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IN THE DISTRICT COURT OF WASHINGTON
STATE OF OKLAHOMA
COUNTY
DISTHICT COURT
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Stephens Media, LLC,dba Bartlesville
Examiner-Enterprise,
Plaintiff,
v.
City of Bartlesville, Bartlesville Police
Department, and District Attorneys' Office
for the ri'" Judicial District, Oklahoma
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Case No. CV-2012-
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Defendants.
PETITION FOR DECLARATORY AND INJUNCTIVE
RELIEF
AND WRIT OF MANDAMUS
COMES NOW the Plaintiff, Stephens Media, LLC,dba Bartlesville Examiner-Enterprise, and
pursuant to Open Records Act, 51 0.5. §24A.1 et seq., and more specifically, 51 0.5. §24A.17,
hereby seeks Orders of this Court declaring that certain records as specified herein be made
available to the Plaintiff, enjoining the Defendants from destroying or altering such records and
issuing a Writ of Mandamus directing the Defendants to immediately produce the subject records
to the Plaintiff or show cause as to why the records should not be produced.
In support of this
Petition, the Plaintiff would show the Court as follows:
Identification
1.
of Parties and Venue
The Plaintiff is a Limited Liability Corporation with its principal offices in Las Vegas,
Nevada, and doing business as the Bartlesville Examiner-Enterprise
Washington
County,
Oklahoma.
The Examiner is a newspaper
Bartlesville, Oklahoma, and surrounding
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communities.
(IfExaminer")
in Bartlesville,
of general circulation
for
2.
The Defendant, City of Bartlesville ("City"), is a charter city with a council/manager
form of government
located in Washington County, Oklahoma. Said Defendant is a "public body"
as defined by the Open Records Act, 51 O.S. §24A.3(2).
3.
Attorney's
The Defendant,
Bartlesville
Police Department,
and the Defendant,
District
Office for the 11th Judicial District, Oklahoma, are "public bodies" and "law enforcement
agencies" as those terms are defined by the Open Records Act at 51 O.S. §24A.3(2), and §24A.3(5),
respectively.
4.
The dispute giving rise to this lawsuit arises from an Open Records Act request
submitted
to the Defendants} seeking records in Defendants} possession in Washington County,
Oklahoma. As more fully described below, the primary record being sought by the Plaintiff is a
videotape which the Defendants have in their possession which is believed to reflect an excessive
use of force on a citizen by two Bartlesville police officers.
The videotape constitutes
a public
record as defined by the Open Records Act at 51 O.S. §24A.3(2).
5.
This court has jurisdiction
over
the parties and subject matter and venue is proper.
Facts Pertaining to Open Records Act Request
6.
On September
18} four Bartlesville Police Department
officers responded to a
request from Jane Phillips Medical Center ("JPMC") Security to assist with a patient who had
allegedly become combative.
7.
A physical encounter
JPMC surveillancecamera
between the officers and the patient was recorded on the
("videotape").
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8.
Two of the officers, Stacy Charles Neafus and Sonya Jean Worthington,
were
charged with assault and battery as a result of the incident captured on the surveillance video.
9.
According to the affidavit for search warrant for the retrieval of the surveillance
videotape, the two officers were seen assaulting the patie-nt while he was handcuffed.
10.
According to the criminal court's information sheet on Officer Neafus, it is alleged
that while the patient was handcuffed, Officer Neafus pushed the patient's torso over a "metal
chair arm with the weight of (Neafus) pressing" on the patient. According to the information sheet
on Worthington, it is alleged that she assaulted the victim "by striking (him) and placing (him) in a
headlock, pulling and twisting his head while (he) was handcuffed with force and violence."
11.
The affidavit for search warrant states that a "concerned citizen" was present in the
emergency room at the time the patient was there and reported that the officers "slammed (the
patient) on the cot in the room, on the floor in the room and that, at one point, one ofthe officers
had choked (the patient) to the point of unconsciousness."
12.
The affidavit for search warrant, which has already been filed as a matter of public
record, also identifies the patient by name.
13.
During the criminal prosecution ofthe officers, a parallel review was conducted by
the Bartlesville police administration
and the City of Bartlesville administration
concerning
violations of policies which govern the conduct of officers. A viewing of the surveillance videotape
was part of that review, and the videotape has become part of the officers' personnel files.
14.
As a result of the review; the officers were terminated as of January 15, 2012. A
copy of the surveillance video is being maintained by the Human Resources Manager for the
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Defendant, City of Bartlesville, in conjunction with the personnel files of the terminated officers.
The Defendants, Bartlesville Police Department and the District Attorneys' Office for the 11th
Judicial District, are also believed to be in possession of copies and/or the original videotape.
15.
The subject videotape was shewn to members of the Fraternal Order of Police
Lodge 117 by the Defendant, District Attorney's Office for the 11th Judicial District, Oklahoma,
and/or the remaining Defendants. Several people who viewed the videotape had no involvement
with the incident or the investigation into the conduct of Officers Worthington and Neafus.
16.
On December 8, 2011, Plaintiff submitted an Open Records Act request to each of
the Defendants, requesting, among other things, the following:
Any item, including a video referenced in a search warrant return
dated Nov. 15, 2011, prepared by Lt. Kevin Ickleberry, seized from
Jane Phillips Medical Center relating to an incident involving four
Bartlesville Police Department officers at Jane Phillips Medical
Center on Sept. 18, 2011, and/or items or information relating to
the arrest of Sonya Worthington and/or Stacy Neafus on Dec. 1,
2011.
Any report or document prepared by any Bartlesville Police
Department officer, investigator or employee, including but not
limited to Lt. Kevin Ickleberry, relating to an incident involving four
Bartlesville Police Department officers at Jane Phillips Medical
Center on Sept. 18, 2011, and/or items or information relating to
the arrest of Sonya Worthington and/or Stacy Neafus on Dec. 1,
2011.
17.
The surveillance videotape, which is now believed to be in the personnel files ofthe
terminated officers as well as the files of the law enforcement agencies, falls within the items
description of the records request.
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18.
The Plaintiff submitted
an initial request to the Defendants for the production of
the videotape and other records on December 8,2011. The Defendant, City of Bartlesville, notified
the Plaintiff on December 19, 2011, that the Plaintiff's open records request was being rejected.
None of the Defendants
produced the requested
records in response to the Plaintiff's initial
request.
19.
The Plaintiff then submitted a revised request to the Defendants on December 28,
2011, again seeking production
of the videotape and other records. The Defendants failed and
refused to produce the requested videotape and records in response to the Plaintiff's revised open
records request.
On January 11, 2012, the Defendant, City of Bartlesville, through its' counsel
informed the Plaintiff that the requested surveillance videotape would not be produced absent a
Court Order.
Ailplicable Legal Authority
20.
Under the Open Records Act, records are defined to include information
that is
either created or received by the public bodies and public officials; thus, the subject videotape is a
record within the purview of the Open Records Act, 51 O.S. §24A.2.
Supreme Court's ruling in Fabian & Associates, P.c. v. Department
705,2004
OK 67,1110. Furthermore,
See also, the Oklahoma
of Public Safety, 100 P.3d 703,
since the videotape contains facts concerning the arrest of
public servants, the videotape must be produced pursuant to 51 0.5. §24A.8(A)(2). See, Fabian &
Associates, P.c. v. Department of Public Safety, 100 P.3d 703, 706, 2004 OK 67,1114.
21.
The Defendant's refusal violatesthe
51 O.S. §24A.2, which provides in pertinent
policy ofthe Open Records Act as delineated at
part as follows:
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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. ... Except where specific state or federal statues create a
confidential privilege, persons Who submit information to public bodies have no right
to keep this information from public access nor reasonable expectation that this
information will be kept from public access; provided, the person, agency or political
subdivision shall at all times bear the burden of establishing such records are protected
by such a confidential privilege.
22.
In addition to the subject videotape's production
Records Act as stated in Paragraph 20 above, the production
being mandated under the Open
of the videotape is also required
under the Open Records Act even if the public bodies are deemed to possess discretion
production
in
of the record since the public interest outweighs any reason the Defendant may assert
for denial ofthe
records request. 510.5. §24A.8{B}, §24A.7{A}, and §24A.12. See also, Ok. Atty.
Gen. Op., 2009 OK AG 33, ~8 (applying the balancing test to personnel records).
23.
In the present case, the public's interest substantially outweighs any conceivable
reason the Defendants may have to deny access. The public maintains a compelling interest in
records of public bodies that disclose whether the public body and its employees are "honestly,
faithfully,
and competently performing their duties" and unless the records are confidential by law,
the records must be made available to the citizens. 510.5. §24A.2 and §24A.5(3)(b). See also, Ok.
Atty. Gen. Op., 2009 OK AG 33, ~9.
24.
The requested videotape is not confidential
by law, thus, the Defendants do not
possess a legitimate reason for refusing to produce the requested record in this case. In fact, to the
extent such confidentiality
may even arguably exist, the Defendants have waived any right to make
such an assertion by virtue of the videotape having previously been shown to third parties.
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25.
The Open Records Act provides at 51 0.5. §24A.20, that access to records "shall not
be denied because a public body or public official is using or has taken possession of such records
for investigatory
purposes or has placed the records in a litigation or investigation
file."
Requested Relief
26.
Under the Open Records Act, any person denied access to records of a public body
or public official may bring a civil suit for declarative or injunctive relief. 510.5. §24A.17.
27.
Pursuant to 120.5. §1451 and §1453, the foregoing facts warrant the issuance of an
alternative Writ of Mandamus commanding the Defendants to produce the requested records by a
date certain or appear before the Court to show cause as to why the records are not being
produced.
WHEREFORE, the Plaintiff,
Stephens Media, LLC, dba Bartlesville Examiner-Enterprise,
respectfully prays for judgment in its favor and against each of the Defendants, City of Bartlesville,
the Bartlesville Police Department
and the District Attorneys'
Office for the 11th Judicial District,
Oklahoma, as follows:
a.
Declaring the Plaintiff's
right to access the requested
videotape,
and other
requested records, in accordance with the Open Records Act and finding the Defendants to
be in violation of the Open Records Act;
b.
Enjoining the Defendants from disposing or altering the requested videotape prior
to producing the same to the Pialnttff:
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c.
Issuance of an alternative Writ of Mandamus to command the Defendants to
produce the videotape and other requested records by a date certain or to appear and
show cause as to their reason for failing to produce the requested videotape;
d.
Awarding the Plaintiff reasonable attorneys' fees and costs as provided under the
Open Records Act, together with such further relief as may be just and equitable under the
premises.
Respectfully submitted,
~.E~~13680
Brewer, Worten, Robinett
P.O. Box 1066
Bartlesville, OK 74005
(918) 336-4132
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VERIFICATION
State of Oklahoma
ss:
County of Washington
Chris Rush, Editor and Publisher ofthe Bartlesville Examiner-Enterprise, of lawful age and
being first duly sworn upon oath, deposes and states that he is familiar with the statements set
forth herein and based upon my information and belief, these statements are true and correct.