Reporters Committee attorneys help win Oklahoma lawsuit over delayed release of records related to 2014 botched execution

Earlier this month, an Oklahoma judge ruled that the Governor’s Office and the Department of Public Safety (DPS) violated the state’s Open Records Act by failing to provide timely access to records, the first ruling of its kind in the state.

The decision comes in a public records lawsuit filed in December 2014 by journalist Ziva Branstetter and Tulsa World, represented by attorneys from the Reporters Committee for Freedom of the Press, after Governor Mary Fallin’s office and DPS refused to answer requests for public records related to the botched execution of Clayton Lockett. In an effort to shed light on what went wrong during Lockett’s execution, Branstetter, who at the time was an editor for Tulsa World, sought the transcripts of witness interviews conducted as part of the investigation into the execution, as well as emails between state officials about the incident.

Oklahoma’s open records law does not specify how many days a government agency has to respond to such requests, but does require public bodies to provide “prompt, reasonable access” to public records. In her ruling, Oklahoma County District Judge Lisa Tipping Davis found that “neither the delays nor the process which resulted in the delays in excess of 17 months was prompt or reasonable.”

“The judge’s ruling makes clear that Oklahoma’s state officials have a responsibility to provide timely responses when the public requests government records, and that both the Governor’s Office and the Department of Public Safety failed to fulfill that responsibility,” said Katie Townsend, litigation director for the Reporters Committee for Freedom of the Press. “Open records laws exist so that the public can access the information it needs to hold their elected officials accountable for their actions. Government officials can’t simply delay responding to public records requests indefinitely to shield their actions — in this case, how the state planned for and responded to an execution that went terribly wrong — from scrutiny.”

During the lawsuit, Governor Fallin and Commissioner Michael Thompson, the head of DPS,  argued that because they had not expressly denied Branstetter’s request for public records — they simply had not yet responded — the court did not have jurisdiction to hear the case. A trial court judge rejected their arguments and denied the motions to dismiss, ruling that a delay in responding to a public records request could amount to a denial of access to the information sought, and that the courts had the power to determine whether the delay was prompt and reasonable. Governor Fallin and Commissioner Thompson appealed that decision to the Oklahoma Supreme Court, which unanimously denied their application for review, leaving the trial court’s ruling in effect and allowing the case to move forward.

The documents that were eventually released showed that due to an IV failure during the execution, the lethal injection drugs leaked into Lockett’s tissue instead of his bloodstream. The state halted the procedure when it discovered the issue, and Lockett ultimately died of a heart attack 43 minutes after the state had administered the drugs. The documents also revealed that drug syringes weren’t properly labeled, the prison staff felt pressured by two executions scheduled on one night, and that a “third choice” doctor said he received no training other than being told he would pronounce death.

During the course of the lawsuit, it was also revealed that Governor Fallin and members of her staff had conducted official state business using private, non-governmental email accounts, which had not been searched in response to Branstetter’s records request. In 2017, three years after the lawsuit was filed, the governor finally searched her private email account for responsive records after Branstetter and Tulsa World filed a motion to compel her to do so.

Court filings related to the case can be found on the Reporters Committee’s website. Attorney Bob Nelon of Hall Estill also represented the plaintiffs in the case and served as local counsel.