OKLAHOMA CITY – The state’s Open Records Act “needs to be updated,” because public access to information held by the government “is a fundamental liberty,” Guthrie attorney Kevin R. Kemper said Tuesday.
Kemper represented Dr. A. Jay Wagner, Marquette University assistant professor of journalism and media studies, in his lawsuit against the then-Sheriff of Custer County for his refusal to transmit some public records via email.
Trial and appellate judges ruled that then-Sheriff Kenneth Tidwell did not violate state law – because the 36-year-old Open Records Act does not require public officials to deliver public records in any particular manner whatsoever, including email.
The “plain language” of the Act “commands public bodies to do nothing more than passively make records covered by the statute available” for public inspection, copying and reproduction, the Court of Civil Appeals ruled.
State law has not kept up with technology, Custer County District Judge Jill Weedon acknowledged. “Obviously the Open Records Act is due a legislative update,” she wrote in her opinion denying Wagner’s request for an injunction against Tidwell.
Oklahoma’s Open Records Act “needs to be brought into the 21st century,” Kemper said Tuesday.
He contends the jurists should have given greater weight to the intent of the law rather than its “plain language”.
The Open Records Act, Section 24A of state statutes, provides:
“As the Oklahoma Constitution recognizes and guarantees, all political power is inherent in the people. Thus, it is the public policy of the State of Oklahoma that the people are vested with the inherent right to know and be fully informed about their government... The purpose of this Act is to ensure and facilitate the public’s right of access to and review of government records so they may efficiently and intelligently exercise their inherent political power.”
The records that Wagner sought – incident reports or initial offense reports produced by the Custer County Sheriff’s Department on two consecutive days – “were on the sheriff’s computer,” Kemper said. “All he had to do was attach them as a pdf and transmit them by email.”
Kemper fears that after knowledge of the appellate court’s ruling becomes widely known, public officials across the state may make it more difficult for citizens to obtain copies of public records.
“Dr. Wagner and I have exposed a problem,” he said. “We are concerned that records custodians are going to start denying records requests. And this decision has been handed down just as we are emerging from a coronavirus pandemic, when documents of all types were transmitted electronically as a matter of necessity and public safety.”
There are several exceptions to the Open Records Act, Kemper said. “Sometimes there are so many exceptions to a law that they swallow the rule.”
Freedom of information, freedom of the press and freedom of speech “are essential for public participation in the governmental process,” he said.
Kemper said he and Wagner are “examining all of our legal options. There are different ways we can proceed,” but he declined to elaborate. “We are not giving up.”