University of Oklahoma freshman running back Joe Mixon was charged with a misdemeanor Friday, but Cleveland County District Attorney Greg Mashburn refused to release surveillance video of the July 25 incident. “It’s evidence in our case, so if we end up going to jury trial on it, we'll have to show it to a jury,” Mashburn told reporters. “I’ll get accused of trying to alienate my jury pool before we get a chance, so I have to keep it. That way the first people that see it are the jurors that don't have any knowledge of what happened.”

Mashburn said the video would likely would be made public after the case is settled, according to the Norman Transcript.

But Mashburn's decision to withhold the video contradicts the state Open Records Act and decisions by Oklahoma courts.

As I explained Aug. 5, 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 one of those cases, the trial judge had ruled that Claremore Police Department dash cam recordings were not public records, calling them "a direct piece of evidence."

But in overturning her decision, the state Court of Civil Appeals 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,” the appellate court noted.

The Open Records Act allows district attorneys to keep "litigation files and investigatory reports confidential" "except as otherwise provided by state or local law." (OKLA. STAT. tit. 51, § 24A.12)

The Open Records Act does provide otherwise in this situation.

Access to a document that “would otherwise be available for public inspection and copying shall not be denied because a public body or public official is using or has taken possession of such records for investigatory purposes or has placed the records in a litigation or investigation file." (OKLA. STAT. tit. 51, § 24A.20)

Video of an incident that shows the cause of an arrest is unquestionably a public record.

This particular video remains in the possession of both Mashburn and the Norman police, according to one sports website.

Norman police officials previously refused to provide the tape due to its “evidentiary value.” But charges have been filed and Mixon is expected to be arraigned Monday.

Even if Mashburn won't release the video, I don't believe the Norman Police Department has any choice but to provide it if a records request is received.

Mashburn's concerns about pretrial publicity can be addressed by the trial judge if necessary and don't trump the Open Records Act's requirements.

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.