‘Tilting at Windmills’: What Happens When the Public Fights For Open Records

Welcome to Custer County, Oklahoma, the place emailing a public report is outwardly a burden for the native sheriff’s workplace.

After a 12 months of restricted public interactions and conferences over videoconference amid COVID-19, it might come as a shock {that a} case involving emailed data has reached the Oklahoma Court docket of Civil Appeals.

Oklahoma Watch is marking Sunshine Week (March 14-20) with a collection of tales selling open authorities.

Transparency isn’t only a spotlight for the annual Sunshine Week or a handy trope to allude to on the marketing campaign path. It’s an on a regular basis effort for hundreds of individuals in Oklahoma. Attorneys, researchers, personal residents and journalists all make use of state public data legal guidelines. And typically, they really feel like they haven’t any alternative however to sue the federal government for entry.  

Amongst them are Nick Brooke, an Oklahoma Metropolis knowledge scientist whose concern over COVID-19 data on the Oklahoma State Division of Well being led him to sue the company, and A. Jay Wagner, an assistant professor at Marquette College in Wisconsin. Wagner’s requests for legislation enforcement data led to the Custer County case.

Brooke and Wagner took completely different paths to the courthouse for his or her public data lawsuits. Brooke, who has no authorized coaching, is representing himself. Wagner’s case was taken professional bono by an Oklahoma legal professional who makes a speciality of open data.

Pandemic Information

Within the early weeks of the pandemic final 12 months, Brooke stated he grew to become more and more involved concerning the epidemiological fashions forecasting infections and deaths. He felt like the data wasn’t attending to the proper individuals, like Gov. Kevin Stitt, and needed to request well being division data to the governor.

The division stated it had the data however it might take a while to evaluate and ship to Brooke. Attorneys for the company stated Brooke was by no means denied the data and he filed his lawsuit too shortly. Oklahoma legislation has no particular timelines for Open Information Act requests. As a substitute, the legislation encourages “immediate and cheap entry.”

“Sixteen days whereas the division offers with the biggest world well being disaster in additional than 100 years is solely not cheap,” attorneys for the division wrote of their June 5 try and dismiss the case. “The Division of Well being has been expectantly inundated with requests for data and paperwork all whereas making an attempt to handle the response.”

Brooke, who offers knowledge evaluation to purchasers in retail and journey sectors, stated he’s used public data legal guidelines earlier than on a restricted foundation on behalf of purchasers. However his request to the well being division felt a bit extra private due to the pandemic’s disruptions to every day life and his daughter’s education.

“It went from being a enterprise query of how are we going to save lots of {dollars} to an ethical query of how are we going to save lots of lives,” Brooke stated. “It’s a bit tilting at windmills, and a few of my colleagues give me a tough time about it. I’ve fought a site visitors ticket as soon as. This can be a lot extra difficult than that.”

His first courtroom look, in October, made him nervous. Brooke, who works from house, wears a masks when he goes out in public however wasn’t accustomed to presenting arguments for lengthy durations of time with a face overlaying. His glasses bought fogged up, making him much more nervous. He’s since experimented with completely different masks and bought some new contacts so he’ll be prepared for the subsequent listening to in April.

“Ordinarily, the one that has themselves for a shopper, the one that doesn’t rent an legal professional, has a idiot for a shopper,” Brooke stated. “However on this explicit occasion, I assumed that it might assist. Additionally, I’m type of low-cost. I used to be prepared to throw away $250 on (submitting) this if I’m unsuitable, however I’m not normally unsuitable about this sort of factor.”

Brooke stated the choose and opposing attorneys have been respectful and understanding of his lack of courtroom expertise.

“Every little thing I’ve talked about with the court docket has been very laser-focused on the legislation,” Brooke stated. “I’ve carried out no ethos; I don’t wish to whine. I simply wish to level out that is what the legislation says, and I would like them to observe the legislation.”

Nick Brooke, an Oklahoma Metropolis resident and knowledge scientist, is suing the state well being division over data he requested final 12 months. In his house workplace on March 18, 2021, Brooke stated the company doesn’t appear to be taking his lawsuit severely, which he believes will give him a bonus on the subsequent listening to in April. (Whitney Bryen/Oklahoma Watch)

An E mail Burden

Wagner’s request was made in the summertime of 2019 as a part of a analysis undertaking he was doing with graduate college students at Marquette’s journalism college. They requested numerous data from companies in 10 states, together with about half the sheriff’s workplaces in Oklahoma.

For probably the most half, sheriff’s workplaces throughout the nation complied with the data requests and emailed Wagner the data.

However not Custer County, the place then-Sheriff Kenneth Tidwell stated nothing in state legislation compels him to e mail data to a requester. He provided the data to be inspected at his workplace in Arapaho. Tidwell and his attorneys stated the Open Information Act permits for “for inspection, copying, or mechanical copy throughout common enterprise hours.”

Tidwell stated he resisted emailing the data as a result of doing so may set a precedent for all types of requesters making calls for of county workplaces underneath the Open Information Act. Final summer time, Custer County District Choose Jill Weedon agreed, albeit reluctantly. She stated it’s as much as the Legislature to repair the legislation.

“The court docket finds that the ORA doesn’t presently require the sheriff to e mail a digital copy of the requested paperwork,” Weedon wrote in her July 23 order. “Clearly, the ORA is due a legislative replace. The court docket agrees with plaintiff that it might be extra environment friendly to supply the requested paperwork electronically; nevertheless, the ORA doesn’t require that the sheriff accomplish that.”

Wagner and his legal professional, Kevin Kemper, appealed to the Oklahoma Supreme Court docket, which despatched the attraction to the Court docket of Civil Appeals in October.

Wagner stated Oklahoma sheriffs weren’t alone when it got here to pushing again towards requests within the undertaking. Often, a follow-up telephone name or e mail was sufficient to shake the data unfastened in different counties and in different states. Tidwell misplaced in his GOP main election final June to Dan Day, who took workplace in January.

“The truth that they’ve obtained only a few requests and the truth that they’ve emailed data previously inform you this isn’t about precept,” Wagner stated of Tidwell’s workplace. “That is about them not eager to be attentive to a professor from Milwaukee.”

A handful of different states, like Virginia, Tennessee and shortly Kentucky, require requesters of open data to be residents of the state. However Oklahoma’s legislation doesn’t make that distinction. Wagner stated even in states with a residency requirement, few companies hassle imposing it. It’s not laborious to discover a prepared resident to make the request on behalf of these from out of state.

“What’s the aim of these legal guidelines? Is it transparency for everyone or simply transparency for a choose few,” Wagner requested. “In the end we’re ensuring we’ve got good, efficient governance.”

Paul Monies has been a reporter with Oklahoma Watch since 2017 and covers state companies and public well being. Contact him at (571) 319-3289 or [email protected]. Observe him on Twitter @pmonies. 

The publish ‘Tilting at Windmills’: What Occurs When the Public Fights For Open Information appeared first on Oklahoma Watch.

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