Trial judge in Mixon case doesn't want video released under Open Records Act

First it was a Norman assistant city attorney asininely defying the Open Records Act by allowing only news media to view surveillance video of a University of Oklahoma football player knocking out a female student with a right hook. Now it's the trial judge who wants to defy the statute and our state appellate courts by withholding the video from the public until after Joe Mixon's misdemeanor trial, which has been delayed until January, reported News9 on Friday night.

Cleveland County Special District Judge Steven Stice has scheduled a hearing for next Friday with Norman officials to discuss public access to the video, the TV station reported.

(State of Oklahoma v. Mixon, Joe, No. CM-2014-1774 (Cleveland Co. Aug. 15, 2014).

Stice said he plans to do everything in his power to keep the video from being released before the trial. He said he's concerned about a fair trial and called the release of the video "detrimental to the justice system," News9 reported.

Stice is candidate in the Nov. 4 election for the newly created district judgeship for Cleveland, McClain and Garvin counties.

In August, Cleveland County District Attorney Greg Mashburn refused to release the surveillance video of the July 25 incident. Then at Mixon’s arraignment in August, Stice ordered the video not to be released by Mixon’s defense attorney, Mashburn or Norman police.

But just a day later, Stice issued an order clarifying that they were not restricted “from complying with the law as it pertains to unrelated third parties.”

In September, Assistant City Attorney Rickey J. Knighton II refused to allow the video to be copied, claiming that the Open Records Act does not require that these records be made open for public "copying."

State Sen. David Holt called that decision "bogus." The Oklahoma City Republican wrote the bill taking effect Nov. 1 that requires law enforcement agencies to make their records available for copying. (Okla. Stat. tit. 51, § 24A.8(A))

Holt noted that the public already had the right to copies of law enforcement records. Adding "copying" to the statute only codified what attorney general opinions had established long ago, he told The Oklahoman.

Once reporters got to view the video, however, their bosses didn't push for copies. No need to spend money going to court for something that would unequivocally become available on Nov. 1.

But now Stice wants to override the Open Records Act, state attorneys general, the Oklahoma Supreme Court and the state Court of Civil Appeals.

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(A)(2))

Under that provision, Department of Public Safety recordings of administrative hearings concerning revocation of drivers’ licenses were public records, the state Supreme Court ruled in 2004. (Fabian & Assoc., P.C., v. State ex. rel. Dept. of Public Safety, 2004 OK 67)

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

In 2013, a Court of Civil Appeals panel ruled that a Claremore police dash-cam video of a DUI arrest contained facts concerning the arrest and therefore was public under the Open Records Act.

In overturning the trial judge's decision in that case, the appellate court 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.

But now Stice wants to withhold the Mixon video rather than take other steps to ensure a fair trial for Mixon.

If Stice can declare that this public record isn't really public, then he -- and other trial judges -- can close other law enforcement records such as arrest reports, incident reports and those dash-cam videos that become unequivocally public under the Open Records Act on Nov. 1.

I am hoping that this time, the news media won't stand idly by when a government official claims the Open Records Act doesn't mean what it plainly says.

Joey Senat, Ph.D. Associate Professor OSU School of Media and 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.