Attorney: 'Under investigation' is not Open Records Act exemption

Mar. 8—McAlester's city attorney said he initially denied records requests for a January 2023 fatal police shooting because of a pending motion to quash, but city officials listed a different reason for withholding the information in a response to the News-Capital.

The McAlester News-Capital requested all body camera footage and relevant reports from the McAlester Police Department regarding the Jan. 14 fatal police shooting of James Klembara.

John T. Hammons, McAlester's city attorney, said he told city officials to deny the News-Capital's records request because District 18 District Attorney Chuck Sullivan filed a motion to quash it.

"In light of the district attorney's decision to object to the release, we held off until that could be resolved," Hammons said.

The city of McAlester acknowledged receipt of the records request Jan. 16 before denying it two days later — without mentioning the motion to quash or citing a statute as per the Oklahoma Open Records Act.

"At this time, no information in this incident may be released, due to the ongoing investigation," a city of McAlester representative said in a Jan. 18 email. Hammons said he was "not familiar" with the city's response.

Kathryn Gardner, an Oklahoma attorney for The Reporters Committee for Freedom of the Press, said the city's response did not follow Oklahoma's Open Records Act.

"Simply saying something is under investigation, that's not an exemption or exception to the Open Records Act," Gardner said. "It's their obligation to provide you with a reason and citation for that."

51 O.S. §24 A.20 states open records access "shall not be denied because a public body or public official is using or has taken possession of such records for investigatory purposes or has placed the records in a litigation or investigation file."

The Oklahoma State Bureau of Investigation was asked by the McAlester Police Department to investigate the shooting.

OSBI denied a request for its report into the fatal shooting, citing a state law that states OSBI reports are "confidential and shall not be open to the public."

"With regards to records that may be per se open records pursuant to 51 O.S. §24 A.8, the OSBI denied access to copies contained within their investigative file," the OSBI said before quoting 51 O.S. §24 A.20 which states a request can be denied if the records is available for "public inspection and copying at another public body."

Hammons said he did not have any contact with the OSBI in regard to the case.

Legal representatives for the News-Capital filed a response to Sullivan's motion, stating the attempt was a "'nullity' and not a valid use of the phrase in any event" due to no ruling or charges filed in the probe.

Sullivan withdrew the motion during a Jan. 20 court hearing after learning the city denied the request.

When asked why the records were not made available to the newspaper after Sullivan's motion was ruled moot, Hammons said the records needed to be redacted.

"That's why they weren't made available immediately upon that decision," Hammons said. "My assistant has been redacting them ever since."

Video released this week shows officers told Klembara more than 30 times in less than two minutes to put down a rifle, including several times after the man fired a shot into his home's floor. Klembara continued to refuse police commands and raised the rifle before officers fatally shot him, according to body cam video the News-Capital obtained.

Sullivan announced last week that McAlester Police Officer Eli Copeland and Krebs Police Officer Corey Cantrell were justified in the shooting and that he would not pursue charges against them. The DA said he did not make a decision regarding McAlester Police Officer Joseph Barlow, the third officer involved in the shooting, due to his Native American status.

The U.S. Supreme Court's July 2020 in McGirt v. Oklahoma declared Congress never disestablished the Muscogee (Creek) Nation Reservation and a subsequent ruling applied the analysis to the remaining Five Tribes and the Quapaw Nation. The decision meant Oklahoma lost criminal jurisdiction over Native Americans in what is defined by federal statute as "Indian Country."

An MPD incident report states "see statements" in the synopsis area of the report. None were attached.

McAlester Police Chief Kevin Hearod said the involved officers did not speak with MPD investigators that night, but the McAlester officers later spoke with the OSBI with lawyers present.

Hearod said MPD's use of force report the News-Capital requested was not returned because the officers were not on duty to complete one. The police chief said both officers will complete one when they return to duty and will provide the newspaper with a copy once available.

State law allows the redaction of certain portions of records, including scenes that depict nudity, the death of a person, minors, personal information, and other items listed.

The city listed the redactions it made to four videos where photos of minors were visible.

The News-Capital's legal counsel sent a follow-up letter to city of McAlester on Feb. 13, stating the city did not cite a statute and was "obligated to provide the requested information, even if the requested video is redacted," as permitted by state law.

City officials did not respond to the counsel's request until March 1 for an update that the city attorney's assistant was reviewing videos and making allowed redactions.

"Given the district attorney releasing his objection" that he agreed the records were public, Hammons said.

Gardner said the public having access to what happened in these types of situations is important.

"Community members, family members will all turn to whatever source of information they can get to find out what happened, and I think it's so important for public bodies to be able to provide that information directly," Gardner said.