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Oklahoma

Open Courts Compendium

Author

Robert D. Nelon, Jon Epstein, Lindsay N. Kistler
Hall Estill Hardwick Gable Golden & Nelson
100 North Broadway, Suite 2900
Oklahoma City, OK 73102
(405) 553–2828 (telephone)
(405) 553–2855 (facsimile)
www.hallestill.com

Last updated Feb. 2018

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I. Introduction: Access rights in the jurisdiction

A. The roots of access rights

Even before Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980), the Oklahoma Court of Criminal Appeals had recognized the presumptive openness of judicial proceedings and the functional values served by openness in Lyles v. State, 1958 OK CR 79, 330 P.2d 734 (rejecting claim of appellant that television coverage of trial had denied him a fair trial), and Neal v. State, 1948 OK CR 26, 192 P.2d 294 (exclusion of public from trial was prejudicial error).  Richmond Newspapers and the Press–Enterprise cases have been cited and applied by the Oklahoma courts in a variety of contexts.  Seee.g., Ynclan v. Woodward, 2010 OK 29, 237 P.3d 145 (citing Richmond Newspapers for importance of open judicial proceeding, but finding due process does not require that either parent have access to transcript of in camera interview of children in custody trial); Nichols v. Jackson, 2001 OK CR 35, 38 P.3d 228 (citing Press–Enterprise Co. v. Superior Court of Cal., 478 U.S. 1 (1986) (Press Enterprise II) for presumption of openness of criminal proceedings, and holding that closure of any aspect of the proceedings must be based on clearly articulated and specific findings that balance the rights of the accused and the public); Reeves v. State, 1991 OK CR 101, 818 P.2d 495 (citing Richmond Newspapers and Press–Enterprise Co. v. Superior Court of Cal., 464 U.S. 501 (1984) (Press–Enterprise I) for importance of public trials, but holding exclusion of public during testimony of minor victim of molestation did not abridge defendant’s rights); Shipman v. State, 1982 OK CR 3, 639 P.2d 1248 (relying on Richmond Newspapers to hold that criminal defendant could not exclude public from trial to prevent alleged harassment of witnesses).  See also In the Matter of the Application of Spilman, 2010 OK 70, 240 P.3d 702 (citing Richmond Newspapers and Press–Enterprise I as constitutional underpinning for public’s right to know about disciplinary proceedings in case where court denied reinstated lawyer’s request that bar proceedings be sealed and expunged) (V.C.J. Taylor and J. Opala, concurring); Collier v. Reese, 2009 OK 86, 222 P.3d 966 (citing Richmond Newspapers and Press–Enterprise II for functional values of open judicial proceedings) (J. Opala, concurring); Reynolds v. Beacon Well Services, Inc., 1993 OK 104, 857 P.2d 74 (citing Richmond Newspapers and Press–Enterprise I for openness of judicial proceedings) (JJ. Wilson, Opala, Kauger, dissenting from majority decision that litigant did not have right to have court reporter transcribe administrative process of initial qualifications and excusals of civil jury panel); Oklahoma Pub. Co. v. Martin, 1980 OK 153, 618 P.2d 944 (citing Richmond Newspapers as support for statute requiring that mental competency hearings in criminal cases be open to public and media).

In Wright v. Grove Sun Newspaper Co., Inc., 1994 OK 37, 873 P.2d 983, the court concluded that accurate media accounts of a district attorney’s press conference were subject to a common–law fair report privilege.  In support of its conclusion, the court cited Richmond Newspapers for the proposition that openness and publicity enhance the public’s confidence in the administration of a legal system.

Oklahoma does not have express statutory provisions comparable to Fed. R. Civ. P 43(a) or 77(b).  However, Okla. Stat. tit. 22, §13 provides that the defendant in a criminal case is entitled to a speedy and public trial; there are also random statutes making reference to open court proceedings.  For example, Okla. Stat. tit. 22, §§ 973–974 permit either prosecution or defense to present evidence of aggravating or mitigating circumstances after the defendant has entered a guilty plea, and § 974 says the evidence “must be presented by the testimony of witnesses examined in open court.”  In general, records filed in court proceedings are subject to the Oklahoma Open Records Act, Okla. Stat. tit. 51, §§ 24A.1 et seq., see Nichols v. Jackson, 2002 OK 65, 55 P.3d 1044, and can be obtained simply by asking for them.

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B. Overcoming a presumption of openness

Oklahoma cases have recognized that the presumption of openness is merely a presumption; the right of the public to access to judicial proceedings or records is not absolute and can be overcome by narrowly drawn restrictions supported by compelling reasons.  Seee.g., Nichols v. Jackson, 2002 OK 65, 55 P.3d 1044; Nichols v. Jackson, 2001 OK CR 35, 38 P.2d 228; Reeves v. State, 1991 OK CR 101, 818 P.2d 495; Shipman v. State, 1982 OK CR 3, 639 P.2d 1248.

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C. Procedural prerequisites to closure

Reeves v. State, 1991 OK CR 101, 818 P.2d 495, cited Press–Enterprise I for the proposition that any closure of proceedings has to be based on specific findings supporting narrowly drawn restrictions.  Oklahoma courts have not squarely addressed issues regarding the nature and form of public notice that must be given prior to closure.

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II. Procedure for asserting right of access to proceedings and records

A. Media standing to challenge closure

Oklahoma courts have implicitly recognized the standing of the media to challenge closure of proceedings or denial of access to judicial documents in both civil and criminal proceedings without detailed analysis of the procedure involved.  Seee.g., Nichols v. District Court of Oklahoma County, 2000 OK CR 12, 6 P.3d 506 (reversing decision of trial court to permit television coverage of preliminary hearing without any discussion of media’s standing to request electronic coverage).  The media have sometimes been permitted to intervene as in Shadid v. Hammond, 2013 OK 103, 315 P.3d 1008 (intervention permitted to seek access to divorce records), and World Publishing Co. v. White, 2001 OK 48, 32 P.3d 835 (intervention permitted to seek disclosure of juvenile records).

As a practical matter, in most cases the media pressing for access have relied on the following federal cases for their standing argument: United States v. McVeigh, 119 F.3d 806 (10th Cir. 1997) (media had standing to move for order unsealing court documents, and to have order denying motion reviewed by mandamus); Journal Pub. Co. v. Mechem, 801 F.2d 1233 (10th Cir. 1986) (media had standing to seek mandamus from trial court’s denial of informal request for post-trial interviews of jurors); U.S. v. McVeigh, 918 F. Supp. 1452 (W.D. Okla. 1996) (media motions to unseal court records recognized even though media not parties to suit). In numerous unreported cases, primarily at the district court level, the courts have shown little concern for procedural niceties and have allowed the media to raise the access issue by motion.

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B. Procedure for requesting access in criminal cases

Mandamus was used directly in the appellate courts to raise the issue of access to hearings concerning immunity of grand jury witnesses in In re Proceedings of Multicounty Grand Jury, 1993 OK CR 12, 847 P.2d 812.

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C. Procedure for requesting access in civil matters

In numerous unreported cases, primarily at the district court level, the courts have shown little concern for procedural niceties and have allowed the media to raise the access issue by motion.

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D. Obtaining review of initial court decisions

Appellate review of access decisions has generally been by writ of mandamus. See, e.g., World Publishing Co. v. White, 2001 OK 48, 32 P.3d 835; Nichols v. District Court of Oklahoma County, 2000 OK CR 12, 6 P.3d 506; In re Proceedings of Multicounty Grand Jury, 1993 OK CR 12, 847 P.2d 812. In Collier v. Reese, 2009 OK 86, 222 P.3d 966, an order of the trial court sealing all polygraph–related documents in a civil assault and battery case and prohibiting the dissemination of polygraph information by anyone to anyone was reviewed as an appealable interlocutory order akin to an injunction.

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III. Access to criminal proceedings

A. In general

Oklahoma courts recognize and apply the precepts of Richmond Newspapers and the Press–Enterprise cases in criminal proceedings.  Seee.g., Nichols v. Jackson, 2002 OK CR 65, 55 P.3d 1044 (citing Press Enterprise II for presumption of openness of criminal proceedings); Nichols v. Jackson, 2001 OK CR 35, 38 P.3d 228 (citing Press–Enterprise II for presumption of openness of criminal proceedings, and holding that closure of any aspect of the proceedings must be based on clearly articulated and specific findings that balance the rights of the accused and the public); Reeves v. State, 1991 OK CR 101, 818 P.2d 495 (citing Richmond Newspapers and Press–Enterprise I for importance of public trials, but holding exclusion of public during testimony of minor victim of molestation did not abridge defendant’s rights); Shipman v. State, 1982 OK CR 3, 639 P.2d 1248 (relying on Richmond Newspapers to hold that criminal defendant could not exclude public from trial to prevent alleged harassment of witnesses).

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B. Pretrial proceedings

Mental competency hearings or jury trials in connection with criminal proceedings are open to the public to the same extent as criminal trials.  Okla. Pub. Co. v. Martin, 1980 OK 153, 618 P.2d 944.  On the other hand, hearings concerning the immunity of grand jury witnesses can be closed to the public and media.  In re Proceedings of Multicounty Grand Jury, 1993 OK CR 12, 847 P.2d 812.

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C. Criminal trials

Although recognizing the principles of Richmond Newspapers, decisions of trial courts have been upheld in closing the trial to the public during the testimony of minor victims of sexual offenses, seee.g., Reeves v. State, 1991 OK CR 101, 818 P.2d 495; Davis v. State, 1986 OK CR 148, 728 P.2d 846.  But see Shipman v. State, 1982 OK CR 3, 639 P.2d 1248 (no error in refusing to close courtroom to public during testimony of defense witness to prevent alleged harassment of witness).

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D. Post-trial proceedings

Post-trial proceedings are presumptively open.  Convictions have been affirmed and defendants’ claims that they were prejudiced by the presence of the media during sentencing have generally been rejected.  See Brennan v. State, 1988 OK CR 297, 766 P.2d 1385; Kennedy v. State, 1982 OK CR 11, 640 P.2d 971.

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E. Appellate proceedings

IV. Access to criminal court records

A. In general

In general, records filed in court proceedings are subject to the Oklahoma Open Records Act, Okla. Stat. tit. 51, §§ 24A.1 et seq., see Nichols v. Jackson, 2002 OK 65, 55 P.3d 1044, and can be obtained simply by asking for them.

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B. Arrest records

Arrest records are public pursuant to the Oklahoma Open Records Act, Okla. Stat. tit. 51, § 24A.8(A). They are routinely provided by law enforcement agencies on request.

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C. Dockets

Dockets in all state civil, criminal, and appellate cases are readily available to the public through the Oklahoma State Courts Network, www.oscn.net.

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Search warrants and supporting affidavits are presumptively open, and can be sealed from public access only if there is a compelling need, less restrictive means (such as redaction) are considered, and access is denied for no more than a reasonable time.  Sloan v. Sprouse, 1998 OK CR 56, 968 P.2d 1254.

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E. Discovery materials

F. Pretrial motions and records

G. Trial records

H. Post-trial records

I. Appellate records

J. Other criminal court records issues

In Nichols v. Jackson, 2002 OK 65, 55 P.3d 1044, the defendant in the state prosecution arising from the Oklahoma City bombing in 1995 asked the court to seal all records regarding the fees and expenses paid to his court-appointed counsel.  The court allowed selective sealing of those pretrial records that would tend to reveal defense strategy (such as specific travel destinations, fees paid to prospective expert witnesses, etc.) but required all other records of expenditures to be open to the public.

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V. Access to civil proceedings

A. In general

Civil proceedings are presumptively open to the public, but the right of access is not absolute. See Collier v. Reese, 2009 OK 86, 222 P.3d 966; Nichols v. Jackson, 2002 OK 65, 55 P.3d 1044.

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B. Pre-trial proceedings

C. Trials

D. Post-trial proceedings

E. Appellate proceedings

VI. Access to civil records

In general, records filed in court proceedings are subject to the Oklahoma Open Records Act, Okla. Stat. tit. 51, §§ 24A.1 et seq., see Nichols v. Jackson, 2002 OK 65, 55 P.3d 1044, and can be obtained simply by asking for them.

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A. In general

The Oklahoma Open Records Act specifically provides, Okla. Stat. tit. 51, §§ 24A.30, that “[a]ll court records . . . shall be considered public records and shall be subject to the provisions of the Oklahoma Open Records Act, unless otherwise identified by statute to be confidential.”  Section 24A.30 goes on to provide that a court may seal a record or portion of a record only if “a compelling privacy interest exists which outweighs the public’s interest in the record.”  If a court intends to seal some or all of a record, it must make findings of fact which identify the facts on which the court relies; make conclusions of law specific enough to allow the public to know the basis for sealing the record; use the least restrictive means of achieving confidentiality; and narrowly tailor the sealing to only those portions of the record which are determined to be confidential, leaving the balance of the record open.  Okla. Stat. tit. 12, § 32.1 defines “court record” in civil cases to include “the petition, the process, return, the pleadings subsequent thereto, reports, verdicts, orders, judgments, and all material acts and proceedings of the court.”

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B. Dockets

Dockets in all state civil, criminal, and appellate cases are readily available to the public through the Oklahoma State Courts Network, www.oscn.net.

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C. Discovery materials

In dictum in Collier v. Reese, 2009 OK 86, 222 P.3d 966, the court observed that orders limiting or prohibiting dissemination of information obtained in discovery were not the same classic prior restraint orders that required exacting constitutional scrutiny (citing Seattle Times Company v. Rhinehart, 467 U.S. 20, 33 (1984)). Local federal and state court rules generally provide that discovery materials are not to be filed with the court unless some specific matter needs to be brought to the attention of the court, e.g., discovery materials are attached to a motion for summary judgment. Thus, as a general rule, discovery materials are not going to be a “record” subject to the Oklahoma Open Records Act.  In addition, although patterned after Fed. R. Civ. P. 26(c), the Oklahoma statute on protective orders in civil discovery, Okla. Stat. tit. 12, § 3226(C), expressly allows (in subsection 7) a party to seek a protective order removing materials from the public record.  A party wishing to do so may identify the parties with pseudonyms in the petition (complaint) and apply to the court for an order removing the case, in whole or in part, from the public record.  The limits on the circumstances in which a party may invoke subsection 7 have not been tested in appellate decisions.

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D. Pre-trial motions and records

In Collier v. Reese, 2009 OK 86, 222 P.3d 966, the plaintiff in a civil assault and battery case filed a motion to seal all portions of the record which disclosed the results of a polygraph test taken by the defendant (which purportedly supported the defendant’s claim that he had not shouted racial slurs that started the fight between the parties) and to prevent the defendant or his counsel from making extrajudicial statements to the media about the polygraph results.  The Oklahoma Supreme Court held that the trial court abused its discretion in sealing the record because the order was not narrowly tailored to prevent any impact on the fair trial rights of the defendant in a related criminal case, and in prohibiting any extrajudicial discussion of the polygraph results, a part of the order the appellate court determined was an unconstitutional prior restraint on speech.

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E. Trial records

F. Settlement records

G. Post-trial records

H. Appellate records

I. Other civil court records issues

In general, records filed in court proceedings are subject to the Oklahoma Open Records Act, Okla. Stat. tit. 51, §§ 24A.1 et seq., see Nichols v. Jackson, 2002 OK 65, 55 P.3d 1044, and can be obtained simply by asking for them.  Dockets in all state civil, criminal, and appellate cases are readily available to the public through the Oklahoma State Courts Network, www.oscn.net. In many civil cases, documents filed with the court clerk are scanned and can be downloaded for free.

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VII. Jury and grand jury access

A. Access to voir dire

B. Juror identities, questionnaires and other records

Okla. Stat. tit. 22, § 853.1 allows a judge in either a civil or criminal proceeding to issue a protective order on the motion of a party, or any affected person, or on its own initiative regulating the disclosure for a stated period of the identity and home and business addresses of any prospective or sworn juror if the court determines there is a likelihood of bribery, jury tampering, or of physical injury or harassment of the juror.

Oklahoma Uniform Jury Instruction (Civil)–3d 1.2A and Oklahoma Uniform Jury Instruction (Criminal)–2d 1–10 require jurors to complete a confidential jury questionnaire to be used by counsel in preparing for voir dire.  The original questionnaires of jurors questioned during voir dire are sealed after voir dire; they are retained as part of the trial record but are not public.  The original questionnaires of jurors not questioned during voir direand copies of questionnaires of all jurors are to be destroyed on conclusion of the jurors’ service and are not part of the public record.  See In re Adoption of the 2007 Revisions to the Oklahoma Uniform Jury Instructions, 2007 OK CR 5, 163 P.3d 567; Rule 1.3(C), Rules of the Court of Criminal Appeals, 2008 OK CR 5; Cohee v. State, 1997 OK CR 30, 942 P.2d 211.  Jury questionnaires are routinely used in civil cases, although there is no statutorily–prescribed or universally accepted form of questionnaire.  Under Rule 32, Rules for District Courts, juror questionnaires in civil cases are treated the same as questionnaires in criminal cases under Rule 1.3(C), Rules of the Court of Criminal Appeals.

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C. Grand jury proceedings and records

In In re Proceedings of Multicounty Grand Jury, 1993 OK CR 12, 847 P.2d 812, the court commented that “Oklahoma law concerning the secrecy of grand jury proceedings is not well developed,” but that grand jury proceedings were historically “conducted in, and surrounded by, secrecy.”  The court referred to criminal procedure statutes that implied a “general tenor of secrecy.”  The court specifically held that the public and media could be excluded from proceedings regarding grand jury witness immunity.  In Oklahoma Publishing Co. v. District Court of Oklahoma County, 1976 OK 145, 555 P.2d 1286, rev’d on other grounds, 430 U.S. 308 (1977), the court said that the media did not enjoy a constitutional right of access to proceedings and places where the public was traditionally excluded, mentioning specifically grand jury proceedings, among others.

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D. Interviewing jurors

Of course, the media are prevented from communicating with jurors during the course of the trial.  In both civil and criminal cases, jurors are instructed upon their discharge that “[t]he question may arise whether you are free to discuss this case with anyone.  That is entirely your decision.”  Oklahoma Uniform Jury Instruction (Civil)–3d 1.8; Oklahoma Uniform Jury Instruction (Criminal) 10–12.  Grand jury witnesses are commonly thought to be free to discuss their testimony after being discharged.

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VIII. Proceedings involving minors

In World Publishing Co. v. White, 2001 OK 48, 32 P.3d 835, the court resolved the issue of access to certain juvenile records on statutory grounds and said that it did not need to address any constitutionally-based arguments for access.  The court did note that “the First Amendment does not guarantee a presumption of openness and access to juvenile proceedings and the records generated pursuant thereto.” However, citing Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607 (1982), the court said that “an across–the–board ban on access to juvenile proceedings poses a substantial constitutional issue.”  Thus, at present, whether proceedings involving minors are open to the public is generally governed by statute, and the results are mixed.  For example, a proceeding to determine whether a child is “deprived” and whether parental rights should be terminated is generally held in private and the transcript of the proceedings is not available to the public. Okla. Stat. tit. 10A, § 1–4–503.  The same is true with respect to proceedings to determine whether a juvenile is “delinquent.” Okla. Stat. tit. 10A, § 2–2–402.  On the other hand, if a juvenile is certified to stand trial as an adult for specified criminal offenses, the proceedings and records are open to the public.  See World Publishing Co. v. White, 2001 OK 48, 32 P.3d 835 (commenting on “the erosion of the confidential status of juvenile records enjoyed historically”).  Okla. Stat. tit. 10A, § 2–6–102(A) provides that juvenile records are confidential, but § 2–6–102(C) enumerates a number of exceptions.

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A. Delinquency

B. Dependency

C. Other proceedings involving minors

D. Prohibitions on photographing or identifying juveniles

Oklahoma Publishing Co. v. District Court of Oklahoma County, 1976 OK 145, 555 P.2d 1286, rev’d on other grounds, 430 U.S. 308 (1977), involved a trial court order that prohibited the media from publishing the name or photograph of an eleven–year–old child accused of second degree murder.

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E. Minor testimony in non-juvenile courts

In Reeves v. State, 1991 OK CR 101, the court, discussing but distinguishing Globe Newspaper, approved the trial court’s limited closure of the proceedings during the testimony of minor victims of lewd molestation.  In Davis v. State, 1986 OK CR 148, 728 P.2d 846, the court upheld the trial court’s decision to close the courtroom during the testimony of a sixteen–year–old victim of rape.  The majority opinion in Davis did not cite Globe Newspaper; the dissenting judge did, arguing that the defendant had been denied a fair trial by the closure.  In Ynclan v. Woodward, 2010 OK 29, 237 P.3d 145, the court held that parents involved in child custody or visitation proceedings (and by unstated extension, the public and media) were not entitled to transcripts of in camera interviews of their children by the court.

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IX. Special proceedings

A. Tribal Courts in the jurisdiction

B. Probate

C. Competency and commitment proceedings

Mental competency hearings or jury trials in connection with criminal proceedings are open to the public to the same extent as criminal trials.  Okla. Pub. Co. v. Martin, 1980 OK 153, 618 P.2d 944.

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D. Attorney and judicial discipline

Disciplinary proceedings against attorneys and judges are confidential up to a point.  Rules 5.7 and 5.8 of the Oklahoma Supreme Court Rules Governing Disciplinary Proceedings, Okla. Stat. tit. 5, Ch. 1, App. 1–A, specifically provide that investigations shall not be made public and files and records in disciplinary investigations “shall be private and confidential.”  Because the Supreme Court is exempt from the Oklahoma Open Meetings and Open Records Acts, meetings of the Professional Responsibility Commission investigating a complaint against a lawyer are not open to the public.  However, once a formal complaint against an attorney has been prepared by the General Counsel of the Oklahoma Bar Association, approved by the Professional Responsibility Commission, and filed with the Supreme Court, the complaint and all further filings are public record.  Rules 5.9 and 6.1.  Hearings before the Trial Panel of the Professional Responsibility Commission are open to the public.  Rule 6.9.  By contrast, some disciplinary proceedings against other professionals are open to the public at an earlier stage.  For example, disciplinary proceedings against medical doctors conducted by the Oklahoma Board of Medical Licensure and Supervision are subject to the Oklahoma Open Meetings Act (Okla. Stat. tit. 25, §§ 301 et seq.), Okla. Stat. tit. 59, § 488.  Although an initial complaint to the Board against a doctor is confidential, records created by the Board after the initial complaint are open to the public under the Oklahoma Open Records Act (Okla. Stat. tit. 51, §§ 24A.1 et seq.), Okla. Stat. tit. 59, § 509.1(D)(2).  See Board of Medical Licensure v. Miglaccio, 1996 OK CIV APP 37, 917 P.2d 483.

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E. Immigration proceedings

F. Other proceedings

X. Restrictions on participants in litigation

A. Media standing to challenge third-party gag orders

There is no Oklahoma appellate authority on this issue, but cases recognizing the standing of media to challenge closure of proceedings and records would presumably apply to media challenges to third–party gag orders.

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B. Gag orders on the press

A trial court order that prohibited the media from publishing the name or photograph of an eleven–year–old child accused of second degree murder was upheld in Oklahoma Publishing Co. v. District Court of Oklahoma County, 1976 OK 145, 555 P.2d 1286, but that decision was reversed by the United States Supreme Court, 430 U.S. 308 (1977).

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C. Gag orders on participants

In Collier v. Reese, 2009 OK 86, 222 P.3d 966, an order of the trial court sealing all polygraph–related documents in a civil assault and battery case and prohibiting the dissemination of polygraph information by anyone to anyone was overturned as an unconstitutional prior restraint.  The court said that a gag order could withstand constitutional attack only if it was narrowly drafted to suppress only that speech that presented a clear and present danger of resulting in serious, substantial evil.

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D. Interviewing judges

There is no prohibition against a judge granting an interview, but most judges appear reluctant to speak with the media about a case.  They will do so under circumstances they believe consistent with Rule 2.10 of the Oklahoma Code of Judicial Conduct.

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XI. Other issues

A. Interests often cited in opposing a presumption of access

Intimidation:

In Shipman v. State, 1982 OK CR 3, 639 P.2d 1248, the court said the trial judge did not abuse his discretion in refusing to close the courtroom to the public during testimony of defense witnesses, despite evidence the witnesses feared reprisals from the relatives of the alleged murder victims.

Sexual Offenses:

Courts in Oklahoma have permitted limited closure when victims of sexual offenses have testified.  See, e.g., Reeves v. State, 1991 OK CR 101; Davis v. State, 1986 OK CR 148, 728 P.2d 846. In Reeves v. State, 1991 OK CR 101, the court approved the trial court’s limited closure of the proceedings during the testimony of minor victims of lewd molestation.  In Davis v. State, 1986 OK CR 148, 728 P.2d 846, the court upheld the trial court’s decision to close the courtroom during the testimony of a sixteen–year–old victim of rape.

Trade Secrets:

Okla. Stat. tit. 12, § 3226(C)(1)(g) identifies “a trade secret or other confidential research, development or commercial information” as the kind of information subject to a protective order in civil litigation.

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B. Cameras and other technology in the courtroom

For many years, Canon 3(B)(10) of the Oklahoma Code of Judicial Conduct prohibited cameras and electronic recording or broadcasting equipment in the courtroom, “[e]xcept as permitted by the individual judge.”  Cameras were not permitted over the objection of a criminal defendant, a juror, or a witness.  The Canon was substantially similar to Fed. R. Crim. P. 53 and interpreted much the same way.  See Nichols v. District Court of Oklahoma County, 2000 OK CR 12, 6 P.3d 506 (reversing trial court order permitting television coverage of preliminary hearing and trial over objection of criminal defendant). The court in Nichols declined the media’s invitation to rule on the constitutionality of the Canon.  Historically, television coverage has been permitted when the criminal defendant has consented, Stafford v. State, 1983 OK CR 131, 669 P.2d 285; or when the coverage was allowed during sentencing (even though the defendant objected) and the defendant could not show any prejudice, Brennan v. State, 1988 OK CR 297, 766 P.2d 1385; Kennedy v. State, 1982 OK CR 11, 640 P.2d 971.  One early case strongly endorsed and encouraged television coverage of judicial proceedings, Lyles v. State, 1958 OK CR 79, 330 P.2d 734, but that case was ignored in light of the language of Canon 3(B)(10).

Although the Oklahoma appellate courts have said that Canons in the Code of Judicial Conduct are not binding directives and do not have the force of law, see Nix v. Standing Com. On Jud. Perform. of Okl. Bar Ass’n, 1966 OK 264, 422 P.2d 203; Lyles v. State, 1958 OK CR 79, 330 P.2d 734, Canon 3(B)(10), generally prohibiting cameras in the courtroom, was religiously followed by Oklahoma judges.

Canon 3(B)(10) effectively gave the criminal defendant a “veto” over cameras in the courtroom until after a jury verdict.  Under the usual interpretation of the Canon, to permit a camera in the courtroom over the objection of the defendant in any proceeding prior to jury verdict was tantamount to denial of his Sixth Amendment right to a fair trial.  Nichols v. District Court of Oklahoma County, 2000 OK CR 12, 6 P.3d 506.  On its face, the Canon would not prohibit electronic coverage of the sentencing or other post–verdict stage of the criminal proceeding, nor did it explicitly prohibit television coverage of a civil proceeding, except to the extent a witness or juror objected to being televised.  Cameras were permitted during sentencing in Brennan v. State, 1988 OK CR 297, 766 P.2d 1385 and Kennedy v. State, 1982 OK CR 11, 640 P.2d 971 during a time when the language of an earlier version of the Canon was more solicitous of television coverage.

The Code of Judicial Conduct in Oklahoma was completely revamped effective April 15, 2011.  It now consists of a series of rules under four Canons.  What was Canon 3(B)(10) completely disappeared. It does not appear, however, that the judicial attitude toward cameras in the courtroom has changed significantly. Some judicial districts retain court rules that parrot the former Canon 3(B)(10).  See, e.g., Rule 39.1, Rules of the Seventh and Twenty–Sixth Judicial Districts (Oklahoma and Canadian Counties) (effective August 22, 2013); Rule 11, Rules of the Fourteenth Judicial District (Tulsa County) (effective February 6, 2008); Rules of the Fifteenth Judicial District, Rule 28 (Adair and Sequoyah Counties) (effective September 1, 2007) and Rule 41 (Cherokee and Wagoner Counties) (effective April 1, 2011).  Local court rules for several other judicial districts do not address the matter.  See, e.g., Rules of the Northeastern Judicial Administrative District (four judicial districts covering Craig, Delaware, Mayes, Nowata, Osage, Ottawa, Rogers, and Washington Counties); Rules of the Eighteenth Judicial District (Pittsburg and McIntosh Counties).

In those instances when television coverage has been permitted, the electronic media have utilized pool coverage using a single television camera.  As a matter of practical experience, judges have prohibited televising the jurors (in the courtroom), have used a “kill switch” to cut off audio during bench conferences, and have imposed other rules and conditions to minimize disruption in the courtroom.  A still camera has generally been allowed when a television camera has been permitted.

Oklahoma has not established any uniform set of rules regarding webcasting, blogging, tweeting, or similar activity in the courtroom.  As a general rule, a silenced cellphone can be used to text or tweet but the use of other electronic devices inside the courtroom of a state court is prohibited, although specific practices are subject to the preferences and control of the particular judge.  The use of electronic devices in federal court is prohibited.

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C. Tips for covering courts in the jurisdiction

The primary court in which cases are normally initiated is the District Court.  There is a District Court for each of 26 judicial districts covering all of Oklahoma’s 77 counties.  A district courthouse is located in the county seat of each county (and there are a few counties in which a district court is located in more than one town in the county).  Each judicial district is assigned at least one District Judge; each county has one or more Associate District Judge.  The judicial districts are divided into nine administrative areas.  Each administrative area has Special District Judges who handle uncontested matters and civil cases involving the recovery of less than $10,000.  The District Court has jurisdiction over all civil and state criminal matters.  In some more populous counties, the District Court may have divisions assigned to family, juvenile, small claims, drug, complex business, or other matters.  Most cities and towns have municipal courts to handle traffic offenses or other purely municipal matters.

Appellate jurisdiction is divided between the Oklahoma Supreme Court for civil matters and the Oklahoma Court of Criminal Appeals for criminal matters.  The Supreme Court, consisting of nine justices, is the only constitutional court, and it has superintending control over the Court of Criminal Appeals, which has five judges; the Supreme Court will defer to the Court of Criminal Appeals in any matter relating to an appeal from a verdict and judgment in a criminal case.  All civil and criminal appeals are filed with the Clerk of the Supreme Court.  The Supreme Court decides in each civil case whether it will retain jurisdiction to hear the appeal or assign the case to one of two divisions of the Oklahoma Court of Civil Appeals.  Each division of the Court of Civil Appeals consists of two panels of three judges.  The judges on the Court of Civil Appeals rotate panel assignments each year.  Most civil appeals are assigned to the Court of Civil Appeals for initial disposition unless the appeal presents a question of first impression or involves a significant public policy issue that the Supreme Court chooses to address itself. Parties can ask the Supreme Court to retain jurisdiction but such requests are not often granted. After an initial decision by the Court of Civil Appeals, further review by the Supreme Court is by petition for certiorari, the grant of which is entirely discretionary with the Supreme Court.

Contact information for courts and court clerks at all levels is readily available at www.oscn.net.

Transcripts are usually obtained by contacting the assigned court reporter directly.

Each District Court (and sometimes individual judges) will have its own rules of decorum with which all individuals attending a proceeding, including media, are expected to be aware.  Generally, cell phones are permitted in the courtroom so long as they are silenced and are not used in the courtroom without the court’s permission.  Use of computers by trial participants is now routine, but acceptance of the use of computers by spectators varies from court to court.  Oklahoma has not established any uniform set of rules regarding blogging, tweeting, or similar activity in the courtroom.

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