Sunshine Week: Rules governing Oklahoma law enforcement not considered a public record by many agencies

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Despite being one of the most important documents governing how law enforcement agencies, administrators and officers carry out their duties, many Oklahoma law enforcement agencies do not consider the rules their departments and officers operate under to be a matter of public record.

Like other government agencies and many private companies, law enforcement policy and procedures manuals are considered the rulebook for how the agency should function. They often include an agency’s mission and goals, hiring practices, expectations, and duties of employees and administrators, agency organizational structure and disciplinary procedures, among other things.

If a law enforcement employee is fired or receives a disciplinary action, it is often because a violation of the agency’s written policy or procedures occurred. The rules are used to determine whether an officer or other employee acted appropriately in certain situations, such as officer-involved shootings, and violation of an agency’s policies and procedures can also be the basis for lawsuits against an agency.

But the documents also contain information that some agencies worry could jeopardize officer or operational safety if revealed to the public, such as special operation team tactics, active shooter response procedures, pursuit policies or prisoner transport practices.

Not all law enforcement agencies restrict access to their policies and procedures manual. The Tulsa Police Department, Oklahoma City Police Department, Norman Police Department, and others all have their policy and procedures manual posted online. Many others make their policies and procedures documents, or parts of those documents, available to the public, though others do not.

Attorneys for sheriff’s departments have argued in court cases that, other than a limited number of specific items listed in the Oklahoma Open Records Act, all other documents produced or held by law enforcement agencies are not required to be publicly disclosed by a law enforcement agency. Not included are documents such as agency budgets, employee payroll, jail video and law enforcement policy and procedures manuals.

As part of Sunshine Week, The Frontier made requests to each of the state’s 77 county sheriff’s offices for copies of each department’s policies and procedures manual between March 6 and March 14. Nearly all of the requests were initially made by telephone, with subsequent emailed written open records requests when a sheriff’s department that requested one be filed. In two cases, written open records requests were hand-delivered to sheriff’s offices that stated they did not accept requests via email.

A spreadsheet containing information about each request and each sheriff’s office’s response or non-response can be found here, and will be updated as more responses come in.

Sunshine Week began in 2005 by the American Society of News Editors as a way to promote dialogue on the importance of open government and freedom of information across the nation. The ASNE began partnering with Reporter’s Committee for Freedom of the Press in 2012 for the week-long event held every March.

Open records and safety

Many Oklahoma law enforcement agencies and their attorneys have argued the Oklahoma Open Records Act only covers a thin sliver of the records held by a department.

The law specifically lists nine types of records a law enforcement agency must make public, all dealing with calls for service, arrest and detention of criminal suspects:

  1. An arrestee description, including name, date of birth, address, race and other descriptors.
  2. Facts concerning arrests, including cause of arrest and name of the arresting officer.
  3. A chronological list of all incidents, including initial offense report information showing the offense date, time, general location, officer and a summary of what occurred.
  4. Radio logs and a chronological summary of calls dispatched.
  5. Conviction information, including the convict’s name.
  6. Disposition of all warrants.
  7. Crime summaries, including an agency summary of crimes reported and public calls for service by classification and nature and number.
  8. Jail registers, jail blotter and booking information.
  9. Body and vehicle camera video, with some requirements for redactions.

Other than those nine things, and other records made open by state or local laws, “law enforcement agencies may deny access to law enforcement records except where a court finds that the public interest or the interest of an individual outweighs the reason for denial,” the law states.

Many Oklahoma law enforcement agencies and their attorneys have interpreted this to mean any release of records other than the nine listed by a law enforcement agency — including records such as employee rosters, jailhouse video, policies and procedure manuals, receipts showing purchases or spending of taxpayer money by the agency and even the agency’s annual budget — would be strictly on a voluntary basis.

“I don’t think it (budget documents) would be (public) as far as the sheriff is concerned, but you can get that information from the county clerk or country treasurer or something like that,” said Ray McNair, executive director of the Oklahoma Sheriff’s Association. “That’s pretty much public through any other county official. We’re just talking about the law enforcement section and what they have to release.”

Sheriff’s offices have also successfully used that interpretation of the Open Records Act to have policy and procedure documents and jailhouse videos sealed in court cases. In one lawsuit stemming from the 2016 death of a Choctaw County Jail prisoner, 29-year-old James Legros Jr., attorneys for the sheriff’s argued over the objection of the plaintiffs that jailhouse video and photographs and the jail’s policies and procedures manual should be placed under seal.

“Given the propensity of some to post these items on the internet so they are readily available to anyone and everyone, the knowledge gained by those with ill will or intentions toward staff or to have an inmate released by force is greatly increased,” the sheriff’s office attorneys wrote in a motion on Jan. 7. “The public knowledge of the policies and procedures of the jail pose this same risk.”

Attorneys for Legros’s family argued that the records were subject to the Open Records Act and should not be placed under seal, while attorneys for the sheriff’s office argued they did not.

“While items such as jail registers, an initial offense report, and radio logs are listed as open records in Section 24A.8, notably missing are photographs or policies and procedures,” the sheriff’s attorneys wrote. “Clearly, therefore, photographs made or taken within the Choctaw County Jail, Choctaw County Sheriff’s Office policies and procedures, and/or Choctaw County Jail’s policies and procedures are NOT open records pursuant to the Oklahoma Open Records Act.”

On Jan. 23, the court granted a protective order sealing the jail video, photographs and policies and procedures manual from public view.

“What this all boils down to, unfortunately, is the ass-backwards way that the Open Records Act is written in regards to law enforcement records,” said Joey Senat, a journalism professor at Oklahoma State University who specializes in media law, open records and public meetings. “The presumption of openness is turned on its head for some inexplicable reason.”

Senat said the law enforcement section of the Open Records Act deals with criminal procedure records only, not administrative records held by law enforcement agencies.

“Since that (policies and procedures manual) doesn’t fall in the required list, you may get an argument back that we’re not going to give it to you,” Senat said. “My argument back is ‘it’s administrative.’ That’s no different than saying just because police salaries or police department purchases are not required under that list of what must be released, they’re still public record. I would say policies on how they do their job should be open.”

McNair said sheriff’s offices should always consult with their district attorney before making a determination on whether to release records, but for the most part, if it is not mentioned specifically in the law enforcement section of the law, it is not required to be released to the public. Any release of that nature would be voluntary.

“There is information in policy and procedure manuals you don’t want released to the public,” McNair said. “Obviously, if we have a policy with regard to pursuits and when to call off pursuits, you don’t want to give that information out to the public because basically you’re telling the criminals at what point in time will they quit chasing.”

Several law enforcement agencies contacted by The Frontier also cited safety concerns as a reason for redacting or not including parts of their policies and procedures in response to requests from the public.

“In my opinion, there are some (polices and procedures) that could potentially cause disruption or harm to the safety of officers, if the general public knew certain procedures we did,” said Kay County Sheriff Steve Kelley. “If they knew the procedure we followed, they could deviate and could compromise officer safety. Those types of procedures I do not feel comfortable publishing.”

Both the Oklahoma County and Tulsa County sheriff’s offices also said they release specific parts of their policies and procedures manual, but not the full manual because of threats to safety it may create.

“There is nothing in the statute that requires us to release policy and procedural manuals. The decision to release is up to the sheriff,” said Oklahoma County Sheriff’s Office spokesman Mark Opgrande. “We have released certain ones in the past. Many of the policies we have are considered law enforcement sensitive and contain information we don’t want to get out in the fear of compromising officer safety.”

Senat said not releasing the records could create its own issues.

“It’s a safety issue when they get closed off because secrecy breeds incompetence, inefficiency and corruption,” Senat said. “When law enforcement can hide what it’s supposed to be doing, how it should do things, then the public can’t judge when an agency violates its own rules, or when those rules are flawed to begin with.”

Senat said he hopes to see the Legislature address the issue by requiring law enforcement agencies to abide by the same records requirements as other government agencies.

“We don’t have those kinds of exemptions for other parts of government,” he said. “We should know how they’re supposed to do their job, what their policies are. It’s easier to hide when they screw up when they can say ‘that’s closed for public safety reasons.’”

Responses

The Frontier requested the policy and procedures manuals for all 77 county sheriff’s offices in the state. Of those requests, several agencies either provided a copy of their policies and procedures manual or agreed to allow access to them.

One sheriff’s office, the Stephens County Sheriff’s Office, denied the request outright, others said they would look into the matter and send the documents but have yet to respond with an answer to the request.

Other sheriff’s offices put requirements on making the request that are not included in the state’s Open Records law.

At the Grady County Sheriff’s Office, Undersheriff Phil Blevins said the sheriff’s office does not accept open records requests that are submitted by email or by mail, only in person. The sheriff’s department, if the records request were to be approved, would also charge a copying fee of 25-cents per page fee for the 200-plus page document, and would not allow a person examining the document to use their own scanning device to make their own digital copies.

The Grant County Sheriff’s Office did allow an open records request to be submitted by email, but the request was required to cite the statute showing the records were public and the reason for the request, neither of which are requirements of the Oklahoma Open Records Act. If the request were to be approved, an “administrative fee” of $12 per-hour would be charged to the requester for a staff member to go through the records and redact anything that would be considered confidential.

Other agencies said they did not have copies of their policies and procedures to give.

The Choctaw County Sheriff’s Office said it only had one paper copy of its policies and procedures manual, and the sheriff’s attorney had taken that to Oklahoma City.

Meanwhile, in Comanche County, the sheriff’s office said because Sheriff Kenny Stradley had been in office for around 30 years, the department has no written policies and procedures, other than a set of general policies that cover other government agencies as well.

Several sheriff’s offices The Frontier requested policies and procedures manuals from provided copies or allowed copies to be made of their policy and procedures manuals. Sheriff’s offices in Pittsburg, Washington, Canadian and Ottawa counties all emailed copies of their manuals upon request. The Muskogee County Sheriff’s Office also provided unrestricted access to its manual, though it would not allow an open records request for the document to be sent via email.

Other sheriff’s departments, such as Haskell, Woods, Atoka, Sequoyah and Pottawatomie counties said they had written policies and procedures that were open for the public to inspect and copy, but did not have digital copies or could not email the documents because of the file size.

“Ours is filed in the county clerk’s office,” said Haskell County Sheriff Tim Turner. “That way, if there’s ever an issue, it’s on file and people can’t say it’s been changed. If it’s amended, it’s taken before the board of county commissioners and then the file for the amended section will be placed at the county clerk’s office as well. It’s there for public access. We have nothing to hide.”

The Cleveland County Sheriff’s Office is one of the only departments that posts a copy of its jail policies and procedures manual online. The agency also plans to do the same with the manual for the sheriff’s office within the next month or two, though it currently still in the revision process, said Joy Hampton, spokeswoman for the sheriff’s office. The office also started posting annual reports on its website.

“He (Cleveland County Sheriff Todd Gibson) felt like there’s been a loss of trust in law enforcement, and he wanted to show we are open and above board,” Hampton said. “We want to be fiscally accountable with our money, but we’re also going to be accountable on what our values, ethics and rules are.”

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Clifton Adcock

Senior Staff Writer

A veteran investigative reporter who has covered eastern Oklahoma for more than 15 years, Clifton joined The Frontier in April 2017. A native of southeastern Oklahoma, he has covered numerous issues from criminal justice to politics for publications including the Tulsa World, the Oklahoma Gazette, and Oklahoma Watch. Clifton holds a master’s degree in journalism from the University of Oklahoma. Clifton can be reached at clifton@readfrontier.com. Follow him on Twitter @cliftonhowze
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