Tall blog: State says one-year wait for records not a denial

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Ziva Branstetter is the editor in chief of The Frontier, and also the Tall half of the Tiny & Tall show. That’s the nickname given to her and reporter Cary Aspinwall by friends. The Tall Blog takes on the big subjects that are dear to Branstetter: transparency, the news business and high-profile investigations. She’ll also talk about life starting a new digital media company in the middle of the country.

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Gov. Mary Fallin’s office argues in legal filings that she, rather than a court, should determine what the Open Records Act means when it says public bodies must provide “prompt and reasonable access” to public records.

And taking more than one year to supply records in a case that could impact executions in Oklahoma and several other states is apparently OK with Fallin.

In December, I sued Fallin and the Department of Public Safety over their failure to provide records related to the botched execution of Clayton Lockett. The company that owns the Tulsa World, BH Media, joined me in the suit and remains a plaintiff.

Though I now work for The Frontier, I appreciate the World’s support of this lawsuit. Reporters Committee for Freedom of the Press — a non-profit devoted to transparency issues  — is providing legal representation, enabling us to test what the Open Records Act means by “prompt and reasonable” and who gets to decide that.

My records requests in the days following Lockett’s 43-minute execution weren’t overly broad considering the situation: emails to and from the governor and key state officials, DOC logs and investigative reports.

Attorney General Scott Pruitt’s office complied relatively quickly, turning over a batch of emails while withholding others under exemptions including attorney-client privilege.

In September, when I learned the Department of Public Safety had already prepared transcripts of interviews it conducted with more than 100 witnesses, I asked for those also. Any names of the execution doctor, pharmacist, executioners and other information required to be kept confidential by law were already blacked out by DPS.

Regardless of your feelings about the death penalty or any pain felt by Lockett — who committed a monstrous crime when he shot Stephanie Neiman and buried her alive — this case is important.

The challenge started by Lockett and continued by other death row inmates is now before the U.S. Supreme Court. The court could find the drug that Oklahoma and several other states have used violates the ban on cruel and unusual punishment.

Court observers say only one vote would have to swing to the liberal side of the court for that to happen. A decision is expected later this month.

The secrecy surrounding the execution almost certainly contributed to the “procedural disaster” and international criticism that followed. But the secrecy continues.

Out of 101 people interviewed by DPS as part of its investigation, 23 are unidentified in the transcripts.

While the reason for granting anonymity to several witnesses is not surprising, DPS took the additional step of blacking out names of most DOC employees no matter how minor a role they played that night.

The name of an executive branch employee who manned the open phone line to the prison and ordered the execution to begin has also been removed without explanation. (It wasn’t Fallin, who was attending a Thunder game, or her general counsel, Steve Mullins.)

The case also raises the question of whether state officials rushed to use an unreliable drug, midazolam, claiming in court filings they had no other choice when in fact they may have.

BuzzFeed reported last month that Pruitt’s office misled the U.S. Supreme Court by filing a heavily redacted letter it claimed was sent to Oklahoma by a pharmacy. The state used the letter to bolster its claim that it couldn’t obtain the drug it had previously used, pentobarbital.

The scarcity of drugs is a central claim to the state’s case but in fact, the letter was sent by a Texas pharmacy to prison officials in Texas, records show. Pruitt’s office did not correct the error with the court until it was pointed out by BuzzFeed’s Chris McDaniel.

The reasons for more than a year’s delay in turning over these execution documents have never been clear.

Rather than explaining why they haven’t yet complied, state officials are arguing the courts have no dog in this fight.

Attorneys for Fallin and DPS argue the courts have no jurisdiction to intervene until the state denies the request. And, they argue they haven’t denied the request. (The law says any person denied records has a right to bring a lawsuit seeking relief by the courts.)

As a hearing in the lawsuit approached in March, DPS turned over about 5,000 pages of records, including heavily redacted interview transcripts.

The records revealed that the prison staff felt pressured by two executions scheduled on one night and that the “third choice” doctor said he received no training other than being told he would pronounce death. Lockett had to help the medical team find a vein but the IV still failed, possibly because DOC lacked the right needles.

Prison warden Anita Trammell also told investigators she was asked to sign an affidavit prepared by the Attorney General’s office that contained statements that weren’t true, including that she had verified the pharmacist’s license and the expiration dates on the lethal drugs.

Thousands of emails gathered by DPS as part of its investigation still remain under wraps, even though a federal judge urged their release.

During a hearing in April, an attorney for the state argued that the request was still being “processed.”

Attorney Bob Nance, representing Fallin and DPS Commissioner Michael Thompson, said: “They will get their materials in due time.”

The governor was really busy, Nance told Oklahoma County District Judge Patricia Parrish, adding that Fallin’s office is “ground zero for essential functions.”

Parrish wasn’t moved by that argument. She ruled that the state’s one-year delay in providing records was, in effect, the same as a denial.

The ruling was not an outright victory for us because Parrish said she needed to know the reason behind extensive redactions of the documents. (Many pages of the interview transcripts are partially or completely blacked out.)

Parrish stayed her ruling so the state’s attorneys could decide whether to appeal. And they have, asking the state Supreme Court to prohibit discovery and other action in our lawsuit while it takes up the underlying claim that delay — no matter how long — is not denial.

Incredibly, their filing argues that the World and I as well as the public “will be harmed” if the Supreme Court does not issue a stay.

Why would we be harmed? Because “members of the governor’s staff will be diverted from both their essential functions and the process of preparing records for disclosure,” their motion states.

To summarize: The state wants the courts to prevent our attempts to find out why the response has been so glacial because that would slow down the process even more.

The decision in this case is crucial to future public access to open records in Oklahoma.

If the courts say Fallin and DPS are correct, public bodies could sit on requests indefinitely, because they get to decide what is prompt and reasonable. Experience shows that in many cases, the response will be neither.

ziva@readfrontier.com
918-520-0406

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State says one-year wait for records not a denial

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Gov. Mary Fallin’s office argues in legal filings that she, rather than a court, should determine what the Open Records Act means when it says public bodies must provide “prompt and reasonable access” to public records.

And taking more than one year to supply records in a case that could impact executions in Oklahoma and several other states is apparently OK with Fallin.

In December, I sued Fallin and the Department of Public Safety over their failure to provide records related to the botched execution of Clayton Lockett. The company that owns the Tulsa World, BH Media, joined me in the suit and remains a plaintiff.

Though I now work for The Frontier, I appreciate the World’s support of this lawsuit. Reporters Committee for Freedom of the Press — a non-profit devoted to transparency issues  — is providing legal representation, enabling us to test what the Open Records Act means by “prompt and reasonable” and who gets to decide that.

My records requests in the days following Lockett’s 43-minute execution weren’t overly broad considering the situation: emails to and from the governor and key state officials, DOC logs and investigative reports.

Attorney General Scott Pruitt’s office complied relatively quickly, turning over a batch of emails while withholding others under exemptions including attorney-client privilege.

In September, when I learned the Department of Public Safety had already prepared transcripts of interviews it conducted with more than 100 witnesses, I asked for those also. Any names of the execution doctor, pharmacist, executioners and other information required to be kept confidential by law were already blacked out by DPS.

Regardless of your feelings about the death penalty or any pain felt by Lockett — who committed a monstrous crime when he shot Stephanie Neiman and buried her alive — this case is important.

The challenge started by Lockett and continued by other death row inmates is now before the U.S. Supreme Court. The court could find the drug that Oklahoma and several other states have used violates the ban on cruel and unusual punishment.

Court observers say only one vote would have to swing to the liberal side of the court for that to happen. A decision is expected later this month.

The secrecy surrounding the execution almost certainly contributed to the “procedural disaster” and international criticism that followed. But the secrecy continues.

Out of 101 people interviewed by DPS as part of its investigation, 23 are unidentified in the transcripts.

While the reason for granting anonymity to several witnesses is not surprising, DPS took the additional step of blacking out names of most DOC employees no matter how minor a role they played that night.

The name of an executive branch employee who manned the open phone line to the prison and ordered the execution to begin has also been removed without explanation. (It wasn’t Fallin, who was attending a Thunder game, or her general counsel, Steve Mullins.)

The case also raises the question of whether state officials rushed to use an unreliable drug, midazolam, claiming in court filings they had no other choice when in fact they may have.

BuzzFeed reported last month that Pruitt’s office misled the U.S. Supreme Court by filing a heavily redacted letter it claimed was sent to Oklahoma by a pharmacy. The state used the letter to bolster its claim that it couldn’t obtain the drug it had previously used, pentobarbital.

The scarcity of drugs is a central claim to the state’s case but in fact, the letter was sent by a Texas pharmacy to prison officials in Texas, records show. Pruitt’s office did not correct the error with the court until it was pointed out by BuzzFeed’s Chris McDaniel.

The reasons for more than a year’s delay in turning over these execution documents have never been clear.

Rather than explaining why they haven’t yet complied, state officials are arguing the courts have no dog in this fight.

Attorneys for Fallin and DPS argue the courts have no jurisdiction to intervene until the state denies the request. And, they argue they haven’t denied the request. (The law says any person denied records has a right to bring a lawsuit seeking relief by the courts.)

As a hearing in the lawsuit approached in March, DPS turned over about 5,000 pages of records, including heavily redacted interview transcripts.

The records revealed that the prison staff felt pressured by two executions scheduled on one night and that the “third choice” doctor said he received no training other than being told he would pronounce death. Lockett had to help the medical team find a vein but the IV still failed, possibly because DOC lacked the right needles.

Prison warden Anita Trammell also told investigators she was asked to sign an affidavit prepared by the Attorney General’s office that contained statements that weren’t true, including that she had verified the pharmacist’s license and the expiration dates on the lethal drugs.

Thousands of emails gathered by DPS as part of its investigation still remain under wraps, even though a federal judge urged their release.

During a hearing in April, an attorney for the state argued that the request was still being “processed.”

Attorney Bob Nance, representing Fallin and DPS Commissioner Michael Thompson, said: “They will get their materials in due time.”

The governor was really busy, Nance told Oklahoma County District Judge Patricia Parrish, adding that Fallin’s office is “ground zero for essential functions.”

Parrish wasn’t moved by that argument. She ruled that the state’s one-year delay in providing records was, in effect, the same as a denial.

The ruling was not an outright victory for us because Parrish said she needed to know the reason behind extensive redactions of the documents. (Many pages of the interview transcripts are partially or completely blacked out.)

Parrish stayed her ruling so the state’s attorneys could decide whether to appeal. And they have, asking the state Supreme Court to prohibit discovery and other action in our lawsuit while it takes up the underlying claim that delay — no matter how long — is not denial.

Incredibly, their filing argues that the World and I as well as the public “will be harmed” if the Supreme Court does not issue a stay.

Why would we be harmed? Because “members of the governor’s staff will be diverted from both their essential functions and the process of preparing records for disclosure,” their motion states.

To summarize: The state wants the courts to prevent our attempts to find out why the response has been so glacial because that would slow down the process even more.

The decision in this case is crucial to future public access to open records in Oklahoma.

If the courts say Fallin and DPS are correct, public bodies could sit on requests indefinitely, because they get to decide what is prompt and reasonable. Experience shows that in many cases, the response will be neither.

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