A Malodorous Mockery in McCurtain County – What Does Oklahoma Law Say About Recording Conversations?

It reads like something from a Hollywood movie: Small town newspaper publisher tries to catch county officials violating state law (continuing a county commissioners’ meeting after the public left believing the session had ended). To bolster his position, the newspaper publisher leaves behind his voice-activated recording device because he believes it will record officials discussing county business after a public meeting in violation of the Oklahoma open meeting law.

Instead of simply catching additional county-related discussions, the recording reveals public officials—including the sheriff—talking about ways to kill the publisher and his son.

Unfortunately, the recording device and what it documented are not the product of a scriptwriter’s imagination. While some of those caught speaking have alleged that the recording is altered, the audio is there. And it's disgusting, to say the least.

Public outcry was joined by elected officials around the state, including the governor, calling for everyone heard on the recording to be removed from office or terminated from their employment. In response, the sheriff, who actively participated in the recorded discussions, called the publisher’s conduct illegal and commenced an investigation.

Putting aside for just a moment whatever (hopefully negative) thoughts you may have regarding elected officials discussing ways to kill journalists or expressing how they miss lynching Black people, the county sheriff does raise an interesting legal issue about the audio device: Was the surreptitious recording a violation of state law? Let’s look at the applicable statutes.

What does “one-party consent” mean?

It is a crime in Oklahoma to record a conversation without the consent of at least one of the parties engaging in that exchange. This principle is known as the “one-party consent” rule. However, you may record as long as you are one of the parties involved in the conversation. In other words, the person consenting can be the same as the person recording.

With just that information alone, you may think the publisher violated the law by leaving the recording device behind after he walked out of the room and no longer participated in the conversation. However, there is more to the law than simply who may record; in fact, the location where the conversation was conducted can sometimes be the deciding factor between criminal liability and legally permissible activity.

Did the county officials have an “expectation of privacy”?

According to Oklahoma law, consent to record is not required if the participants in a conversation lack an expectation of privacy. Conversations in a public place do not enjoy the same privacy protection as those occurring within the confines of your home. The law recognizes and protects your expectation that a verbal exchange within your home will remain private. Still, you lose this protection when you converse in a area where that privacy expectation would be unreasonable.

If you have a conversation in a location where public access is allowed, proving you had a “reasonable” expectation of privacy becomes more challenging. For example, if someone inserts a recording device into a car and records a conversation without the consent of the two people in the vehicle, it would violate state law. If an individual places a recording device in your hotel room without your knowledge, we likely arrive at the same conclusion.

However, if the car’s windows are left open, and someone standing nearby hears and records the conversation, the recording may not violate the applicable law. Same with the hotel room: If you leave the door open and others can listen as they pass, well, that’s a consequence reasonable people should expect. The critical factor is the reasonable knowledge that there is easy access to the conversation. It’s an objective standard, although there can be some subjective components.

Regarding the situation in McCurtain County, the communication picked up by the recording device took place at a location that had just housed a meeting open to the general public and attended by a member of the press. If county officials expected privacy, they should have taken the conversation to an office or other area not open to the public.

It will be interesting to see where the sheriff’s investigation leads. Luckily for the public, though, the McCurtain County Sheriff’s Department isn’t the only agency looking into the matter.

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