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FOI Columns
Return to The FOI Center
May-June 2003
Paper intervenes in case to argue for public database
by Ziva Branstetter
An announcement that the city of Tulsa and a group of black officers had agreed to settle a federal discrimination lawsuit following eight years of litigation was welcome news in Tulsa.
But the devil, as it turns out, was in the details of a protective order proposed as part of the settlement. While the settlement would cost the city an estimated $6 million to implement, a massive database to track police contacts with the public and most other information generated by the settlement would not be available to the public under the protective order.
Seeking to protect the public's right to know, the Tulsa World requested to intervene in the federal case and its efforts are apparently paying off. The federal judge overseeing the case ordered the city to take part in a settlement conference with the newspaper. As projects editor for the newspaper, I took part in settlement talks last month with attorneys for the city and most of the disputes regarding public access were resolved. One remaining issue is before the judge.
Joe Worley, executive editor of the Tulsa World, said the case is an example of how newspapers can make a difference before it's too late. In some federal cases, such protective orders are signed and approved before the press has a chance to object.
"We believe the city has a duty to make these records open so that the public can have some way to gauge whether its elected officials are carrying out their promises. This is an important public interest case involving the expenditure of millions of tax dollars,'' Worley said.
Tracking compliance
A group of black police officers filed the suit in 1994 claiming discrimination in hiring and promotions by the Tulsa Police Department. The officers, known as the Black Officers Coalition, were granted class-action status.
In December, the city and the plaintiffs announced a proposed settlement, with both sides hailing it as a new beginning for the divided police force. The agreement, which still must be approved by U.S. District Judge Sven Erik Holmes, calls for the city to undertake a number of training and hiring initiatives.
It also requires the city to establish a database that will track arrests and other police stops, internal affairs investigations, complaints, civil suits, use of force and other issues by race of officer and citizen involved.
An auditor would be hired at city expense to oversee compliance while a dispute resolution committee would encourage settlement of disagreements between the city and the plaintiffs.
Under the city's proposed protective order, the database would not be public and neither the auditor nor the dispute resolution committee would be subject to the state's open records and open meetings acts. That order seemed to contradict itself by stating that it was not intended to restrict records already open under the state's Open Records Act. Many of the records in the database were already open under the state's act, which includes computerized records in its definition of a public record.
Because much of my job involves obtaining and analyzing databases of public records, I realized how the protective order would hamstring our ability to follow progress of the settlement. My editors asked me to study the order and help our attorney write an alternative proposal, which was filed with the court in a request for a hearing.
During a hearing before Holmes in February, Attorney J. Schaad Titus, representing the Tulsa World, argued that the city's proposal would violate the First Amendment. As a witness for the newspaper, I told the judge that the protective order, as written, would leave the public with no way to track compliance with the terms of the proposed settlement. I cited other public interest cases in Oklahoma where court monitors provided public reports.
Valuable tools
A proposed protective order submitted by the newspaper makes most of the database public and requires the city to design it to facilitate access to open records. The state's Open Records Act does not require agencies to create new records, a loophole some agencies have used to deny requests for redacted versions of computer databases. Reports of the auditor and agendas of the dispute resolution committee also would be public under the newspaper's proposal.
Clearly private information ,such as officers' Social Security numbers and most personnel records, would remain private under the newspaper's proposal.
Titus said the World's proposed protective order "will allow us an ample opportunity to inform the public about what is happening during the course of this consent decree.''
"A blanket protective order was in place during the entire term of discovery of the case. Because nearly every document in the case was designated as confidential, we were never able to track the case.''
An attorney for the city protested to the judge that designing the database to facilitate public access may not be the most cost-efficient approach for the city. Holmes replied that he could save the city a lot of money if it didn't have to comply with the First Amendment or the Oklahoma Open Records Act.
Holmes is expected to rule on the proposed protective order and the settlement in coming weeks. The city's police union has objected to the settlement and is almost certain to appeal.
If the settlement is approved, the press and the public will have valuable tools to track the city's compliance with it. In the end, greater openness by the city, now matter how grudgingly it was granted, will give the public more confidence in its government.
Ziva Branstetter is the projects editor of the Tulsa World, where she writes and edits investigative and computer-assisted projects and stories. She has been an editor and reporter at The Philadelphia Daily News and The Tulsa Tribune.
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