OKLAHOMA CITY – Custer County officials have been vindicated in the ex-sheriff’s dispute with an out-of-state journalism professor over access to public documents.
The Oklahoma Court of Civil Appeals on April 30 affirmed District Judge Jill Carpenter Weedon’s summary judgment in favor of former Custer County Sheriff Kenneth Tidwell, who refused to provide public records in a digital format to an assistant journalism professor in Milwaukee, Wis.
State law has not kept up with technology, the judges noted.
The Oklahoma Open Records Act was adopted in 1985, and although several sections have been updated “at various times,” its operative provisions “have not been meaningfully changed,” the Court of Civil Appeals related.
In the summer of 2019 Professor A. Jay Wagner was engaged in a research project with graduate students at Marquette University’s School of Journalism. They requested various public records from agencies in 10 states, including about half of the sheriff’s offices in Oklahoma.
The records sought “were not expansive,” and consisted of two consecutive days’ worth of incident or initial offense reports generated by the Custer County Sheriff’s Department, the appellate judges wrote. “It is undisputed that the relevant records were covered by” the Open Records Act, the trial and appeals judges noted.
Wagner sent his request electronically, by email, on June 3, 2019, and requested that the pertinent records be returned “as a digital file … and delivered via email.”
Also undisputed is that Tidwell “looked for and found the relevant records” but refused to deliver them to the professor “via email or any other method…”
When Wagner sought clarification “as to the reason for the refusal,” Tidwell replied that nothing in the Open Records Act required him to mail or email records or documents in response to a request. “The law states that I am required to maintain business hours for the purpose of inspection, copying, or the mechanical reproduction of records.” Accordingly, the records “are ready for you or a representative to pick up at our office” in Arapaho during regular business hours.
Tidwell said he resisted emailing the records because doing so could set a precedent for individuals making demands of county offices for all kinds of documents, under the Open Records Act.
Neither Wagner nor a representative appeared at the sheriff’s office; instead, Wagner sued Tidwell, claiming a right to electronic delivery of records under Oklahoma’s Open Records Act. Tidwell moved for summary judgment, contending that “no such right exists,” and Judge Weedon concurred on June 1, 2020.
The sheriff “has not withheld any records under a claim of exemption from release under the ORA,” and Tidwell “maintains incident reports in digital form in his office,” Weedon wrote. The judge agreed with Wagner that “it would be more efficient to produce the requested documents electronically,” but the Open Records Act does not require the sheriff to do so.
“Obviously, the ORA is due a legislative update,” Weedon wrote.
Wagner and his attorney, Kevin Kemper of Guthrie, appealed to the Oklahoma Supreme Court, which referred the matter to the Court of Civil Appeals last October.
The only specific guidance the Oklahoma Open Records Act provides as to how a public body must provide access “is that the access must be ‘prompt’ and ‘reasonable’,” the Civil Appeals court ruled.
The state Legislature described “what a government body must do with regards to its records but did not indicate how the required result must be accomplished.” It appears that the Legislature “did not intend to prescribe any precise method by which the records must be made available.”
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. “To require more is to add to the language of the Act, which we may not do.”
Also, Tidwell’s response was not unreasonable, the judges indicated. “Although the professor’s request … was simple and could have been easily complied with, it is not difficult to imagine far more complex and burdensome requests, both in terms of the number of responsive documents and the sheer volume of requests,” the Court of Civil Appeals wrote.
Tidwell was trounced in the GOP primary election last June by Dan Day, who became sheriff in January.