Release of graphic photos of deceased accident victim
Can a city refuse release of graphic photos of deceased accident victim to protect family right of privacy. Request is by attorney investigating possible litigation.
Norman had a case several years ago in federal court that was similar. That case focused on the release of a video of a sex crime to a news station. Participants were adults, but the victim alleged privacy rights violations. We ultimately settled the case, but Rick may have a file of some of the research he did on this issue.
Jeff H Bryant
Director of Legal Services
Associate General Counsel
jbryant@omag.org
3650 S. Boulevard
Edmond, Oklahoma 73013
Phone: 405-657-1419
Fax: 405-657-1401
www.omag.org
-----Original Message-----
From: david davis ddavislaw@live.com
Sent: Tuesday, September 14, 2021 7:42 AM
To: oama@lists.imla.org
Subject: [Oama] Release of graphic photos of deceased accident victim
Can a city refuse release of graphic photos of deceased accident victim to protect family right of privacy. Request is by attorney investigating possible litigation.
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I think there is a strong argument that you can so long as City's Police
Officer's weren't the ones who caused the accident / death. The photos
assuredly were taken by Officers working the scene, probably the Signal 30
unit if you had one. They should qualify as LE Records under 24A.8, which
would mean that they would only be subject to mandatory disclosure if they
fit one of the 10 categories under (A). The closest call would be (A)(2) -
if charges were filed against someone related to the wreck, then one could
argue that they depict facts concerning the arrest. That's where Ward &
Lee PLC v. City of Claremore, 2014 OK CIV APP 1, 316 P.3d 225, comes in -
that's the case where the Court strongly held that you don't just get
*a *record
(e.g. the report) outlining the facts concerning the arrest, you get any LE
record that shows those facts. In that case, it was the dash cam video on a
DUI arrest. The Officer's report recounted the results of his
administration of SFST, but the Court held that the SFST was also shown on
the dash cam video which (along with the fact that he showed a physical
discretion of the arrested, (A)(1)) made it an open record. The counter
argument is that the photos depict the aftermath and not the facts related
to the crime itself (which, since it would be a homicide, makes that
argument difficult since the death of the person would be an element of the
crime).
They could still challenge you under (B), but it sounds like you would have
a compelling reason to offer the Court. If the attorney is representing the
family / estate of the deceased, they will argue that (B) uses an "or"
("public interest *or *the interest of the individual") and that their
client has a more compelling interest in receiving the record than the
general public would. To that, I would respond that if the Court orders
that the records must be released to the family under the ORA, then the
second sentence of (B) would make them open records to anyone else ("The
provisions of this section shall not operate to deny access to law
enforcement records *if such records have been previously made available to
the public as provided in the Oklahoma Open Records Act *or as otherwise
provided by law.").
If the accident is still being investigated for possible criminal charges,
then you have the added issue of the new statute at 21 O.S. 465(A) ("Any
law enforcement agency ... conducting a criminal investigation shall be
prohibited from disclosing information about the investigation unless the
disclosure is necessary to gather information and evidence related to the
investigation. Disclosures authorized by the Oklahoma Open Records Act,
Section 24A.1 et seq. of Title 51 of the Oklahoma Statutes, shall not be
prohibited under this section."). I'm not sure where 465 came from but it
went into effect April 13, 2021. It was included in a massive bill, HB
2508, that was about the State military and military investigations. But it
wasn't placed in some special section of Title 21 that was specific or
narrow to the military.
Lastly, I saw your follow up email that the photos are in the possession of
the FD rather than the PD. First, I don't think 24A.8(A)(9) or (A)(10)
would apply, as both sections apply only to video records related to body
or dash cams. But I do think both sections help reenforce the argument on
withholding as the legislature made clear that video depicting dead bodies
can be withheld unless we caused the death.
As to the records being FD rather than PD records, I do think that could
create an issue. Footnote 4 in Oklahoma Assoc. of Broadcasters Inc v. City
of Norman, 2016 OK 119, 390 P.3d 689, contained a discussion about whether
the City, as opposed to the City's PD, is a Law Enforcement Agency.
Ultimately the Court did not rule on that issue, finding that it was not
outcome determinative. But the language suggests they were dubious about
whether the City as a whole was a LEA. I'm a bit amused by their suggestion
since, unlike the other enumerated entities in 24A.3(5), a Police
Department is not a truly separate and independent legal entity. It's part
of the City. You could argue that the FD was acting as a LE capacity when
documenting the scene as I'm sure the photos were shared with the PD. But
the records being in the possession of the FD certainly makes the argument
more difficult on withholding.
Matt
On Tue, Sep 14, 2021 at 7:42 AM david davis ddavislaw@live.com wrote:
Can a city refuse release of graphic photos of deceased accident victim to
protect family right of privacy. Request is by attorney investigating
possible litigation.
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To unsubscribe send an email to oama-leave@lists.imla.org
Thanks for the comments. My thoughts center around the possibility of the photos being published in some tabloid like national enquired or similar website. The family would likely have a common law claim for invasion of their privacy. A similar case is reported against the California highway patrol. Once the photos are released you can't unsung that bell and you have no control over where the photos wind bup. The attorney requesting the photos does not represent the family
On September 14, 2021, at 8:29 AM, Matt Love matt.love@gmail.com wrote:
I think there is a strong argument that you can so long as City's Police Officer's weren't the ones who caused the accident / death. The photos assuredly were taken by Officers working the scene, probably the Signal 30 unit if you had one. They should qualify as LE Records under 24A.8, which would mean that they would only be subject to mandatory disclosure if they fit one of the 10 categories under (A). The closest call would be (A)(2) - if charges were filed against someone related to the wreck, then one could argue that they depict facts concerning the arrest. That's where Ward & Lee PLC v. City of Claremore, 2014 OK CIV APP 1, 316 P.3d 225, comes in - that's the case where the Court strongly held that you don't just get a record (e.g. the report) outlining the facts concerning the arrest, you get any LE record that shows those facts. In that case, it was the dash cam video on a DUI arrest. The Officer's report recounted the results of his administration of SFST, but the Court held that the SFST was also shown on the dash cam video which (along with the fact that he showed a physical discretion of the arrested, (A)(1)) made it an open record. The counter argument is that the photos depict the aftermath and not the facts related to the crime itself (which, since it would be a homicide, makes that argument difficult since the death of the person would be an element of the crime).
They could still challenge you under (B), but it sounds like you would have a compelling reason to offer the Court. If the attorney is representing the family / estate of the deceased, they will argue that (B) uses an "or" ("public interest or the interest of the individual") and that their client has a more compelling interest in receiving the record than the general public would. To that, I would respond that if the Court orders that the records must be released to the family under the ORA, then the second sentence of (B) would make them open records to anyone else ("The provisions of this section shall not operate to deny access to law enforcement records if such records have been previously made available to the public as provided in the Oklahoma Open Records Act or as otherwise provided by law.").
If the accident is still being investigated for possible criminal charges, then you have the added issue of the new statute at 21 O.S. 465(A) ("Any law enforcement agency ... conducting a criminal investigation shall be prohibited from disclosing information about the investigation unless the disclosure is necessary to gather information and evidence related to the investigation. Disclosures authorized by the Oklahoma Open Records Act, Section 24A.1 et seq. of Title 51 of the Oklahoma Statutes, shall not be prohibited under this section."). I'm not sure where 465 came from but it went into effect April 13, 2021. It was included in a massive bill, HB 2508, that was about the State military and military investigations. But it wasn't placed in some special section of Title 21 that was specific or narrow to the military.
Lastly, I saw your follow up email that the photos are in the possession of the FD rather than the PD. First, I don't think 24A.8(A)(9) or (A)(10) would apply, as both sections apply only to video records related to body or dash cams. But I do think both sections help reenforce the argument on withholding as the legislature made clear that video depicting dead bodies can be withheld unless we caused the death.
As to the records being FD rather than PD records, I do think that could create an issue. Footnote 4 in Oklahoma Assoc. of Broadcasters Inc v. City of Norman, 2016 OK 119, 390 P.3d 689, contained a discussion about whether the City, as opposed to the City's PD, is a Law Enforcement Agency. Ultimately the Court did not rule on that issue, finding that it was not outcome determinative. But the language suggests they were dubious about whether the City as a whole was a LEA. I'm a bit amused by their suggestion since, unlike the other enumerated entities in 24A.3(5), a Police Department is not a truly separate and independent legal entity. It's part of the City. You could argue that the FD was acting as a LE capacity when documenting the scene as I'm sure the photos were shared with the PD. But the records being in the possession of the FD certainly makes the argument more difficult on withholding.
Matt
On Tue, Sep 14, 2021 at 7:42 AM david davis <ddavislaw@live.commailto:ddavislaw@live.com> wrote:
Can a city refuse release of graphic photos of deceased accident victim to protect family right of privacy. Request is by attorney investigating possible litigation.
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The case Jeff mentioned is Anderson v. Blake, Case No. CIV-05-729 (WDOK 2005). Here are the facts from the published 10th Circuit opinion:
Ms. Anderson’s claims arise out of the publication of a videotape depicting her alleged rape, which was disclosed to a television reporter and aired on a local news broadcast in Oklahoma City. Aplt. Br. At 2–3. She alleges she was the victim of a rape that occurred while she was unconscious, and that she later discovered a video documenting the rape. Id. After discovering the video, she reported the rape to Officer Blake, a detective with the City of Norman Police Department and turned the video over to him. Id. at 3. Ms. Anderson alleged that Officer Blake promised her that the video would remain confidential and would be used only for law enforcement purposes.
Sometime thereafter, Officer Blake disclosed the contents of the video to a reporter named Kimberly Lohman and her cameraman, both of whom work for KOCO–TV, a television station based in Oklahoma City. Aplt. Br. at 3; Aplee. Br. at 11. Ms. Anderson alleges that the officer contacted her by phone and handed the line to Lohman who attempted to interview her about the details of her rape. Aplee. Br. at 11. Later, the television station aired portions of the video in a manner that obscured Ms. Anderson’s identity during a news broadcast. Aplt. Br. at 3. Ms. Anderson alleges that there was no law enforcement purpose in defendant’s release of the video. Aplee. Br. At 3.
The district court denied Blake’s qualified immunity motion to dismiss and the 10th Circuit affirmed. The court held that Ms. Anderson had a constitutionally protected privacy interest in the videotape and that the right was clearly established. The court relied on Sheets v. Salt Lake County, 45 F.3d 1383 (10th Cir. 1995). In that case, a detective allowed a reporter to view copies of pages from a murder victim’s diary. The Sheets court found that information conveyed to one's spouse or that one's spouse has observed about one's character, marriage, finances, and business to be personal in nature and subject to a reasonable expectation of privacy. Sheets v. Salt Lake Cty., 45 F.3d 1383, 1388 (10th Cir. 1995). The district court in Anderson concluded that Ms. Anderson’s privacy interest was of a substantially more personal nature than a diary held to be protected in Sheets.
In Marsh v. Cty. of San Diego, 680 F.3d 1148, 1153 (9th Cir. 2012), the Ninth Circuit became the first court at any level to hold that a federal right to privacy, rooted in the word “liberty” within the Due Process Clause of the Fourteenth Amendment, encompasses the power to control images of a dead family member. While not binding in the 10th Circuit, Marsh may signal a prelude toward clearly establishing a constitutional right to familial privacy rights over death-scene images.
In light of Sheets, Anderson, and Marsh, I would err on the side of refusing to release graphic photos of a deceased accident victim. It is the public policy of the State of Oklahoma that the people are vested with the inherent right to know and be fully informed about their government. 51 O.S. § 24A.2. Images of a deceased accident victim have nothing to do with “the inherent right to know and be fully informed about [local] government.”
Rickey J. Knighton II | Assistant City Attorney | City of Norman
201 West Gray | P.O. Box 370 | Norman, Oklahoma 73070
405.217.7700 | 405.366.5425 | 5 rick.knighton@normanok.gov | www.normanok.gov
This e-mail is the property of the City Attorney’s office, City of Norman, Oklahoma, and the information contained in this e-mail is protected by the attorney-client and/or the attorney work product privilege. It is intended only for the use of the individual named above and the privileges are not waived by virtue of this having been sent by e-mail. If the person actually receiving this message or any other reader of the message is not the named recipient or the employee or agent responsible to deliver it to the named recipient, any use, dissemination, distribution, or copying of the communication is strictly prohibited. If you have received this e-mail in error, please immediately notify us and return the original message.
-----Original Message-----
From: david davis ddavislaw@live.com
Sent: Tuesday, September 14, 2021 7:42 AM
To: oama@lists.imla.org
Subject: EXTERNAL EMAIL : [Oama] Release of graphic photos of deceased accident victim
Can a city refuse release of graphic photos of deceased accident victim to protect family right of privacy. Request is by attorney investigating possible litigation.
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Attached is a report of a California case where the Highway Patrol was held liable for releasing photos of the deceased body of an accident victim. This is based on the theory of invasion of right of informational privacy. Once the photos are released the public body loses control of where the photos may be published or disseminated
CONFIDENTIALITY NOTE: This transmission is protected by the Electronic Communications Privacy Act, 18 U.S.C. Sections 2510-2521 and intended to be delivered only to the named addressee(s) This e-mail message is intended only for the personal use of the recipient(s) named above. This message is or may be an attorney-client communication and as such privileged and confidential. If you are not an intended recipient, you may not review, copy or distribute this message. If you have received this communication in error, please notify us immediately by e-mail and delete the original message.
s/ David A. Davis
LAW OFFICE OF DAVID A. DAVIS
4312 N. Classen Blvd.
OKLAHOMA CITY, OK 73118
405 840-6353
405 557-0777 (FAX)
ddavislaw@live.commailto:ddavislaw@live.com
From: Rick Knighton Rick.Knighton@NormanOK.gov
Sent: Tuesday, September 14, 2021 9:46 AM
To: 'david davis' ddavislaw@live.com; oama@lists.imla.org oama@lists.imla.org
Subject: RE: Release of graphic photos of deceased accident victim
The case Jeff mentioned is Anderson v. Blake, Case No. CIV-05-729 (WDOK 2005). Here are the facts from the published 10th Circuit opinion:
Ms. Anderson’s claims arise out of the publication of a videotape depicting her alleged rape, which was disclosed to a television reporter and aired on a local news broadcast in Oklahoma City. Aplt. Br. At 2–3. She alleges she was the victim of a rape that occurred while she was unconscious, and that she later discovered a video documenting the rape. Id. After discovering the video, she reported the rape to Officer Blake, a detective with the City of Norman Police Department and turned the video over to him. Id. at 3. Ms. Anderson alleged that Officer Blake promised her that the video would remain confidential and would be used only for law enforcement purposes.
Sometime thereafter, Officer Blake disclosed the contents of the video to a reporter named Kimberly Lohman and her cameraman, both of whom work for KOCO–TV, a television station based in Oklahoma City. Aplt. Br. at 3; Aplee. Br. at 11. Ms. Anderson alleges that the officer contacted her by phone and handed the line to Lohman who attempted to interview her about the details of her rape. Aplee. Br. at 11. Later, the television station aired portions of the video in a manner that obscured Ms. Anderson’s identity during a news broadcast. Aplt. Br. at 3. Ms. Anderson alleges that there was no law enforcement purpose in defendant’s release of the video. Aplee. Br. At 3.
The district court denied Blake’s qualified immunity motion to dismiss and the 10th Circuit affirmed. The court held that Ms. Anderson had a constitutionally protected privacy interest in the videotape and that the right was clearly established. The court relied on Sheets v. Salt Lake County, 45 F.3d 1383 (10th Cir. 1995). In that case, a detective allowed a reporter to view copies of pages from a murder victim’s diary. The Sheets court found that information conveyed to one's spouse or that one's spouse has observed about one's character, marriage, finances, and business to be personal in nature and subject to a reasonable expectation of privacy. Sheets v. Salt Lake Cty., 45 F.3d 1383, 1388 (10th Cir. 1995). The district court in Anderson concluded that Ms. Anderson’s privacy interest was of a substantially more personal nature than a diary held to be protected in Sheets.
In Marsh v. Cty. of San Diego, 680 F.3d 1148, 1153 (9th Cir. 2012), the Ninth Circuit became the first court at any level to hold that a federal right to privacy, rooted in the word “liberty” within the Due Process Clause of the Fourteenth Amendment, encompasses the power to control images of a dead family member. While not binding in the 10th Circuit, Marsh may signal a prelude toward clearly establishing a constitutional right to familial privacy rights over death-scene images.
In light of Sheets, Anderson, and Marsh, I would err on the side of refusing to release graphic photos of a deceased accident victim. It is the public policy of the State of Oklahoma that the people are vested with the inherent right to know and be fully informed about their government. 51 O.S. § 24A.2. Images of a deceased accident victim have nothing to do with “the inherent right to know and be fully informed about [local] government.”
Rickey J. Knighton II | Assistant City Attorney | City of Norman
201 West Gray | P.O. Box 370 | Norman, Oklahoma 73070
405.217.7700 | 405.366.5425 | 5 rick.knighton@normanok.gov | www.normanok.gov
This e-mail is the property of the City Attorney’s office, City of Norman, Oklahoma, and the information contained in this e-mail is protected by the attorney-client and/or the attorney work product privilege. It is intended only for the use of the individual named above and the privileges are not waived by virtue of this having been sent by e-mail. If the person actually receiving this message or any other reader of the message is not the named recipient or the employee or agent responsible to deliver it to the named recipient, any use, dissemination, distribution, or copying of the communication is strictly prohibited. If you have received this e-mail in error, please immediately notify us and return the original message.
-----Original Message-----
From: david davis ddavislaw@live.com
Sent: Tuesday, September 14, 2021 7:42 AM
To: oama@lists.imla.org
Subject: EXTERNAL EMAIL : [Oama] Release of graphic photos of deceased accident victim
Can a city refuse release of graphic photos of deceased accident victim to protect family right of privacy. Request is by attorney investigating possible litigation.
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So I'm thinking that case turned on some of the unique facts. I found a
published appellate opinion in the case that predated the trial. Catsouras
v. Dep't of California Highway Patrol, 181 Cal. App. 4th 856, 104 Cal.
Rptr. 3d 352 (2010), *as modified on denial of reh'g *(Mar. 1, 2010). Looks
like the case involved Troopers emailing the death photos to friends and
family members on Halloween for pure shock value. Those friends and family
members then spread the photos around and they made it onto various
websites. The appellate Court had to confront the issue of whose interest
was being vindicated in the litigation. It couldn't be the deceased's right
to privacy, which died with her. But the Court recognized that the family
members had their own cause of action.
Oklahoma does recognize a cause of action for invasion of privacy. McCormack
v. Oklahoma Pub. Co., 1980 OK 98, 613 P.2d 737. The Court has required
that the disclosure of information be unreasonable and that it involves
private facts. There are conditional and absolute privileges that shield a
Defendant. This includes disclosures which serve public policy. See Guinn
v. Church of Christ of Collinsville, 1989 OK 8, n.71, 775 P.2d 766.
Here, the ORA doesn't have an exception I know of that would apply related
to privacy (by contrast, see 24A.7(A)(2) which provides a permissive
withholding right for certain personnel records which, if released, would
constitute a clearly unwarranted invasion of the employee's privacy). If
the disclosure is required under the ORA, then I don't see how a person
could prove up the element of unreasonableness much less the defense of an
absolute or conditional privilege. In Guinn, the Court distinguished
absolute and conditional privileges based on consent. There, a Church had
an absolute privilege to disclose certain information due to the person's
membership in the church which evidenced their consent. When they left the
church, the absolute privilege fell away and all that could be claimed (and
rejected by the Court) was a conditional privilege. If disclosure is
required by law, one could argue that anyone who interacts with public
officials or engages in an action that is going to result in public
officials responding could be argued to have implicitly consented to the
dissemination of any records that have to be disclosed by law.
Alternatively, given that the ORA furthers the public policy goals of the
State, I would argue that a conditional privilege would apply.
I also question whether they can meet the private facts element. If the
photos depict something that was in the roadway, that could hardly be said
to be a private fact of the person's personal life. Now, if it was a
suicide and the photos were taken inside the person's home, you could
probably get closer to the private facts issue. But I still would wonder
whether a Court would find this to be a private fact if our Firefighters or
Cops were lawfully present in the private place. Think of it in terms of a
criminal investigation of, say, a domestic A&B. The relationship turmoil
would likely be private facts but at the point that LE gets involved, and
say we effect an arrest, I'm not sure that you can claim we are releasing
information about private facts. They were private, you then made them
public through your own actions.
None of this is to say that I would enjoy releasing such photos. It's just
to say that civil liability would be a difficult claim to make if the
photos were released under the ORA.
On Tue, Sep 14, 2021 at 10:58 AM david davis ddavislaw@live.com wrote:
Attached is a report of a California case where the Highway Patrol was
held liable for releasing photos of the deceased body of an accident
victim. This is based on the theory of invasion of right of informational
privacy. Once the photos are released the public body loses control of
where the photos may be published or disseminated
CONFIDENTIALITY NOTE: *This transmission is protected by the Electronic
Communications Privacy Act, 18 U.S.C. Sections 2510-2521 and intended to be
delivered only to the named addressee(s) This e-mail message is intended
only for the personal use of the recipient(s) named above. This message is
or may be an attorney-client communication and as such privileged and
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s/ David A. Davis
LAW OFFICE OF DAVID A. DAVIS
4312 N. Classen Blvd.
OKLAHOMA CITY, OK 73118
405 840-6353
405 557-0777 (FAX)
ddavislaw@live.com
From: Rick Knighton Rick.Knighton@NormanOK.gov
Sent: Tuesday, September 14, 2021 9:46 AM
To: 'david davis' ddavislaw@live.com; oama@lists.imla.org <
oama@lists.imla.org>
Subject: RE: Release of graphic photos of deceased accident victim
The case Jeff mentioned is Anderson v. Blake, Case No. CIV-05-729 (WDOK
2005). Here are the facts from the published 10th Circuit opinion:
Ms. Anderson’s claims arise out of the publication of a videotape
depicting her alleged rape, which was disclosed to a television reporter
and aired on a local news broadcast in Oklahoma City. Aplt. Br. At 2–3. She
alleges she was the victim of a rape that occurred while she was
unconscious, and that she later discovered a video documenting the rape.
Id. After discovering the video, she reported the rape to Officer Blake, a
detective with the City of Norman Police Department and turned the video
over to him. Id. at 3. Ms. Anderson alleged that Officer Blake promised her
that the video would remain confidential and would be used only for law
enforcement purposes.
Sometime thereafter, Officer Blake disclosed the contents of the video to
a reporter named Kimberly Lohman and her cameraman, both of whom work for
KOCO–TV, a television station based in Oklahoma City. Aplt. Br. at 3;
Aplee. Br. at 11. Ms. Anderson alleges that the officer contacted her by
phone and handed the line to Lohman who attempted to interview her about
the details of her rape. Aplee. Br. at 11. Later, the television station
aired portions of the video in a manner that obscured Ms. Anderson’s
identity during a news broadcast. Aplt. Br. at 3. Ms. Anderson alleges that
there was no law enforcement purpose in defendant’s release of the video.
Aplee. Br. At 3.
The district court denied Blake’s qualified immunity motion to dismiss and
the 10th Circuit affirmed. The court held that Ms. Anderson had a
constitutionally protected privacy interest in the videotape and that the
right was clearly established. The court relied on *Sheets v. Salt Lake
County, *45 F.3d 1383 (10th Cir. 1995). In that case, a detective
allowed a reporter to view copies of pages from a murder victim’s diary.
The Sheets court found that information conveyed to one's spouse or
that one's spouse has observed about one's character, marriage, finances,
and business to be personal in nature and subject to a reasonable
expectation of privacy. S**heets v. Salt Lake Cty., 45 F.3d 1383, 1388
(10th Cir. 1995). The district court in *Anderson *concluded that Ms.
Anderson’s privacy interest was of a substantially more personal nature
than a diary held to be protected in Sheets.
In Marsh v. Cty. of San Diego, 680 F.3d 1148, 1153 (9th Cir. 2012), the
Ninth Circuit became the first court at any level to hold that a federal
right to privacy, rooted in the word “liberty” within the Due Process
Clause of the Fourteenth Amendment, encompasses the power to control images
of a dead family member. While not binding in the 10th Circuit, Marsh
may signal a prelude toward clearly establishing a constitutional right to
familial privacy rights over death-scene images.
In light of *Sheets, Anderson, *and Marsh, I would err on the side of
refusing to release graphic photos of a deceased accident victim. It is
the public policy of the State of Oklahoma that the people are vested with
the inherent right to know and be fully informed about their government.
51 O.S. § 24A.2. Images of a deceased accident victim have nothing to do
with “the inherent right to know and be fully informed about [local]
government.”
Rickey J. Knighton II | Assistant City Attorney | City of Norman
201 West Gray | P.O. Box 370 | Norman, Oklahoma 73070
405.217.7700 | 405.366.5425 | 5 rick.knighton@normanok.gov |
www.normanok.gov
This e-mail is the property of the City Attorney’s office, City of Norman,
Oklahoma, and the information contained in this e-mail is protected by the
attorney-client and/or the attorney work product privilege. It is intended
only for the use of the individual named above and the privileges are not
waived by virtue of this having been sent by e-mail. If the person actually
receiving this message or any other reader of the message is not the named
recipient or the employee or agent responsible to deliver it to the named
recipient, any use, dissemination, distribution, or copying of the
communication is strictly prohibited. If you have received this e-mail in
error, please immediately notify us and return the original message.
-----Original Message-----
From: david davis ddavislaw@live.com
Sent: Tuesday, September 14, 2021 7:42 AM
To: oama@lists.imla.org
Subject: EXTERNAL EMAIL : [Oama] Release of graphic photos of deceased
accident victim
Can a city refuse release of graphic photos of deceased accident victim to
protect family right of privacy. Request is by attorney investigating
possible litigation.
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Ricky has very succinctly articulated the position I have advised my client, the Oklahoma City Fire Department, to take on such requests and have done so for at least the last 16 years.
PK
Paula A. Kelly,
Asst. Mun. Counselor,
The City of Oklahoma City
Labor & Employment Division Head
paula.kelly@okc.govmailto:paula.kelly@okc.gov
405-297-2223
From: Rick Knighton Rick.Knighton@NormanOK.gov
Sent: Tuesday, September 14, 2021 9:46 AM
To: 'david davis' ddavislaw@live.com; oama@lists.imla.org
Subject: [Oama] Re: Release of graphic photos of deceased accident victim
The case Jeff mentioned is Anderson v. Blake, Case No. CIV-05-729 (WDOK 2005). Here are the facts from the published 10th Circuit opinion:
Ms. Anderson’s claims arise out of the publication of a videotape depicting her alleged rape, which was disclosed to a television reporter and aired on a local news broadcast in Oklahoma City. Aplt. Br. At 2–3. She alleges she was the victim of a rape that occurred while she was unconscious, and that she later discovered a video documenting the rape. Id. After discovering the video, she reported the rape to Officer Blake, a detective with the City of Norman Police Department and turned the video over to him. Id. at 3. Ms. Anderson alleged that Officer Blake promised her that the video would remain confidential and would be used only for law enforcement purposes.
Sometime thereafter, Officer Blake disclosed the contents of the video to a reporter named Kimberly Lohman and her cameraman, both of whom work for KOCO–TV, a television station based in Oklahoma City. Aplt. Br. at 3; Aplee. Br. at 11. Ms. Anderson alleges that the officer contacted her by phone and handed the line to Lohman who attempted to interview her about the details of her rape. Aplee. Br. at 11. Later, the television station aired portions of the video in a manner that obscured Ms. Anderson’s identity during a news broadcast. Aplt. Br. at 3. Ms. Anderson alleges that there was no law enforcement purpose in defendant’s release of the video. Aplee. Br. At 3.
The district court denied Blake’s qualified immunity motion to dismiss and the 10th Circuit affirmed. The court held that Ms. Anderson had a constitutionally protected privacy interest in the videotape and that the right was clearly established. The court relied on Sheets v. Salt Lake County, 45 F.3d 1383 (10th Cir. 1995). In that case, a detective allowed a reporter to view copies of pages from a murder victim’s diary. The Sheets court found that information conveyed to one's spouse or that one's spouse has observed about one's character, marriage, finances, and business to be personal in nature and subject to a reasonable expectation of privacy. Sheets v. Salt Lake Cty., 45 F.3d 1383, 1388 (10th Cir. 1995). The district court in Anderson concluded that Ms. Anderson’s privacy interest was of a substantially more personal nature than a diary held to be protected in Sheets.
In Marsh v. Cty. of San Diego, 680 F.3d 1148, 1153 (9th Cir. 2012), the Ninth Circuit became the first court at any level to hold that a federal right to privacy, rooted in the word “liberty” within the Due Process Clause of the Fourteenth Amendment, encompasses the power to control images of a dead family member. While not binding in the 10th Circuit, Marsh may signal a prelude toward clearly establishing a constitutional right to familial privacy rights over death-scene images.
In light of Sheets, Anderson, and Marsh, I would err on the side of refusing to release graphic photos of a deceased accident victim. It is the public policy of the State of Oklahoma that the people are vested with the inherent right to know and be fully informed about their government. 51 O.S. § 24A.2. Images of a deceased accident victim have nothing to do with “the inherent right to know and be fully informed about [local] government.”
Rickey J. Knighton II | Assistant City Attorney | City of Norman
201 West Gray | P.O. Box 370 | Norman, Oklahoma 73070
405.217.7700 | 405.366.5425 | 5 rick.knighton@normanok.govmailto:rick.knighton@normanok.gov | www.normanok.govhttp://www.normanok.gov
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From: david davis <ddavislaw@live.commailto:ddavislaw@live.com>
Sent: Tuesday, September 14, 2021 7:42 AM
To: oama@lists.imla.orgmailto:oama@lists.imla.org
Subject: EXTERNAL EMAIL : [Oama] Release of graphic photos of deceased accident victim
Can a city refuse release of graphic photos of deceased accident victim to protect family right of privacy. Request is by attorney investigating possible litigation.
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