Politics and Government

‘Tilting At Windmills’: What Happens When The Public Fights For Open Records

KGOU | By Paul Monies

Published March 19, 2021 at 4:40 PM CDT

Nick Brooke, an Oklahoma City resident and data scientist, is suing the state health department over records he requested last year. Brooke is seen here working in his home office on March 18, 2021.

Welcome to Custer County, Oklahoma, where emailing a public record is apparently a burden for the local sheriff’s office.

After a year of limited public interactions and meetings over videoconference amid COVID-19, it may come as a surprise that a case involving emailed records hasreached the Oklahoma Court of Civil Appeals.

Transparency isn’t just a highlight for the annual Sunshine Week or a convenient trope to allude to on the campaign trail. It’s an everyday effort for thousands of people in Oklahoma. Attorneys, researchers, private citizens and journalists all make use of state public records laws. And sometimes, they feel like they have no choice but to sue the government for access.

Among them are Nick Brooke, an Oklahoma City data scientist whose concern over COVID-19 records at the Oklahoma State Department of Healthled him to sue the agency, and A. Jay Wagner, an assistant professor at Marquette University in Wisconsin. Wagner’s requests for law enforcement records led to the Custer County case.

Brooke and Wagner took different paths to the courthouse for their public records lawsuits. Brooke, who has no legal training, is representing himself. Wagner’s case was taken pro bono by an Oklahoma attorney who specializes in open records.

Pandemic Records

In the early weeks of the pandemic last year, Brooke said he became increasingly concerned about the epidemiological models forecasting infections and deaths. He felt like the information wasn’t getting to the right people, like Gov. Kevin Stitt, and wanted to request health department records to the governor.

The department said it had the records but it would take some time to review and send to Brooke. Attorneys for the agency said Brooke was never denied the records and he filed his lawsuit too quickly. Oklahoma law has no specific timelines for Open Records Act requests. Instead, the law encourages “prompt and reasonable access.”

“Sixteen days while the department deals with the largest global health catastrophe in more than 100 years is simply not reasonable,” attorneys for the department wrote in their June 5 attempt to dismiss the case. “The Department of Health has been expectantly inundated with requests for records and documents all while trying to manage the response.”

Brooke, who provides data analysis to clients in retail and travel sectors, said he’s used public records laws before on a limited basis on behalf of clients. But his request to the health department felt a little more personal because of the pandemic’s disruptions to daily life and his daughter’s schooling.

“It went from being a business question of how are we going to save dollars to a moral question of how are we going to save lives,” Brooke said. “It is a bit tilting at windmills, and some of my colleagues give me a hard time about it. I’ve fought a traffic ticket once. This is a lot more complicated than that.”

His first courtroom appearance, in October, made him nervous. Brooke, who works from home, wears a mask when he goes out in public but wasn’t accustomed to presenting arguments for long periods of time with a face covering. His glasses got fogged up, making him even more nervous. He’s since experimented with different masks and got some new contacts so he’ll be ready for the next hearing in April.

“Ordinarily, the person who has themselves for a client, the person who doesn’t hire an attorney, has a fool for a client,” Brooke said. “But in this particular instance, I thought that it would help. Also, I’m kind of cheap. I was willing to throw away $250 on (filing) this if I’m wrong, but I’m not usually wrong about this kind of thing.”

Brooke said the judge and opposing attorneys have been respectful and understanding of his lack of courtroom experience.

“Everything I’ve talked about with the court has been very laser-focused on the law,” Brooke said. “I’ve done no ethos; I don’t want to whine. I just want to point out this is what the law says, and I want them to follow the law.”

An Email Burden

Wagner’s request was made in the summer of 2019 as part of a research project he was doing with graduate students at Marquette’s journalism school. They requested various records from agencies in 10 states, including about half the sheriff’s offices in Oklahoma.

For the most part, sheriff’s offices across the country complied with the records requests and emailed Wagner the records.

But not Custer County, where then-Sheriff Kenneth Tidwell said nothing in state law compels him to email records to a requester. He offered the records to be inspected at his office in Arapaho. Tidwell and his attorneys said the Open Records Act allows for “for inspection, copying, or mechanical reproduction during regular business hours.”

Tidwell said he resisted emailing the records because doing so could set a precedent for all kinds of requesters making demands of county offices under the Open Records Act. Last summer, Custer County District Judge Jill Weedon agreed, albeit reluctantly. She said it’s up to the Legislature to fix the law.

“The court finds that the ORA does not currently require the sheriff to email a digital copy of the requested documents,” Weedon wrote in her July 23 order. “Obviously, the ORA is due a legislative update. The court agrees with plaintiff that it would be more efficient to produce the requested documents electronically; however, the ORA does not require that the sheriff do so.”

Wagner and his attorney, Kevin Kemper, appealed to the Oklahoma Supreme Court, whichsent the appeal to the Court of Civil Appeals in October.

Wagner said Oklahoma sheriffs weren’t alone when it came to pushing back against requests in the project. Usually, a follow-up phone call or email was enough to shake the records loose in other counties and in other states. Tidwell lost in his GOP primary election last June toDan Day, who took office in January.

“The fact that they’ve received very few requests and the fact that they have emailed records in the past tell you this isn’t about principle,” Wagner said of Tidwell’s office. “This is about them not wanting to be responsive to a professor from Milwaukee.”

A handful of other states, like Virginia, Tennessee andsoon Kentucky, require requesters of open records to be residents of the state. But Oklahoma’s law doesn’t make that distinction. Wagner said even in states with a residency requirement, few agencies bother enforcing it. It’s not hard to find a willing resident to make the request on behalf of those from out of state.

“What’s the purpose of those laws? Is it transparency for everybody or just transparency for a select few,” Wagner asked. “Ultimately we’re making sure we have good, effective governance."