Joplin cast a dissenting vote but with no written opinion.)

The trial judge had ruled that Claremore Police Department dash cam recordings were not public records. Associate District Judge Sheila A. Condren said the Fabian 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.

But 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.

Based on these court decisions, Norman police officials could not withhold the surveillance video as evidence if Mixon or the female student is arrested. The video would become a public record long before a preliminary hearing or trial.

If District Attorney Greg Mashburn chooses not to charge Mixon or the female student, Norman police officials still would be permitted under the Open Records Act to release the video to the public.

 

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.