New ORA Lawsuit of Interest/Concern
All,
There's a new ORA lawsuit that was filed a few weeks ago in Oklahoma County
which might be one that finds its way up on appeal eventually and which
could address some important legal questions related to experts hired by
public entities and the disclosure of records related to the expert under
the ORA. The case is The Sustainable Journalism Foundation, dba NonDoc
Media and William Savage III v. Vicki Kemp Behenna as DA for Okla. Cty,
Oklahoma Co. CV-2024-2074.
Oklahoma County DA Behenna inherited 3 Murder/Manslaughter cases that
former DA Prater had filed against Officers from the Oklahoma City Police
Department and an Officer from The Village Police Department. The Officers
in all 3 cases had argued at their prelims that DA Prater had failed to
establish probable cause to believe they had used legally excessive force
and that Title 22 imposed such a requirement as an elemental burden. The
District Judge in Oklahoma County had rejected the argument. Probably
because that precise issue was pending in a State's appeal from the
quashing of Murder/Manslaughter charges filed against a Blackwell Officer,
those 3 Oklahoma County cases sat basically idle. By the time the Court of
Crims affirmed the quashing of charges against the Blackwell Officer (due
to the DA's failure to establish probable cause to believe the Officer used
excessive force), Behenna had taken office.
DA Behenna hired a California based use of force expert to issue her expert
reports in all 3 pending cases. After receiving his report, Behenna
dismissed all 3 cases. In doing so, Behenna issued a press release in which
she 1) specifically named (and gave background detail) on the use of force
expert she hired to review all 3 cases and 2) quoted at length from the
expert's 3 reports as justification for her dismissal of the cases. NonDoc
submitted an ORA request after Behenna released this information requesting
a copy of the agreement that was executed hiring the expert and also asking
for a copy of the expert reports that Behenna received and quoted in her
press release. Behenna's office denied the request citing 1) the litigation
file exception within the ORA, 2) work product privilege and 3) the
deliberative process privilege.
This would seem to be one that could find its way up on appeal eventually.
If so, and maybe because of some of the rulings we've seen over the last
couple of years from our Supreme Court, I have a little bit of concern
about how the Court might handle this one.
For example, when it comes to the report, it seems like the case should
turn on an analysis for WP privilege and not the ORA. Simply put - either
the expert was truly a consulting expert (and that Behenna's naming him and
quoting at length from his report didn't, in any way, waive that privilege
OR he wasn't a consulting expert, or that he was but Behenna waived any
privilege when she quoted his report at length. Either way, the ruling on
privilege should then settle the ORA case. But would this case give rise to
the Court blurring those lines. The Ross case (involving personnel
records under 24A.7(A)(1)) comes to mind. I'd like to think that the Court
wouldn't try to carve out some exception to the Work Product privilege -
but the facts in this case certainly could entice them to consider it.
Which blends into another concern - Plaintiffs' counsel is asking the Court
to adopt a Ross like approach - essentially arguing that, even if the
Court finds that one or more privileges from disclosure would apply it
should nevertheless order the materials to be produced because, they argue,
there should be a balancing test applied with the publics interest in
disclosure overcoming the application of the privilege(s) from disclosure.
There are sympathetic facts if the Court gets to this point - Behenna
did quote
the expert at length, allowing his words to provide the public
justification for why the charges were being dismissed instead of Behenna
using her own words in the press release. And would it really be so bad if
the report was released (they would argue) seeing as how the charges are
no longer pending and can't be refiled?
Anyways, just thought I'd share that. It's definitely one to keep an eye on.
Matt
Great analysis, Matt. Thanks!
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From: Matt Love via Oama oama@lists.imla.org
Sent: Friday, September 13, 2024 5:47:52 PM
To: OAMA luistserv (OAMA@lists.imla.org) oama@lists.imla.org
Subject: [Oama] New ORA Lawsuit of Interest/Concern
All,
There's a new ORA lawsuit that was filed a few weeks ago in Oklahoma County which might be one that finds its way up on appeal eventually and which could address some important legal questions related to experts hired by public entities and the disclosure of records related to the expert under the ORA. The case is The Sustainable Journalism Foundation, dba NonDoc Media and William Savage III v. Vicki Kemp Behenna as DA for Okla. Cty, Oklahoma Co. CV-2024-2074.
Oklahoma County DA Behenna inherited 3 Murder/Manslaughter cases that former DA Prater had filed against Officers from the Oklahoma City Police Department and an Officer from The Village Police Department. The Officers in all 3 cases had argued at their prelims that DA Prater had failed to establish probable cause to believe they had used legally excessive force and that Title 22 imposed such a requirement as an elemental burden. The District Judge in Oklahoma County had rejected the argument. Probably because that precise issue was pending in a State's appeal from the quashing of Murder/Manslaughter charges filed against a Blackwell Officer, those 3 Oklahoma County cases sat basically idle. By the time the Court of Crims affirmed the quashing of charges against the Blackwell Officer (due to the DA's failure to establish probable cause to believe the Officer used excessive force), Behenna had taken office.
DA Behenna hired a California based use of force expert to issue her expert reports in all 3 pending cases. After receiving his report, Behenna dismissed all 3 cases. In doing so, Behenna issued a press release in which she 1) specifically named (and gave background detail) on the use of force expert she hired to review all 3 cases and 2) quoted at length from the expert's 3 reports as justification for her dismissal of the cases. NonDoc submitted an ORA request after Behenna released this information requesting a copy of the agreement that was executed hiring the expert and also asking for a copy of the expert reports that Behenna received and quoted in her press release. Behenna's office denied the request citing 1) the litigation file exception within the ORA, 2) work product privilege and 3) the deliberative process privilege.
This would seem to be one that could find its way up on appeal eventually. If so, and maybe because of some of the rulings we've seen over the last couple of years from our Supreme Court, I have a little bit of concern about how the Court might handle this one.
For example, when it comes to the report, it seems like the case should turn on an analysis for WP privilege and not the ORA. Simply put - either the expert was truly a consulting expert (and that Behenna's naming him and quoting at length from his report didn't, in any way, waive that privilege OR he wasn't a consulting expert, or that he was but Behenna waived any privilege when she quoted his report at length. Either way, the ruling on privilege should then settle the ORA case. But would this case give rise to the Court blurring those lines. The Ross case (involving personnel records under 24A.7(A)(1)) comes to mind. I'd like to think that the Court wouldn't try to carve out some exception to the Work Product privilege - but the facts in this case certainly could entice them to consider it. Which blends into another concern - Plaintiffs' counsel is asking the Court to adopt a Ross like approach - essentially arguing that, even if the Court finds that one or more privileges from disclosure would apply it should nevertheless order the materials to be produced because, they argue, there should be a balancing test applied with the publics interest in disclosure overcoming the application of the privilege(s) from disclosure. There are sympathetic facts if the Court gets to this point - Behenna did quote the expert at length, allowing his words to provide the public justification for why the charges were being dismissed instead of Behenna using her own words in the press release. And would it really be so bad if the report was released (they would argue) seeing as how the charges are no longer pending and can't be refiled?
Anyways, just thought I'd share that. It's definitely one to keep an eye on.
Matt
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