Tuesday, September 29, 2009

Must city councils and other local public bodies keep electronic recordings of meetings once the written minutes are completed?

Question from the public: I recently requested copies of electronic recordings of a committee subject to the Oklahoma Open Meeting Act. The city attorney said the electronic copies don’t exist because the secretary disposed of the recordings after using them to write the meeting minutes. Is the public body required to keep the recordings? I believe Fabin v State (2004 OK 67) covers this very thing.

Unfortunately, state law doesn’t appear to require local public bodies to keep electronic recordings of public meetings after the written minutes are created.

However, no state statute requires that the city destroy (or reuse) the recordings. In other words, no state statute prohibits the city from keeping the recordings.

Therefore, this is a policy question. It best serves the public in a democracy to retain the recordings for a certain number of years. Seek an on-the-record explanation from the elected city officials as to why the electronic recordings of all public meetings are not retained. Perhaps they would decide that future recordings should be kept. If they don’t, this could be an issue for the next municipal elections.

State law does require that the city establish a schedule regarding the retention and destruction of records. What is the city’s retention schedule for records?

Fabian is not necessarily applicable because it concerned the records of state government, not a local government.

At issue in Fabian was whether the Department of Public Safety was required to retain electronic recording of administrative hearings concerning revocation of drivers' licenses. (Fabian & Associates v. State ex rel. Dept. of Public Safety, 2004 OK 67)

The court did not prohibit DPS from ever destroying the tape recordings but said it could do so only “in accordance with The Records Management Act.” (Id. at ¶19)

So we should look to The Records Management Act and to interpretations of the statute for guidance.

The Attorney General’s Office has noted, "The Records Management Act does not apply directly to local governments.” (2002 OK AG 13 ¶5) (see also 2009 OK AG 12, 2001 OK AG 46)

The state statute explicitly differentiates between the records held by the state and those held by local governments. (OKLA. STAT. tit. 67, § 203)

The statute requires the governing body of each county, city, town, village, township, district and authority to, “as far as practical, follow the program, established for the management of state records.” (Id. at § 207)

In at least two formal opinions, the state attorney general has said that under the statute, “political subdivisions are mandated by the Legislature to maintain a records management program, and, ‘as far as practical,’ utilize the program established by the Records Management Act, with the assistance of the Administrator.” (2002 OK AG 13, ¶7) (see also 2001 OK AG 46)

In other words, the attorney general has said, local governments “are not exempt from records management and must use the State Records Management Act as a model to the extent practical.” (2002 OK AG 13, ¶3)

“Such a schedule would determine the amount of time the records must be kept, and in what form. What constitutes ‘as far as practical’ is a question of fact beyond the scope of an Attorney General Opinion. Likewise, the length of time to keep a particular record hinges on the nature of the specific record, which also constitutes a question of fact beyond the scope of an Attorney General Opinion,” the attorney general said in 2005. (Id. ¶8)

Based on the statutory language and the attorney general opinions, the city would not be required to keep its recordings of public meetings once the written minutes are created.

I welcome explanations to the contrary.

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

FOI Oklahoma Inc. seeks nominees for the Justice Marian Opala First Amendment Award

FOI Oklahoma Inc. is seeking nominees through Oct. 16 for the Justice Marian Opala First Amendment Award.

The award recognizes an Oklahoman who has promoted education about or protection of the individual rights guaranteed by the First Amendment, which include freedom of religion, speech, press, peaceful assembly, and the right to petition the government for redress of grievances.

Previous recipients include civil rights leader Clara Luper and state Attorney General Drew Edmondson.

Nominations for the award should include the nominee's name, address, brief biographical information and what the person has done to promote education about or protection of the individual rights guaranteed by the First Amendment.

Nominations may be sent to FOI Oklahoma Inc., P.O. Box 2408, Edmond, OK 73083, or e-mailed to kaybickham@sbcglobal.net.

This year’s recipient will be honored Oct. 29 during the 11th annual First Amendment Congress Professional Day session at The Oklahoman in Oklahoma City.

The award was initiated in 2002 to honor
Justice Marian Opala, a Polish immigrant who exemplifies a belief in the rights guaranteed under the First Amendment. Opala was appointed to the state Supreme Court in 1978 and served as chief justice in 1991-92.

Opala, born in 1921, had just enrolled in law school when Nazi Germany invaded Poland in 1939. He enlisted in the Polish Army and later fought as a member of the Polish Resistance Movement. He was captured in 1944 and held in a concentration camp in Bavaria. When the camp was liberated in 1945, Opala was befriended by a 45th Infantry Division
captain from Oklahoma City. Opala settled in Oklahoma City in 1947 and became a U.S. citizen in 1953.

Opala is well-known as a strong advocate of First Amendment rights. He attributes that commitment to his experiences in Nazi-occupied Poland.

FOI Oklahoma is a statewide organization founded in 1990 to educate the public and officials about rights guaranteed by the First Amendment and to actively support openness in government.

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

Saturday, September 26, 2009

Oklahoma Secondary Schools Activities Association must be accountable to taxpayers, students

(Danny Rennels, OSSAA’s former executive secretary, pleaded guilty
Thursday to embezzling $421,500 from the organization. He admitted to taking the money to pay off loans and gambling debts. He will not go to prison and has 30 days to pay restitution.

OSSAA regulates not only high school sports in Oklahoma but also other activities such as music, speech and debate competitions.

The following is a recent column by Oologah Lake Leader Publisher John M. Wylie II in which he makes a case for OSSAA to be subject to the state’s open government laws.)

We’re not sure what the most shocking revelation was when Danny Rennels, who served for a decade as the chief regulator of Oklahoma high school athletics and activities, was charged with felony embezzlement Monday. Among the revelations contained in a probable cause affidavit used to secure an arrest warrant:

• The total amount taken is at least $457,500—almost five times the amount acknowledged by his employer, the Oklahoma Secondary Schools Activities Association, when it fired him in March. According to the affidavit, Rennels has admitted embezzling the funds.

• The man responsible for ensuring legal and ethical conduct of student athletes admitted to OSSAA officials that he spent the money on Internet gambling.

• He apparently took $100,000—the first installment under a five-year endorsement deal with Reebok that required all Oklahoma schools to use their basketballs in tournament play even though the schools weren’t consulted—that school officials were told would provide catastrophic injury insurance for high school athletes.

• Even though OSSAA is governed by a board composed of school officials, “Rennels had exclusive control over the day-to-day handling and expenditure of OSSAA funds.”

• Rennels’ fund diversions began with $16,000 in rights fees from an Oklahoma City television station in 2005 and escalated to $174,000 in rights fees and sales of a prime billboard location in 2006. He obtained an OSSAA credit card in 2007 which he used for personal expenses totaling $26,000 over two years and embezzled another $14,000 in TV rights fees. In 2008 it was $217,000 (including the Reebok money) and in 2009—when he was employed for just three months--$161,000.

• Although the DA investigator handling the case wanted 10 felony counts filed, his boss filed only one and bond was set at a measly $2,000.

Why is the last point important? Because it reeks of a deal in the works, and since OSSAA is classified as a “private, non-profit” organization it is not subject to the state’s Open Records act. (New Executive Secretary Ed Sheakley said no one has ever submitted a request for records and he is uncertain how such a request would be handled.)

Never mind that OSSAA regulates the lives of every student athlete and activity participant in the state.

Never mind that it wouldn’t have a dime without drawing funds from taxpayer-supported programs ranging from football to debate.

Never mind that taxpayers have no way to ensure that OSSAA is properly handling their money.

The Rennels case makes it abundantly clear that OSSAA must be classified as a public agency. It is funded with public money and should be subject to all the laws that go with that—including annual state audits. Giving OSSAA the discretion to choose what state transparency laws it follows would clearly be a case of letting the fox guard the henhouse.

We hope lawmakers will make OSSAA’s status clear in the next session. Lawmakers who balk can expect stiff opposition in November 2010.

It is the public’s money, not OSSAA’s, and the public has a right to know that it is being spent responsibly.

Oklmulgee officials charged with violating Open Meeting Act

Members of the Okmulgee County Criminal Trust Authority, including the county sheriff and city police chief, were charged Thursday with 38 counts of violating the Oklahoma Open Meeting Act.

They are accused of unauthorized voting in executive session, failure to give notice of action actually taken, failure to record each member’s vote and two counts of failure to give notice of action taken, according to published reports by Sheila Stogsdill in the Tulsa World and The Oklahoman.

The charges stem from meetings occurring from Dec. 7, 2006, to Feb. 1, 2007.

Stogsdill reported that court records don't indicate the next court date for the men.

The case is being prosecuted by Muskogee County District Attorney Larry Moore.

A violation of the Open Records Act is a misdemeanor punishable by a fine up to $500 and/or up to one year in the county jail. (OKLA. STAT. tit. 51, § 24A.17(A))

More details on the charges are available in Stogsdill's stories.

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

Tuesday, September 22, 2009

Does the Open Meeting Act permit a school board to meet 80 miles outside its district?

Question from the public: Our school board recently called for a special school board meeting. The board was to discuss school safety, stimulus money, general operational procedures, facilities/master growth development, and departments. Is it OK for a special school board meeting to be held on a weekend at a resort approximately 80 miles from our school district, so long as the special meeting is posted?

I disagree that it’s OK for a school board to conduct a special meeting 80 miles from its district. I believe it violates the spirit and letter of the Open Meeting Act.

That also seemed to be the belief of the Attorney General’s Office a decade ago.

Under the Open Meeting Act, meetings must be held at “specified times and places which are convenient to the public.” (OKLA. STAT. tit. 25, § 303)

For example, a county excise board’s meeting at a courthouse locked and closed for the Labor Day holiday did not comply with the Open Meeting Act, the state Supreme Court held in 1984. (Rogers v. Excise Bd. of Greer County, 1984 OK 95, ¶14, 701 P.2d 754, 761)

The board’s “failure to hold the meeting at a place convenient and accessible to the public” was a willful violation of the Open Meeting Act, the court said.

I would argue that a meeting site 80 miles from the district is not convenient to the public.

The Open Meeting Act stresses, "It is the public policy of the State of Oklahoma
to encourage and facilitate an informed citizenry’s understanding of the governmental processes and governmental problems.” (OKLA. STAT. tit. 25, § 302)

That policy seems thwarted by conducting the meeting 80 miles from the district’s voters.

In spring 1998, the head of the AG Office’s civil division said the thrust of the Open Meeting Act is that a strictly local organization would be prohibited from holding a retreat outside its jurisdiction, according to an article by Wayne Trotter in the FOI Oklahoma Newsletter.

"It's a common sense deal. You need to have your meetings where your constituents are," Vic Bird reportedly told public officials and the public attending an open government workshop conducted by the AG's Office.

"The whole purpose of the Open Meetings Act is to facilitate democracy," Bird said.

On a different note, if I were a voter in the school district, I would ask if the school board is spending tax dollars to meet at a resort 80 miles away -- especially if it could meet for free in its own building or regular meeting hall.

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

Monday, September 21, 2009

Former Boynton official's trial on open records violations set for October

Former Boynton Town Clerk/Treasurer Pauline Osburn’s jury trial on two counts of violating the state Open Records Act has been scheduled for Oct. 26.

Osburn was charged in May after refusing to grant town trustees access to the town's water records. She resigned May 26.

Once officials had the records in hand, they learned the town had about $15,000 in the bank but more than $40,000 in debts. At the same time, the city was owed thousands of dollars for delinquent water bills. One resident owed more than $8,000, The Muskogee Phoenix reported.

The newspaper originally reported Osburn’s jury trial was scheduled for July 27.

However, that was apparently the date set for her disposition hearing, which was then rescheduled for this past Thursday.

An editor at the newspaper confirmed Monday that Osburn’s jury trial has been set for Oct. 26.

Osburn was 73 when she was charged.

A violation of the Open Records Act is a misdemeanor punishable by a fine up to $500 and/or up to one year in the county jail. (OKLA. STAT. tit. 51, § 24A.17(A))

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

Tuesday, September 15, 2009

Open Government Pledge signers advance to general elections for Tulsa municipal offices and House District 55 seat

Six signers of FOI Oklahoma Inc.’s Open Government Pledge will be on Tulsa’s municipal general election ballot Nov. 10.

A seventh signer, Republican Bill Christiansen, was re-elected to his Tulsa City Council District 8 seat in the Sept. 8 primary. He received 50 percent of the vote.

The House District 55 general election ballot on Oct. 13 will include signer Todd Russ, a Republican.

By signing the pledge, candidates promised “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.”

Municipal candidates also specifically promised that they and the public bodies they are “elected to govern will comply with not only the letter but also the spirit of Oklahoma's Open Meeting and Open Records laws.”

In Tulsa's mayoral race, both party nominees, Democrat Tom Adelson and Republican Dewey Bartlett Jr., signed the pledge prior to the primary. Bartlett, however, has been criticized for having his divorce case sealed a day or so after signing the Open Government Pledge.

Other signers on the Tulsa ballot are Roscoe Turner, Democrat, Dist. 3; Jim Mautino, Republican, Dist. 6; G.T. Bynum, Republican, Dist. 9; and Phil Wood, Democrat, city auditor.

Legislative candidates specifically “pledge to support legislation to strengthen the letter and the spirit of Oklahoma's Open Meeting and Open Records laws.”

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

Thursday, September 10, 2009

First Amendment Congress / Essay Contest for High School & College Students

FOI Oklahoma's 11th Annual First Amendment Congress will be Oct. 28-29. Updates on the event will be on the FOI OK Web site. We're also conducting our annual First Amendment Essay Contest for high school and college students in conjunction with the congress. Below is information on the congress and the essay contest.

High School Day
Tom Steed Center, Rose State College
Wednesday, Oct. 28

Today’s generation has embraced a new way of communicating, and this new social media is transforming how we share information. Sessions for High School Day include:

• A debate between two Oklahoma high school teams on the impact of Internet News, Twitter, Facebook, Blogs, and other new media on traditional journalism.

• The First Amendment Rights of High School Students (Yes, you have them!)

• Smart Social Networking: You like to share your life online, but should you always hit send? The glory and the pitfalls of communicating in cyberspace.

The First Amendment Congress is ideal for students in social studies, journalism and government classes, and an excellent opportunity for student leaders, teachers and school administrators.

Professional / College Day (ALSO open to the General Public)
The Oklahoman Tower, 9000 N. Broadway
Thursday, Oct. 29

Our special guest for the day will be Marvin Kalb, award-winning journalist and moderator of The Kalb Report.

For more than 200 years, America has depended on its press—the Fourth Estate—to be the watchdog of government. The growth of Internet news sites, blogs, and other social media — coupled with the economic downturn — make it increasingly difficult for traditional news media to stay in business. For those that can hang on, many are cutting staff and are unable to fund the investigative journalism that has exposed wrong-doing in the past. Where is the press heading in this new environment?

We’ll explore the Fairness Doctrine, look at the business side of journalism, and discuss how we can make sure a watchdog role remains preeminent during this journalistic transition.

Professional Day features CLEs for Attorneys!

First Amendment Essay Contest
Oklahoma high school students and college undergraduates can win cash prizes by entering the 2009 First Amendment Congress Essay Contest, sponsored by FOI Oklahoma Inc. Entrants have until Oct. 2 to submit their essays.

For this year's essay, young writers are asked to consider the question: "What is the impact of Internet news, blogs, and social networking sites on the traditional role of the media as a watchdog of government activity?"

Entries should be about 500 words, typed, double-spaced, including the student's name, grade, school, mailing address, phone number and e-mail address. Entries must be e-mailed to The Oklahoman's News Research Editor, Linda Lynn, at LLynn@oklahoman.com.

Prizes will be awarded to the first-, second-, and third-place winners in both high school and college categories.

High School winners will be recognized on Oct. 28 during the First Amendment Congress Education Day at Tom Steed Center in Midwest City. College winners will be honored Oct. 29 during the event's Professional Day at The Oklahoman in Oklahoma City.

For questions concerning the essay contest, contact Linda Lynn at 405-475-3676. For information about the 2009 First Amendment Congress, contact Kay Bickham at 405-341-3169.

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

Sunday, September 6, 2009

Tulsa World sues to win release of mug shots of federal inmates housed in the Tulsa Jail

The Tulsa World is taking on the U.S. Marshals Service in court over the public's right to obtain mug shots of federal inmates housed in the Tulsa Jail.

The newspaper sued the U.S. Marshals Service on Friday, seeking the release of the photos, the newspaper reported today.

The U.S. Marshals Service cites privacy rights as the reason for withholding the photos. But jail mug shots are public under the Oklahoma Open Records Act, the newspaper noted.

Claiming a privacy right should shield the photos from public scrutiny seems to defy common sense.

The newspaper's lawsuit points out that each federal inmate's name, home city and/or street address, alleged crime, alleged elements of the crime, plea, request for release, bond, previous crimes committed and risk of flight are among the information already released to the public.

The newspaper also noted that the U.S. Marshals Service also releases the photos of inmates who become fugitives and posts on its Web site the photos of captured fugitives.

The photos also are public in Kentucky, Ohio, Michigan and Tennessee because of newspaper challenges in the 6th U.S. Circuit Court of Appeals.

The newspaper's reasons for seeking the photos are explained in its story.

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

Saturday, September 5, 2009

Tulsa mayoral candidate signs Open Government Pledge, then asks court to seal his divorce case from public view

A Tulsa County special district judge Thursday sealed the divorce file of Tulsa mayoral candidate Dewey Bartlett Jr. at his request, the Tulsa World reports today.

Bartlett’s request came a day or so after FOI Oklahoma Inc. received his signed Open Government Pledge “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.”

Note to Mr. Bartlett: Sealing court records isn’t supporting the public’s right to know.

Bartlett cited fears of identity theft as the reason for closing the case, which was filed in 2002.

Michael Bates had begun posting a small portion of the case file on his conservative blog Batesline earlier in the week. Bates told the newspaper he had redacted all the sensitive information before posting them.

Regardless, Bartlett’s argument for closure is a specious one.

As The Oklahoman reported earlier in the week during its battle with Oklahoma City officials over the release of an employee’s birth date, open government advocates nationally say the fear that releasing private information from public records will cause identity theft is unjustified. (Read related blog.)

“Those fears aren’t backed up with statistics or even anecdotal evidence showing public records are a source for identity thieves,” reporter Bryan Dean summarized.

Public records were not listed as a significant source of identity theft by the 2006 Identity Fraud Survey Report co-released by the Better Business Bureau. It said 30 percent of identity theft came from stolen wallets or purses, 15 percent from close associates such as friends and family, 9 percent from stolen mail and garbage, and 9 percent from computer hacking.

The Tulsa World reported in early August 2008 on the growing problem of Oklahoma judges closing public access to court files, estimating that judges had sealed at least one record in more than 2,300 cases statewide.

Reporter Ginnie Graham revealed that documents removed from public view included financial records of companies and hospitals, settlements in wrongful-death lawsuits, divorce proceedings, protective orders and name changes.

So why should Bartlett’s divorce case remain open to public scrutiny?

First, the public is entitled to make the most informed choice possible when selecting who will operate its government. Divorce files, like many other court records, can provide valuable information about a candidate.

For example, Bartlett said the case file included financial information not just about him but also former and current business partners. The public should know about the business dealings of its would-be elected officials. More information about candidates helps us better exercise our inherent political power.

Second, if Bartlett’s records in the public court system are closed, why not seal everyone’s files?

Because the information in those court files can help each of us make more informed life-affecting decisions. Choosing a business partner? Hiring an employee? Selecting a doctor, baby-sitter or day-care provider for your child? Concerned about your daughter’s new boyfriend? Etc.

Personal information in government-held records can help us make better decisions about the people and events most important in our lives.

Third, access to court records assures the public that everyone is treated equally in our judicial system and that decisions aren’t “based on secret bias or partiality” – as the U.S. Supreme Court said in defense of open courts.

“Closed trials breed suspicion of prejudice and arbitrariness, which in turn spawns disrespect for law,” the Court said. The same can be said for court records sealed from public view.

Bartlett told the Tulsa World he would be “glad for any member of the legitimate media to have total access” to his divorce file. If elected mayor, would he restrict access to other government documents only to the “legitimate media”? Will he be the one to decide who is a member of the "legitimate media"?

The public’s right to know belongs to the public. That means everyone, including political bloggers.

Signing the Open Pledge is a promise to support the spirit of open government – even when it inconveniences the candidate.

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

Friday, September 4, 2009

OKC officials to seek AG opinion on release of birth dates

Oklahoma City officials want it in writing.

Oklahoma Attorney General Drew Edmondson earlier this week said the city should release the birth date of an employee placed on administrative leave during an investigation.

Edmondson's comments came during an open government workshop in Tecumseh on Monday.

The Oklahoman reported Wednesday that two Oklahoma City Council members have asked City Manager Jim Couch to seek an official written opinion from Edmondson's office on the DOB issue.

City Councilman Gary Marrs told the newspaper he is worried the city could be sued if it releases the birth date.

But public bodies and public officials "providing access to records as allowed under the Oklahoma Open Records Act" cannot be held civilly liable for damages. (OKLA. STAT. tit. 51, § 24A.17(D))

Couch's staff will draft the question and ask a state legislator to submit it to the Attorney General's Office. Couch said the question might also ask for an opinion on whether the city must release the names of employees placed on administrative leave.

OKC officials have refused to identify a second employee placed on administrative leave while the management of a federal grant is investigated. Officials had said the first employee was suspended and identified him. Then they backtracked, saying he was placed on administrative leave and that his name should not have been released to reporters, The Oklahoman reported.

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

Tuesday, September 1, 2009

OK AG says OKC officials should release DOB of employee placed on administrative leave

Our state attorney general on Monday added his voice to the chorus of open government experts calling for Oklahoma City officials to release the birth date of an employee placed on administrative leave during an investigation of a federal grant.

Speaking at an open government workshop in Tecumseh, Drew Edmondson also said OKC officials should consider whether identifying a second employee placed on administrative leave would serve the public good, The Oklahoman reported today.

He said governments should err on the side of transparency regarding the release of dates of birth of employees. OKC officials have argued that releasing the birth date of the employee would be an unwarranted invasion of privacy.

However, Edmondson said it’s difficult to contend that birth dates are private when they are found in a number of public records – an argument made in this blog and in The Oklahoman
in the past week.

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