Wednesday, December 30, 2009

Police complaint accuses three members of Bartlesville committee of violating Open Meeting Act

Three members of a Bartlesville committee that helps oversee downtown development have been accused in a police complaint of recently violating the state Open Meeting Act.

The agenda for the Design Review Committee's special meeting on Dec. 15 did not specify that action could be taken on two project applications.

In contrast, the agenda said the committee would "discuss and take possible actions to develop Residential Design Guidelines for the Downtown Redevelopment District."

The official mission of the five-member committee is "to ensure compatibility of future development within the Downtown Redevelopment District with the existing character of the area and to provide a framework for new construction and the renovation of buildings which already exist."

Or, as The Bartlesville Examiner-Enterprise has explained, the committee "was created to help oversee development in downtown and make sure signage, building, redevelopment and renovation were done in a way that was consistent with the unique history and architecture of downtown."

According to a document provided on the city's Web site, "No project will be permitted to proceed without plan approval from the DRC." (DESIGN REVIEW An Applicant’s Guide.)

"All meetings of the DRC are subject to the Oklahoma Open Meetings Act, Title 25 OS 301-314," according to the document.

Members are appointed by the mayor and serve a three-year term limited to a continuous period of two terms or six years, according to the city's Web site.

Two items listed on the Dec. 15 agenda were:

"(Project # 2009-0011-3) An application from Rick Woodward, on behalf of H2O Church, Inc., for free standing signage on the NW corner of the property located at 200 N Dewey.

"(Project # 2009-0026) An application from Darin & Joan Dreisker on behalf of Dancing Bear Inc., for renovation of the fa├žade of the building located at 510 Cherokee Avenue."

The three committee members at the meeting voted unanimously to approve both applications, said Joel Rabin, who filed the police complaint.

Rabin's wife, Sharon Hurst, previously served as chairwoman of the committee.

Rabin said the members who voted on Dec. 15 were Eric Randall, whose term expires January 2011; Erika Phillips, term expiring September 2012; and Dan Keleher Jr., whose second term ends in September 2012.

Rabin, an FOI Oklahoma Inc. member, said that during the public comment portion of the meeting, he told the committee members they had just violated the Open Meeting Act.

Under the statute, each agenda must “identify all items of business to be transacted” by the public body at the meeting. (OKLA. STAT. tit. 25, § 311(B)(1))

The Oklahoma Court of Civil Appeals has said agendas should be worded in “plain language, directly stating the purpose of the meeting, in order to give the public actual notice." (Haworth Bd. of Ed. of Independent School Dist. No. I-6, McCurtain County v. Havens, 1981 OK CIV APP 56, ¶ 8)

The purpose of the statute “to encourage and facilitate an informed citizenry’s understanding of the governmental processes and governmental problems . . . is defeated if the required notice is deceptively worded or materially obscures the stated purpose of the meeting,” the court said.

Any act or omission that "has the effect of actually deceiving or misleading the public regarding the scope of matters to be taken up at the meeting" would be a "willful" violation of the Open Meeting Act, the court said. That includes any action exceeding the scope of action defined by the agenda.

Anyone willfully violating the Open Meeting Act commits a misdemeanor and can be fined up to $500 and sentenced up to one year in the county jail. (OKLA. STAT. tit. 25, § 314)

Also, any action taken in “willful violation” of the Open Meeting Act is “invalid.” (OKLA. STAT. tit. 25, § 313)

Joey Senat, Ph.D.
Associate Professor
OSU School of Journalism

Tuesday, December 29, 2009

Oklahoma City officials refuse to disclose DOBs of employees; newspaper criticizes DA for advice not to release county employees DOBs

Oklahoma City won't disclose the birth dates of its employees, saying that allowing the public to use the information to check criminal records, political contributions and other background information would not "assist citizens in the exercise of" their political power, The Oklahoman reported today.

Instead, Assistant City Attorney Richard Smith told the newspaper it must request the birth date for each employee individually and explain its "specific concern in relation to that employee."

Also today, the newspaper in an editorial criticized the decision last week by Oklahoma County District Attorney David Prater that disclosure of all county employee birth dates would constitute a clearly unwarranted invasion of the employees' privacy.

Prater gave no explanation for his decision in either a letter to the newspaper or later to reporter Bryan Dean.

"I'm not concerned about your confusion," he told Dean.

The Oklahoman on Tuesday took exception to Prater's comment.

"Really? The county’s top prosecutor should care a lot about transparency when it comes to open records issues," the newspaper said.

The editorial noted that state Attorney General Drew Edmondson has released the names and DOBs of his employees.

"If Prater can do so, then he should," the newspaper said. "Otherwise he’s flouting the law and setting a poor precedent for the many city and county officials who look to him for guidance.

This blog, too, criticized Prater's reasoning a week ago and pointed out that his letter was mute on the most-important point: Why the public's interest in learning about its employees was so outweighed by individual employee privacy that disclosure would constitute an unwarranted invasion of privacy.

Oklahoma City, apparently taking a cue from Prater, offered no explanation of how disclosure of the information would constitute an unwarranted invasion of privacy.

In an e-mail Dec. 23, Smith told the newspaper, "After much thought and careful consideration, the City must deny your request for all employees’ dates of births."

That refusal -- just like Prater's -- runs contrary to a recent state attorney general opinion.

Earlier this month, Edmondson said the birth dates of government employees are presumed to be public information and should be released upon request. (2009 OK AG 33)

Officials may refuse to release the information only if they determine "the employee’s interest in nondisclosure is greater," he said. Disclosing the birth date would have to constitute an “unwarranted invasion of privacy.”

In short, the public interest is presumed to exist and is given greater weight than the employee's privacy.

But Oklahoma City has taken the opposite approach by presuming that disclosure is an unwarranted invasion of privacy and by requiring the requester to justify the public's interest. In this instance, Smith is saying no public interest exists.

Oklahoma City also has, in effect, instituted a blanket policy of nondisclosure, which Edmondson said governments are prohibited from doing. Officials must justify their refusal on a case-by-case basis, he said.

Unlike in many other states, attorney general opinions in Oklahoma are binding unless overturned by a court or the Legislature.

In 1919, for example, the Oklahoma Supreme Court said, "It is the duty of public officers, such as county superintendents, when in doubt as to the construction of an act of the Legislature, to follow, and not disregard, the advice of the Attorney General...." (Rasure Co. Supt. v. Sparks, 1919 OK 231, ¶ 7).

See also Branch Trucking Co. v. Okla. Tax Comm'n, 1990 OK 41, ¶ 10 (“Since 1919, the Attorney General's opinions have been binding on state officials unless the opinion is inconsistent with a final determination of a court of competent jurisdiction.”) (citing Rasure);

State ex rel. York v. Turpen, 1984 OK 26, ¶ 5 (“While in many states such an Attorney General's opinion is merely advisory, in this state it has been held such an opinion is binding upon the state official affected by it and it is their duty to follow and not disregard those opinions. This duty continues until a judgment of a court of competent jurisdiction relieves the public official of the burden of compliance.” (citing Rasure); and

2006 OK AG 35, ¶ 29 (“The effect of an Attorney General's Opinion in Oklahoma is different than it would be in many other states. In most jurisdictions, opinions or advice of the attorney general is advisory only, i.e., non-binding on the officials to whom it is addressed. In such jurisdictions attorney general opinions have in no sense the effect of judicial utterances. This is in sharp contrast to the role of the Attorney General in Oklahoma, where the Attorney General's opinion is binding on state officials to whom it applies, except only to the matter of constitutionality of statutes.”) (citing State ex rel. Fent v. State ex rel. Okla. Water Res. Bd., 2003 OK 29, ¶ 16).

Unfortunately, many local and state officials seem to pick and choose which attorney general opinions -- or which parts of opinions -- they're willing to follow and ignore those they don't like.

Joey Senat, Ph.D.
Associate Professor
OSU School of Journalism

Tuesday, December 22, 2009

Okla. Co. DA: Disclosure of county employee DOBs would be clearly unwarranted invasion of privacy; Okla. AG releases employee birth dates

Oklahoma County District Attorney
David Prater says disclosing the birth dates of all county employees would constitute a clearly unwarranted invasion of the employees' privacy, The Oklahoman reported today.

The newspaper requested the information so it could check the names of county employees against databases of criminal records, political contributions and federal bankruptcy filings.

Reporters recently discovered that an Oklahoma City employee had filed personal bankruptcy about a month before being placed on paid administrative leave because of an investigation into the misuse of public funds. Reporters were able to learn of the bankruptcy only after city officials disclosed the employee's date of birth.

In a formal opinion stemming from the city's initial refusal to disclose the birth date, state Attorney General Drew Edmondson said government employee birth dates are presumed open and public bodies may not enact policies blocking access to all employee dates of birth. (2009 OK AG 33)

Edmondson said public bodies may withhold the information only after demonstrating that the employee’s privacy outweighs the public’s interest in disclosure. Such balancing must be done on a case-by-case basis, he said.

On Monday, Edmondson released the names and birth dates of his employees, the newspaper reported.

But Prater, in a letter to the newspaper, said he would not give "approval for the blanket release of the birth dates of county employees" and was advising Oklahoma County Clerk Carolynn Caudill not to release the information.

That's essentially a blanket denial of the information, which Edmondson said was prohibited under the state Open Records Act.

In the letter, Prater told the newspaper, "I find your request for the birth dates of county employees clearly an unwarranted invasion of privacy of Oklahoma County employees."

Prater gave no explanation for his decision in either the letter or later to reporter Bryan Dean.

"I'm not concerned about your confusion," he told Dean. "The letter speaks for itself."

The letter, though, is mute on the most-important point.

Prater provided no reasoning for why the public's interest in learning about its employees was so outweighed by individual employee privacy that disclosure would constitute an unwarranted invasion of privacy.

Taxpayers deserve more thoughtful, informative explanations from elected officials than the short-tempered one given by Prater.

All this, though, brings us full circle to the original issue: Are birth dates such truly private information that disclosure constitutes a clearly unwarranted invasion of privacy?

Freedom of information experts say the fear that disclosing DOBs in public records will cause identity theft is unjustified. “Those fears aren’t backed up with statistics or even anecdotal evidence showing public records are a source for identity thieves,” summarized Dean in an article Aug. 31.

As Edmondson and this blog noted months ago, birth dates can be found in voter records and other public documents in Oklahoma. The same can’t be said for the Open Records Act-provided examples of an unwarranted invasion of privacy.

Under the statute, governments “
may keep personnel records confidential … where disclosure would constitute a clearly unwarranted invasion of personal privacy such as employee evaluations, payroll deductions, employment applications submitted by persons not hired by the public body, and transcripts from institutions of higher education maintained in the personnel files of certified public school employees.” (OKLA. STAT. tit. 51, § 24A.7(A)(2))

Employee evaluations and payroll deductions are not available in other public records. Birth dates are.

Employee evaluations and payroll deductions are documents. Birth dates aren't.

Meanwhile, the statute says the employment applications of workers hired by government are open to the public.

Courts outside Oklahoma generally have agreed that people do not have a reasonable expectation of privacy when the information is contained in statutorily mandated public documents directly related to births and deaths, marriages, divorces, arrests, land sales, or other matters of "public record."

A federal appellate court, for example, said a right of privacy did not protect the name, age, and date of birth of registered sex offenders because the information was "already fully available to the public."

The issue seems likely headed to court in Oklahoma. Expect an appeal regardless of which side wins at trial.

Until then, the decision is left in the hands of individual officials such Prater. Some will give credence to the public interest. Others won't.

Joey Senat, Ph.D.
Associate Professor
OSU School of Journalism

Monday, December 21, 2009

Norman mayoral candidate signs Open Government Pledge

Norman Councilman Hal Ezzell has signed FOI Oklahoma's Open Government Pledge as a candidate for mayor in the city's municipal election on March 2.

Ezzell pledged that the city's government would "comply with not only the letter but also the spirit of Oklahoma's Open Meeting and Open Records laws.”

Municipal candidates also promise “to support at every opportunity 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 so that they can efficiently and intelligently exercise their inherent political power.”

Ezzell, who represents Ward 3, is the first candidate in a 2010 election to sign the pledge.

FOI Oklahoma began the Open Government Pledge in spring 2008 as part of a national effort to spur public commitments to government transparency from candidates for president down to city council contests.

For the 2008 and 2009 elections, 58 candidates for local or statewide offices signed the pledge. Of those, 28 were elected.

Signers are listed on the FOI Oklahoma Web site, where the pledge form is available for download.

Joey Senat, Ph.D.
Associate Professor
OSU School of Journalism

Friday, December 18, 2009

Enid officials won't identify two police officers placed on administrative leave because of homicide investigation

Enid officials won't tell the public which two police officers are under investigation because of how a homicide investigation was handled, the
Enid News & Eagle and The Oklahoman reported this week.

The two officers are on paid administrative leave, the newspapers reported.

The News & Eagle noted that the public statement it received from police officials said the officers were “suspended with pay.”

The public might never know the names of the officers.

A recent attorney general opinion said a public agency may keep secret the names of employees placed on paid administrative leave if, under the agency’s personnel policies, that action doesn’t constitute “a ‘final’ or ‘disciplinary’ action, nor a ‘final disciplinary action resulting in loss of pay, suspension, demotion, or termination.’” (
2009 OK AG 33)

The opinion came about after Oklahoma City officials refused to identify an employee placed on paid administrative leave during an investigation into the possible misuse of a federal grant.

Attorney General Drew Edmondson said once the investigation is complete and a final disciplinary action occurs, “the record(s) indicating that action must be must be available for public inspection and copying."

The Oklahoma Open Records Act makes public "any final disciplinary action resulting in loss of pay, suspension, demotion of position, or termination." (OKLA. STAT. tit. 51, § 24.A(7))

It permits, but does not require, public bodies to keep confidential the personnel records related to "internal personnel investigations including examination and selection material for employment, hiring, appointment, promotion, demotion, discipline, or resignation."

Enid police Capt. Jack Morris told The Oklahoman, "There is no disciplinary action taking place, and this is normal protocol.”

The News & Eagle reported that Enid City Attorney Andrea Chism disavowed any connection to the press release and called the use of the word suspension unfortunate.

According to both newspapers, the Oklahoma State Bureau of Investigation will conduct a criminal investigation into the officers' actions. An administrative investigation by the police department would follow.

“I’m not releasing the names until a decision is made on criminal actions or disciplinary action requiring the release of open records,”
Enid Police Chief Rick West told the News & Eagle.

Update: "Attorney for Grassino, Nichols comes forward with identities," Enid News & Eagle, Dec. 22, 2009.

Joey Senat, Ph.D.
Associate Professor
OSU School of Journalism

OKC discloses DOB of employee; newspaper learns he filed bankruptcy prior to city investigation

An Oklahoma City employee placed on administrative leave during an investigation into the misuse of grant money had filed personal bankruptcy a month before the city’s investigation began, The Oklahoman learned after city officials disclosed the employee's birth date late Tuesday.

The newspaper reported that city officials have not answered its request for all city employee birth dates. In an e-mail, a city attorney asked the newspaper for an explanation of the public interest in knowing that information.

City officials had refused since August to release the birth date of Ed Martin, the employee under investigation. A week ago, Assistant City Attorney Richard Smith said disclosure would be an unwarranted invasion of privacy.

Earlier that week, Oklahoma Attorney General Drew Edmondson said birth dates of public employees are presumed to be public records and should be released upon request.

"The only exception ... would be if the agency makes a specific finding that the release of the record would constitute a 'clearly unwarranted invasion of personal privacy,'" Edmondson said in a letter telling state agencies of his formal opinion on the subject.

Smith changed course on Tuesday, telling reporter Bryan Dean in an e-mail:

"Mr. Martin could claim that his date of birth is confidential, however, after much debate and consideration, the City has decided that Mr. Martin’s interest is outweighed by the public’s exercise of their political power.

"I trust that you and the Oklahoman will exercise the utmost care in deciding if you will publish this date of birth," Smith said.

The newspaper did not publish Martin's birth date.

Citing Edmondson's opinion, Smith also made a request of the newspaper.

"[T]o assist the City in the balancing test required by the revised opinion of the Attorney General, please advise me what you perceive to be the public’s interest in knowing each employee’s date of birth," he wrote.

For more on Edmondson's opinion, 2009 OK AG 33, read this blog's earlier posting.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

Thursday, December 17, 2009

Cleveland Co. DA refuses to disclose names of 20 people arrested on drug complaints a week earlier

Cleveland County District Attorney Greg Mashburn says he would be endangering the lives of people arrested Dec. 11 on drug complaints if he were to disclose their names to the public, The Norman Transcript reported today.

Mashburn told the newspaper he could not release the names of those arrested because some might not be charged in District Court.

"I will be putting lives in danger," he said.

The article doesn't provide Mashburn's reasoning for that claim.

The Oklahoma Open Records Act, however, explicitly requires law enforcement agencies to disclose the information.

"A. Law enforcement agencies shall make available for public inspection, if kept, the following records:

1. An arrestee description, including the name, date of birth, address, race, sex, physical description, and occupation of the arrestee;

2. Facts concerning the arrest, including the cause of arrest and the name of the arresting officer;

3. A chronological list of all incidents, including initial offense report information showing the offense, date, time, general location, officer, and a brief summary of what occurred;

8. Jail registers, including jail blotter data or jail booking information recorded on persons at the time of incarceration showing the name of each prisoner with the date and cause of commitment, the authority committing the prisoner, whether committed for a criminal offense, a description of the prisoner, and the date or manner of discharge or escape of the prisoner." (Okla. Stat. tit. 51, § 24A.8(A))

The newspaper said 10 people were believed to have been booked into the McClain County Jail and seven into the Cleveland County Detention Center. The whereabouts of the other three was unclear, the newspaper said.

Disclosing the names of people arrested serves to protect them. As several FOI Oklahoma members have noted regarding the story, we don't live in a state in which local authorities may arrest and incarcerate people in secret.

Joey Senat, Ph.D.
Associate Professor
OSU School of Journalism

Wednesday, December 16, 2009

New director of McAlester's economic development board suggests secret meeting so members' thoughts aren't publicized

The McAlester Economic Development Service's new director suggested Tuesday that the publicly funded board exclude the public from a meeting to discuss the group's plans, the McAlester News-Capital reported today.

“Sometimes you don’t need to have every thought publicized,” Shari Cooper told the board.

It was her first official meeting with the full board since being hired, according to the newspaper.

She's not off to a good start.

The MEDS board reportedly receives more than 90 percent of its funding from the city of McAlester.

A publicly funded group such as the MEDS may meet in closed executive sessions under the Open Meeting Act only for specific topics spelled out by the state Legislature. (OKLA. STAT. tit. 25, § 307)

As the newspaper's senior editor, James Beaty, pointed out today, "Protecting board members from having their statements publicized is not one of them."

Beaty said several board members "appeared visibly shocked" at Cooper's suggestion.

One board member is the newspaper's publisher, Amy Johns. She sits on the board by virtue of a by-laws requirement that a seat on the board be reserved for the local newspaper's publisher.

"You would think those board members at the time might have done that because they believe in transparency," Johns wrote in a Nov. 24 column about the board and the need for a strategic plan for the city.

Doesn't seem likely Johns would agree to the kind of closed meeting suggested by Cooper.

Just last week, the McAlester City Council was criticized by this blog and others for misusing an exemption under the Open Meeting Act and for voting on items not listed on the meeting agenda.

Let's hope a commitment to the public's right -- and need -- to know prevails on the MEDS board.

Joey Senat, Ph.D.
Associate Professor
OSU School of Journalism

Broken Arrow school board reveals names of two superintendent finalists

Two finalists for the Broken Arrow school superintendent job agreed Tuesday to allow their names to be disclosed to the public, The Broken Arrow Ledger reported today.

They released the school board from a confidentiality agreement that had prohibited public disclosure of their names, the newspaper said.

Kudos to these candidates for getting off to a good start by recognizing the public's need to know whom the board is considering for the job of superintendent. By knowing the qualifications of at least the finalists, the public is more likely to have confidence in the board's final choice.

The candidates are Jarod Mendenhall, the assistant superintendent of Union Public Schools, and Diane Gross, the assistant superintendent of Haysville Unified School District, in Haysville, Kan. They will visit Broken Arrow on Jan. 12 and Jan. 14, according to the newspaper.

A consultant overseeing the search said the finalists will meet with school district staff and Broken Arrow residents. The selection is expected in February.

The newspaper's story provides background on the two candidates.

Joey Senat, Ph.D.
Associate Professor
OSU School of Journalism

Oklahoma universities exempted from online database disclosing purchases by agency employees on state-issued credit cards

Taxpayers can now go to the Open Books Web site to learn what state employees are buying with state-issued credit cards, The Oklahoman reported today.

But don't expect to find what employees of the state universities and colleges have bought.

The newspaper's Paul Monies reports that higher education was exempted from the online disclosure law and have purchase card contracts separate from the rest of state government.

One of the bill's authors, Rep. Jason Murphey, R-Guthrie, said he was surprised to learn that higher education purchase card information isn't included in the online database.

"We’ll certainly look at adding them in future legislation," said Murphey, who signed FOI Oklahoma's Open Government Pledge in the 2008 election.

In the meantime, OSU is examining how to make its purchase card transactions available online, said spokesman Gary Shutt.

OU spokeswoman Catherine Bishop said that school would comply with Open Records Act requests for the purchase card data but has no plans to post the information online.

Monies notes on the newspaper's Right to Know blog that higher education "consumes 17 percent of the state budget."

"Don’t taxpayers deserve to know how that money is spent, too?" asks Monies.

Yes, they do -- and without having to request the records each time.

Joey Senat, Ph.D.
Associate Professor
OSU School of Journalism