The failure to produce a videotape may land you with an Open Records Act violation and a mandate to pay $41,000 in legal fees. Following an Order of the Oklahoma Court of Civil Appeals declaring that a “dash cam” video is a “record” under the Oklahoma Open Records Act (the “Act”), a Rogers County District Court Judge declared that the City of Claremore must pay in excess of $41,000 for its violation of the Act. At issue in the case was the City’s position that the video was not a “record” as that term is defined in the Act. Matt Ballard, of the law firm Rosenstein Fist & Ringold and son of Tulsa Superintendent, Keith Ballard, represented the City of Claremore and took the position that videotapes, such as the “dash cam” are evidentiary and subject to exemption under the Act. In refuting such an assertion, the Court (citing Citizens Against Taxpayer Abuse, Inc. v. City of Okla. City, 2003 OK 65, 73 P.3d 871) held that Oklahoma law is well-settled in that:
“Unless a record falls within a statutorily prescribed exemption in the [Open Records] Act, the record must be made available for public inspection. The public body urging an exemption has the burden to establish the applicability of such exemption.”
The term “record” is defined by the Act to include audio and video records “created by, received by, under the authority of, or coming into the custody, control or possession of public officials, public bodies, or their representatives in connection with the transaction of public business.” 51 O.S. §24A.3(1). Clearly, a videotape is a record unless it may fall within an exemption in federal or state law. Fatal to the City’s position in the instant matter, the videotape was not within any exemption in law.
“What is the penalty?” one might ask, for violating the Act? The Act, at 51 O.S. §24A.17(B) provides that any person denied access to a public record and who successfully brings a civil action for relief is entitled to attorney fees. In the instant case, a Rogers County District Court Judge ruled last Friday that the City of Claremore is required to pay the Plaintiffs a total of $41,324.25. Additionally, a willful violation of the Act will land: (1) a fine not exceeding $500; or, (2) imprisonment in the county jail for a period not exceeding one (1) year; or, (3) by both such fine and imprisonment. See 51 O.S. §24A.17.
In recent years, the question has presented itself of whether a school bus video may be withheld from public inspection on the basis that release of the video violates students’ FERPA rights. While never directly addressed in Oklahoma, courts in other states appear to be split. In West Virginia, the Court has held that videotapes from school buses are within the scope of FERPA, as they are “education records” and cannot be released without prior parental consent of the student(s) appearing in the tape. See West Virginia Newspaper Pub. Co. v. Monongalia County Bd. Of Educ., 2006 WL 4634008, (W.Va.Cir.Ct 2006). In New York, the Supreme Court has held that a student involved in an altercation on a school bus, which was videotaped, has due process rights which are greater than the school’s asserted interest in withholding the video. See Rome City Sch. Dist. Disciplinary Hearing v. Grifasi, 10 Misc.3d 1034, 806 N.Y.S.2d 381. Finally, the USDE Family Compliance Office has leaned towards a school withholding the videotape so as to not violate FERPA. The takeaway here? Before finding yourself in a legal battle that can cost your school system upwards of $45,000 or more, consult independent legal advice and weigh the competing interests of student privacy v. the public right to know.