Okla. Ass'n of Broadcasters, Inc. v. City of Norman

• Decision Date: 06 November 2016
• Docket Number: Case Number: 113973
• Citation: 2016 OK 119
• Parties: OKLAHOMA ASSOCIATION OF BROADCASTERS, INC., Plaintiff/Appellant, v. CITY OF NORMAN, NORMAN POLICE DEPARTMENT, DISTRICT ATTORNEY OFFICE FOR THE TWENTY FIRST JUDICIAL DISTRICT, Defendants/Appellees.
• Court: Oklahoma Supreme Court

2016 OK 119

OKLAHOMA ASSOCIATION OF BROADCASTERS, INC., Plaintiff/Appellant,
v.
CITY OF NORMAN, NORMAN POLICE DEPARTMENT,
DISTRICT ATTORNEY OFFICE FOR THE TWENTY FIRST JUDICIAL DISTRICT, Defendants/Appellees.

Case Number: 113973

SUPREME COURT OF THE STATE OF OKLAHOMA

Decided: November 6, 2016

NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. ON CERTIORARI FROM THE COURT OF CIVIL APPEALS, DIVISION II

¶0 On October 30, 2014, Plaintiff filed a request under the Open Records Act, 51 O.S.2011, § 24A.8(A), for a video of an incident which resulted in a criminal defendant voluntarily appearing in district court for an arraignment hearing, being ordered to the custody of his attorney and to the Sheriff's department. Defendants denied the request. Plaintiff filed petition for declaratory judgment, injunctive relief, and mandamus. Defendants filed motions to dismiss. District Court, the Honorable Thad Balkman, presiding, granted the motion. Plaintiff appealed. The Court of Civil Appeals affirmed in part, reversed in part, and remanded the proceedings. Plaintiff petitioned for certiorari, which this Court granted and ordered additional briefs.

COURT OF CIVIL APPEALS' OPINION VACATED IN PART;
JUDGMENT REVERSED; CAUSE REMANDED WITH INSTRUCTIONS.

David McCullough and S. Douglas Dodd, Doerner, Saunders, Daniel & Anderson, LLP, Tulsa and Norman, Oklahoma, for Appellant.

Jeff H. Bryant, Rickey J. Knighton II, Jeanne M. Snider, and Kristina L. Bell, Office of the City Attorney, Norman, Oklahoma, for Appellees City of Norman and Norman Police Department.

Greg Mashburn, Carol Price Dillingham, James B. Robertson, and Heather Darby, Office of the Cleveland County District Attorney, Norman, Oklahoma, for Appellee District Attorney Office for Twenty First Judicial District of Oklahoma.

Taylor, J.,

¶1 Section 24A.8(A) of the Open Records Act (the Act), 51 O.S.2011, § 24A.8(A)(2), required law enforcement agencies "to make available for public inspection . . . [f]acts concerning [an] arrest, including the cause of arrest and the name of the arresting officer . . . ." The questions presented to this Court are whether there was an arrest in the underlying criminal proceeding for purposes of the Act and whether the Act entitles Plaintiff to a copy of a surveillance video depicting the cause of the arrest. We answer in the affirmative.

I. STANDARD OF REVIEW

¶2 Although a judgment granting a motion to dismiss is subject to de novo review, Estate of Hicks v. Urban East, Inc., 2004 OK 36, ¶ 5, 92 P.3d 88, 90, a motion to dismiss will be treated as one for summary judgment when matters outside the pleadings are presented and not excluded. 12 O.S.2011, § 2012(B). Here, Defendants presented a record in a criminal case and provided a video recording at the hearing on the motion to dismiss. The district court, rather than exclude the video, made it part of the record and ordered it to be preserved. The district court implicitly treated the motion to dismiss as one for summary judgment.

¶3 We review a summary judgment under a de novo standard as it presents a question of law. Pickens v. Tulsa Metro. Ministry, 1997 OK 152, ¶ 7, 951 P.2d 1079, 1082. If it appears that there is no substantial issue of material fact and that one party, including the non-moving party, is entitled to judgment as a matter of law, a court shall render judgment for that party. Rules for District Courts of Oklahoma, 12 O.S.2011, ch. 2, app., r. 13(e).

II. FACTS

¶4 On July 25, 2014, a Norman, Oklahoma restaurant's surveillance video captured an incident depicting Joe Mixon striking a female. The Norman Police Department (Department) was called to the location, investigated, and obtained and reviewed the surveillance video. On Friday, August 15, 2014, a Department detective filed an affidavit of probable cause seeking an arrest warrant for Mixon. The detective stated probable cause existed based on interviews completed by other officers, injuries sustained by the victim, and the surveillance video of the incident which he described in detail. The same day, the Cleveland County District Attorney (District Attorney) filed a criminal information, referencing the same incident number as the probable cause affidavit and alleging that Mixon committed the misdemeanor crime of Acts Resulting in Gross Injury, 21 O.S.2011, § 22, when he struck the female. On August 18, 2014, Mixon voluntarily appeared in district court to answer the charge and was arraigned. At the same time, the district court ordered Mixon to be processed by the Cleveland County Sheriff's Department and to remain in custody pending his posting a bond.

¶5 Also on August 18th, KWTV News 9, a member of the Oklahoma Association of Broadcasters (Association), requested a copy of the surveillance video from Department and District Attorney, referencing the Act, 51 O.S.2011, §§ 24A.1-29. On September 3, 2014, the City Attorney for the City of Norman (City) emailed KWTV News 9 that, barring changes, such as the judge ordering the video sealed, he did "not know of a reason why [Department] would not be willing to make copies of the Mixon video available for public inspection and copying after November 1." Without furnishing copies of the video, on September 4, 2014, Department allowed KWTV News 9 and other media to view the video. Association was not present at this viewing.

¶6 On October 30, 2014, Mixon entered an Alford Plea¹ to the criminal charge. The same day, Association made a request under the Act for a copy of the surveillance video from Defendants and KWTV News 9 renewed its request. District Attorney responded, informing Association that it no longer had the video as it had given the video to the victim. City told KWTV News 9 that Department had delivered a copy of the video to the City Attorney, who placed it in a litigation file.

III. PROCEDURAL HISTORY

¶7 On November 3, 2014, Association filed a petition for declaratory judgment and writ of mandamus, in the Cleveland County District Court, seeking a copy of the video. Department and City filed a joint motion to dismiss which was later joined by District Attorney.² Defendants urged, among other things not preserved for review in this appeal, see Hough, 1993 OK 112, ¶ 1, 867 P.2d at 440, that Section 24A.8(A) only requires Defendants to allow inspection, not to provide a copy of the video. Association filed a response. Defendants filed a reply additionally urging that Section 24A.8(A)(2) only provides access if a criminal defendant was arrested. The Defendants' position was that Mixon was not arrested.

¶8 On February 20, 2015, the district court held a hearing on Defendants' motion to dismiss. The district court ordered in advance that no recording of the hearing would be allowed and that the surveillance video be shown in open court at the hearing. City and Department told the district court that if it reviewed the docket for Mixon's misdemeanor case, the court would see that Mixon "voluntarily appeared to answer for the charge," no arrest warrant was issued, and there was not an arrest. The district court granted Defendants' motion to dismiss stating (1) the video does not depict an arrest or the cause of an arrest; (2) Department is not required to allow copying under the 2011 Act; (3) the Department properly returned the video to its owner; and (4) that Association does not possess a clear legal right to relief for mandamus to be granted. On April 30, 2015, the district court's journal entry ordered "that the subject surveillance video, which is now part of the court record, be preserved."

¶9 Association appealed, raising several issues. However, none of the parties appealed the district court's finding that the video was part of the record in this case or its order that the video "be preserved pending further action by the Plaintiff." The Court of Civil Appeals reversed in part and remanded for further proceedings, finding that there was no arrest triggering a duty to provide access to the surveillance video under Title 51, Section 24A.8(A)(2). The Court of Civil Appeals remanded the proceedings for a determination of whether the public's interest in access to the video outweighs Defendants' reasons for denying access under Title 51, Section 24A.8(B), which provides for a balancing of interest when disclosure is not required under Section 24A.8(A). In dicta, the Court of Civil Appeals found that the video was part of the court's records; but, because the Cleveland County Court Clerk was not a party to the litigation, "a petition for declaratory, injunctive and mandamus relief as against the court clerk" was premature.

¶10 On February 25, 2016, three days after the Court of Civil Appeals issued its opinion and while the matter was still pending in the appellate courts, the district court issued an order reversing its finding that the video was part of the court's record. Association filed a petition asking this Court to assume original jurisdiction and "issue an extraordinary writ directing the [district court] to immediately withdraw [its] February 25, 2016 Order removing a public record from the custody and control of the court clerk in" this matter. Application to Assume Original Jurisdiction, Petition for Extraordinary Writ, and Brief in Support, Okla. Ass'n of Broads., Inc. v. Balkman, No. 114,827 (Okla. March 22, 2016). This Court assumed jurisdiction and prohibited the district court from enforcing the February 25, 2016 order, citing Oklahoma Supreme Court Rule 1.37, 12 O.S.2011, ch. 15, app. 1, and ordering the Association "be allowed to proceed in accordance with the Open Records Act . . . ." Okla. Ass'n of Broads., Inc. v. Balkman, No. 114,827 (Okla. May 9, 2016).

¶11 Association filed a Petition and an Amended Petition for Writ of Certiorari which are substantially identical except for extraneous, irrelevant attachments to the Petition.³ This Court ordered briefs on certiorari...