WARD & LEE, P.L.C. v. CITY OF CLAREMORE

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WARD & LEE, P.L.C. v. CITY OF CLAREMORE

2014 OK CIV APP 1

316 P.3d 225

Case Number: 109895

Decided: 05/31/2013

Mandate Issued: 01/03/2014

DIVISION I

THE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION I

Cite as: 2014 OK CIV APP 1 , 316 P.3d 225

WARD & LEE, P.L.C., Plaintiff/Appellant,

v.

CITY OF

CLAREMORE; SARAH SHARP, CITY CLERK; STAN BROWN, CHIEF OF POLICE; and JULIE

SPURLING, RECORDS SUPERVISOR, Defendants/Appellees.

APPEAL FROM THE DISTRICT COURT

OF ROGERS COUNTY, OKLAHOMA

HONORABLE SHEILA A. CONDREN, JUDGE

REVERSED AND REMANDED

Stephen G. Fabian, Jr., FABIAN & ASSOCIATES, INC. P.C., Oklahoma City,

Oklahoma, and Josh D. Lee, WARD & LEE, PLC, Vinita, Oklahoma, for

Plaintiff/Appellant,

Matthew J. Ballard, ROSENSTEIN, FIST & RINGOLD,

Tulsa, Oklahoma, for Defendants/Appellees.

ROBERT D. BELL, JUDGE:

¶1 Plaintiff/Appellant, the law firm of Ward & Lee, P.L.C., appeals from

the trial court's order denying the firm's petition for declaratory relief

brought pursuant to the Oklahoma Open Records Act, 51 O.S. 2011 §24A.1 et seq .

For the reasons set forth below, we reverse and remand for further

proceedings.

FACTS AND PROCEDURAL HISTORY

¶2 Josh D. Lee, a principal of Appellant law firm, routinely represents

clients accused of alcohol and driving related criminal offenses. In the spring

of 2011, Lee was hired to represent Richard Stangland, who had been arrested by

a Claremore police officer for driving under the influence of intoxicants on

March 4, 2011, in Rogers County. On April 18, 2011, Lee sent an Open Records

request to the Claremore Police Department. The letter identified Stangland by

his full name and Oklahoma drivers license number. The request sought any and

all video and audio tape recordings taken in the patrol car, booking area and

any breath testing area, and copies of the arresting officer's arrest

report/affidavit of probable cause, accident investigation reports and police

reports "for the above referenced person on the above referenced date." Lee

erroneously listed Stangland's arrest date as April 4, 2011, rather than March

4, 2011.

¶3 In response, Julie Spurling, Records Supervisor for the Claremore Police

Department, sent Lee a letter directing him to see the attached Claremore Police

Department video and audio policy. The policy, an "Internal Memo" created by

Police Chief Stan Brown on March 2, 2011, stated inter alia that any

person seeking disclosure of any video or audio recording from the department

for an active criminal case must process their request initially through the

prosecutorial authority (in this instance the Rogers County District Attorney's

Office). Spurling's letter made no mention of the erroneous arrest date listed

in Lee's request and provided no other documents requested by Lee.

¶4 On May 2, 2011, Chief Brown sent a second response to Lee which included

several documents "reference[d in] your open records request dated April 18,

2011." Those documents all related to Stangland's March 4, 2011, arrest. With

respect to video and audio recordings, however, Chief Brown's letter directed

Lee to follow the procedure outlined in the chief's audio and video policy. Like

Spurling's previous response, Chief Brown's letter mentioned nothing about

confusion over Stangland's arrest date. There is no evidence in the record

Stangland was arrested by Claremore police on any date other than March 4,

2011.

¶5 On the belief that a video existed showing Stangland's arrest, Appellant

filed the instant suit on May 24, 2011. The petition sought declaratory relief

for Appellees' violation of the Open Records Act. Specifically, Appellant

contended any video and/or audio recordings of Stangland's arrest constituted

records containing "facts concerning the arrest, including the cause of arrest"

pursuant to 51 O.S. 2011 §24A.3

and §24A.8. Appellant's petition also sought an injunction to ensure future

disclosure for similar requests.

¶6 The record reveals the Claremore Police Department was unable to transfer

video images and audio files from its database to DVDs from April 1, 2011, to

June 2, 2011, due to malfunctioning equipment. On June 6, 2011, the Department

made a DVD copy of the "dash camera" video of Stangland's arrest and forwarded

it to the Rogers County District Attorney's Office the next day. The District

Attorney's Office thereafter provided the video to Appellant as part of the

discovery process in Stangland's criminal prosecution. There is no allegation or

evidence that the Claremore Police Department possesses any other video or audio

recordings of Stangland's DUI arrest.

¶7 At the subsequent non-jury trial, Appellees claimed: (1) Appellant's

lawsuit was moot because the firm ultimately received the recording it sought;

(2) there has been no violation of the Open Records Act because Appellant listed

an incorrect date of arrest in its request; and (3) the dash cam recording of

Stangland's arrest is not a public record subject to public inspection under the

Act. The trial court denied relief, holding: (1) the issues were not moot

because Appellant had a reasonable expectation it would be subjected to the same

action again; (2) Appellees "technically" did not violate the Act because

Appellant listed the wrong arrest date in its request; and (3) the dash cam

video, as a direct piece of evidence, is not a public record subject to

disclosure under the Act. From said judgment, Appellant appeals.

STANDARD OF REVIEW

¶8 A trial court's decision in a declaratory judgment action is "reviewable

in the same manner as other judgments." 12 O.S. 2011 §1654. In Pacificare

of Okla. v. Oklahoma Health Care Auth. Bd. , 2001 OK CIV APP 73 , 25 P.3d 930 , the Court

reiterated:

The appellate court has the plenary, independent, and nondeferential

authority to reexamine a trial court's legal rulings. Matters involving

legislative intent present questions of law which are examined independently

and without deference to the trial court's ruling. The trial court's

findings of fact will not be disturbed unless they appear clearly to be

against the weight of the evidence. Thus, in actions of equitable

cognizance, the judgment made by the trial court will be reversed if it is

clearly contrary to the weight of the evidence or contrary to accepted

principles of equity or rules of law.

Id. at ¶13, 25 P.3d at 933-4 (citations omitted).

FACTUAL FINDING OF TECHNICAL COMPLIANCE

¶9 We first examine - and reject - the trial court's factual finding that

Appellees complied with the Open Records Act because Appellee listed the wrong

arrest date in its request. The date of Stangland's arrest was never an issue

with Chief Brown and the Claremore Police Department. Although Brown and his

employees may initially have been confused by the date listed on Appellee's Open

Records request, Appellees quickly concluded Appellant was seeking information

about Stangland's arrest on March 4, 2011 - the only arrest for Stangland listed

in the city's records. Indeed, Chief Brown responded to Appellant's request by

forwarding many of the documents Appellant requested concerning Stangland's

March 4, 2011, arrest.

¶10 Chief Brown's refusal to turn over the dash cam video of Stangland's

arrest was not due to confusion over his arrest date, nor was it related to the

technical problems the police department was having with its recording

equipment. The issue in this case has always been about Brown's internal policy

regarding the releasing of video and audio recordings. Chief Brown testified

during trial he understood Appellant's request sought a copy of any arrest video

of Stangland on March 4, 2011. The chief further specifically and repeatedly

testified he did not authorize the release of the dash cam video of Stangland's

arrest because of his internal policy . Appellees' argument that they

refused to turn over the video because of an erroneous arrest date listed in

Appellant's Open Records request is disingenuous and unsupported by the record.

Appellees knew exactly what Appellant was seeking. The trial court's conclusion

that Appellees "technically" complied with Appellant's request because of the

erroneous date is clearly contrary to the weight of the evidence.

OPEN RECORDS ACT ANALYSIS

¶11 At issue in this case is whether a police car "dash cam" video of a DUI

arrest is subject to mandatory disclosure under the Open Records Act. Subsection

24A.8(B) of the Act permits police departments to deny access to law enforcement

records unless those records are listed in §24A.8(A) or made open by other laws

or court order. 1 Subsection 24A.8(A) provides in relevant part:

A. Law enforcement agencies shall make available for public inspection,

if kept, the following records:

1. An arrestee description, including the name, date of birth, address,

race, sex, physical description, and occupation of the arrestee;

2. Facts concerning the arrest, including the cause of arrest and the

name of the arresting officer.

¶12 The preliminary question is whether Stangland's arrest video is a

"record" under the Act. The Claremore Police Department clearly falls within the

definition of "law enforcement agency" set forth in §24A.3(5) of the Act

("police departments"). "Record," as defined by §24A.3(1) of the Act, includes

audio and video records "created by, received by, under the authority of, or

coming into the custody, control or possession of public officials, public

bodies, or their representatives in connection with the transaction of public

business, . . ." The dash cam video at issue here is a recording created by and

under the authority of public officials in connection with the transaction of

public business. Thus, the arrest video is a "record" as defined by the Act.

¶13 The lynchpin issue here is whether Stangland's arrest video constitutes

"[f]acts concerning [his] arrest, including the cause of arrest . . ." as

defined by §24A.8(A)(2). Appellant argues an arrest video may contain the reason

for the stop, the facts that lead an officer to make an arrest (including field

sobriety tests and statements), the procedures followed in making the arrest

(including Implied Consent procedures), and breath or alcohol testing

procedures. All of these, Appellant contends, constitute "facts concerning

arrest."

¶14 In Fabian & Associates, P.C. v. State ex rel. Dept. of Pub.

Safety , 2004 OK 67 , 100 P.3d 703 , the appellant law

firm sought declaratory and injunctive relief after being denied, pursuant to an

Open Records request, access to recordings of DPS administrative hearings

concerning the revocation of drivers licenses. The Supreme Court held the tape

recordings of Implied Consent hearings before DPS are "records" as defined by

the Act and that DPS is required to provide copies of the recordings for public

inspection. Specifically, the Court held:

[S]ince the tapes contain facts concerning the arrest of the individual

who was the subject of the hearing [pursuant to §24A.8(A)(2)], DPS is

required to make these tapes available to the

public.

Fabian at ¶15, 100 P.3d at 706 . Appellant in the present case argues,

and we agree, if an Implied Consent hearing is considered "facts

concerning the arrest," then surely the video and/or audio recording of the

actual arrest must also constitute "facts concerning the arrest."

¶15 In Citizens Against Taxpayer Abuse, Inc. v. City of Okla. City , 2003 OK 65 , 73 P.3d 871 , the Supreme Court

reiterated:

Unless a record falls within a statutorily prescribed exemption in the

[Open Records] Act, the record must be made available for public inspection.

The public body urging an exemption has the burden to establish the

applicability of such exemption.

Id . at ¶12, 73 P.3d at 875 . Appellees in the present case failed to

show Stangland's arrest video falls within any exception to disclosure under the

Act. Appellees' argument - and the trial court's 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.

¶16 We note the Legislature has specifically exempted from the definition of

"record" in the Act all "audio or video recordings of the Department of Public

Safety." 51 O.S. Supp. 2005

§24A.3(1)(h)(3). Appellant's counsel contends this amendment was in direct

response to his victory in Oklahoma County District Court Case No. CJ-2005-771,

where the district court held Oklahoma Highway Patrol vehicle video tapes were

law enforcement records under the Act and must be disclosed without requiring a

release from the person shown in the videos. The Act contains no similar

exemptions for audio or video recordings of municipal police departments.

¶17 On the basis of the foregoing, we hold the video of Stangland's arrest

constitutes a public record subject to inspection under the Open Records Act.

Accordingly, the judgment of the trial court is reversed and this matter is

remanded for further proceedings consistent with this opinion. Title 51 O.S. 2011 §24A.17(B) "provides

that any person denied access to a public record and who successfully brings a

civil action for declarative or injunctive relief is entitled to reasonable

attorney fees." Fabian , 2004

OK 67 at ¶19 , 100 P.3d at 707 . Appellant's request for reasonable attorney

fees is hereby granted and the trial court is directed to determine the same on

remand.

¶18 REVERSED AND REMANDED.

BUETTNER, P.J., concurs, and JOPLIN, C.J., dissents.

FOOTNOTES

1

Subsection 24A.8(B) states in full:

Except for the records listed in subsection A of this section and those made

open by other 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.

Citationizer © Summary of Documents Citing This Document Cite

Name

Level

None Found.

Citationizer: Table of Authority Cite

Name

Level

Oklahoma Court of Civil Appeals Cases

Cite Name Level

2001 OK CIV APP 73 , 25 P.3d 930 , 72 OBJ 2014, PACIFICARE OF OKLAHOMA v. OKLAHOMA HEALTH CARE AUTHORITY BOARD Discussed

Oklahoma Supreme Court Cases

Cite Name Level

2003 OK 65 , 73 P.3d 871 , CITIZENS AGAINST TAXPAYER ABUSE, INC. v. CITY OF OKLAHOMA CITY Discussed

2004 OK 67 , 100 P.3d 703 , FABIAN & ASSOCIATES, P.C. v. STATE ex rel. DEPT. OF PUBLIC SAFETY Discussed at Length

Title 12. Civil Procedure

Cite Name Level

12 O.S. 1654 , Determination to Have Effect of Final Judgment - Reviewable as Other Judgments Cited

Title 51 . Officers

Cite Name Level

51 O.S. 24A.3, Definitions Discussed

51 O.S. 24A.1, Short Title Cited

51 O.S. 24A.17, Violations of Oklahoma Open Records Act - Civil Liability Cited