The Governor’s Office and the Oklahoma Department of Public Safety violated the state Open Records Act when they did not respond to a Tulsa World request for records in a “prompt and reasonable” manner, an Oklahoma County district judge ruled last week.
The case involves records requests filed by the Tulsa World and former World editor Ziva Branstetter with the Governor’s Office and DPS within days after Clayton Lockett’s marred execution April 29, 2014. In addition to records related to Lockett’s execution, the lawsuit sought records related to the execution of Charles Warner.
Branstetter is now senior editor for Reveal from The Center for Investigative Reporting.
In a ruling issued Friday, Judge Lisa Tipping Davis said that although the World’s request was not formally denied, “it is uncontroverted that no documents were produced prior to the lawsuit being filed.”
Davis declined to provide an opinion regarding what constitutes appropriate procedures and processes for responding to open records requests but found that “neither the delays nor the process which resulted in the delays in excess of 17 months was prompt or reasonable.”
Tulsa World Executive Editor Susan Ellerbach said she was proud of the persistence and perseverance shown by the World and Branstetter.
“It’s been a very long and arduous process for all involved,” Ellerbach said. “But the question was whether or not our government officials responded correctly to our Open Records request and the fact is they did not.”
Branstetter said the ruling sets an important standard.
“I, as a reporter, have always been very willing to work with agencies that are making a good-faith effort to comply,” she said. “But it was clear in this case that they were just trying to run out the clock.
“I feel like this case sets a really important precedent that public officials in Oklahoma can’t just run out the clock and sit on requests.”
Michael McNutt, communications director for the governor’s office, said Gov. Mary Fallin has yet to determine whether she would appeal the ruling.
“The governor’s office believes that the amount of time it took to respond to the open records request in light of the 45,000 pages of response, the sensitive subject matter, and the amount of staff available to deal with the request was reasonable,” McNutt said.
The Tulsa World and Branstetter submitted separate open records requests to the governor’s office and to DPS in May 2014, and another request to DPS in September 2014.
Branstetter, BH Media Group and the Tulsa World sued Fallin and then-Public Safety Commissioner Michael Thompson in December 2014 for alleged violations of the state Open Records Act.
The World did not receive any records from DPS until March 2015 — approximately 11 months after the initial request. The Department of Public Safety provided more documents in May 2016, two years after the World’s initial open records request.
The governor’s office, meanwhile, took approximately 17 months to produce any records.
The state Open Records Act requires that public bodies provide “prompt, reasonable access” to its records. The law also states that public bodies “may establish reasonable procedures which protect the integrity and organization of its records and to prevent excessive disruptions of its essential functions.”
Branstetter said she was grateful to the Tulsa World, to Katie Townsend and Adam Marshall with The Reporters Committee for the Freedom of the Press, and to attorney Robert Nelon with Hall Estill for their support and assistance.
“All of them could have bailed, frankly, when we got most of what we needed and we didn’t have a resolution,” she said. “There could have been sort of a half-way resolution that didn’t set a precedent.
“Everyone knew that it was important to keep going and get a ruling that she (Gov. Fallin) was not following the law.”
Ellerbach said one of the most important parts of journalism is to hold those in power accountable for their actions.
“We have achieved that in this case,” she said.
Lockett and Warner were scheduled to be put to death less than two hours apart for unrelated crimes. But Warner’s execution was postponed after officials at the Oklahoma State Penitentiary had problems executing Lockett.
The Department of Public Safety described the execution as a “procedural disaster” that included numerous failed attempts to start an IV, according to documents released to the World in 2016.
The state eventually tried to start an IV in Lockett’s femoral vein, near the groin, but it failed, leaking the lethal drugs into Lockett’s tissue, according to the documents.
The state later determined that that incident was the single biggest failure in Lockett’s execution.
The documents also show that drug syringes weren’t properly labeled, Lockett was never moved to a “high max” cell in the days leading up to his execution, as required by Department of Corrections protocol, and that he had gathered drugs and a utility knife blade inside his cell without prison staff knowing.