Monday, June 29, 2009

County assessor's fee for electronic copy violates Open Records Act

Muskogee County can no longer charge more than $50 for an electronic copy of its database of all real property assessments, a district judge has ordered in a lawsuit over the county assessor’s records fees.

The county assessor’s practice of charging 5 cents for the first 25,000 records and 2 cents thereafter violated the Oklahoma Open Records Act because the charge was “not limited to recovering only the reasonable, direct costs of record copying and record search,” said Judge Norman D. Thygesen in a judgment and injunction issued June 18, 2009.

County officials had defended the practice as being in line with the fees approved by the Oklahoma State Assessors Association during the late 1990s.

But Thygesen’s ruling marks the second time an Oklahoma district judge has said those charges violate the state Open Records Act and barred a county from charging more than $50 for an electronic copy of an assessments database.

Both lawsuits are among a string of cases filed by Roger W. Hurlbert, an FOI Oklahoma Inc. member, over the fees charged by Oklahoma counties for electronic copies of their assessment databases.

“This is a long-standing issue of fee extortion and abuse by many Oklahoma assessors,” Hurlbert told the FOI Oklahoma Inc. blog on Monday.

Hurlbert, doing business as Sage Information Services in California, filed suit against Muskogee, Osage and Wagoner counties in 2007.

Hurlbert said negotiations with Wagoner County officials continue. A similar lawsuit he filed against Grady County in 2008 is pending.

Muskogee County commissioners agreed in September 2008 to settle with Hurlbert.

Hurlbert had offered to pay $50 for each county’s assessment database to be burned onto a CD. But Muskogee County Assessor Dan Ashwood said the cost for the 46,549 records would be nearly $1,700, the Muskogee Phoenix reported.

Under the state Open Records Act, public bodies “may charge a fee only for recovery of the reasonable, direct costs of record copying, or mechanical reproduction.” (OKLA. STAT. tit. 51, § 24A.5(3))

For microfiche or computer tapes, the “reasonable, direct costs” for copying should be “based upon the cost of materials [and] labor needed for providing the computer program and service to produce the requested data,” the Oklahoma Supreme Court said in 1992. (Merrill v. Oklahoma Tax Comm’n, 1992 OK 53, 831 P.2d 634, 642-43)

Hurlbert’s lawsuit alleged that Ashwood’s office could provide the database in about an hour from any computer in the office, the Muskogee Phoenix reported in 2008.

Hurlbert’s original lawsuits were drafted by Douglas A. Wilson of the Tulsa law firm of Riggs, Abney, Neal, Turpen, Orbison & Lewis. Wilson, who now practices in Stillwater and was elected to the FOI Oklahoma Inc. board of directors this year, is representing Hurlbert in his Grady County lawsuit.

In July 2008, a district judge issued a judgment and injunction favoring Hurlbert. The judge prohibited Osage County’s assessor from charging more than $50 for an electronic copy of the assessments database. The judge likewise found that charging 5 cents for the first 25,000 records and 2 cents thereafter to be an Open Records violation because it was “not limited to recovering only the reasonable, direct costs of record copying and record search.”

In both Osage and Muskogee counties, the judges have said Hurlbert is entitled to his reasonable attorneys’ fees and costs in the cases.

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

Saturday, June 27, 2009

Supporting documents for deferred prosecution agreement are public under Oklahoma ORA

Question from a reporter: Are a district attorney’s supporting documents related to a deferred prosecution agreement available to the public under the Oklahoma Open Records Act?

Yes, if the deferred prosecution agreement was made after 2000. See OKLA. STAT. tit. 22, § 305.1.

The framework on which this law was crafted is that DPAs were secret until the year 2000. The Oklahoma Press Association was able to secure legislation opening DPAs. But under a compromise with the district attorneys, DPAs entered into prior to the effective date of the law would remain sealed unless confidentiality was waived as part of the original agreement.

For example, former Oklahoma County DA Bob Macy always made confidentiality waivers part of the agreement, so he could have released those made prior to the year 2000. Not so with many other district attorneys.

OKLA. STAT. tit. 22, § 305.5 says DPAs "shall not be released" to anyone who will "use the information for dissemination to the general public." But it also says the provisions of this subsection "shall apply only" with respect to information received or collected … entered into by the parties relating to crimes committed prior to the effective date of this act, unless such information is otherwise deemed confidential by law."

In short, unless some other law closes the supporting information, then it would be open if the DPA was agreed to by the parties after the year 2000.

OKLA. STAT. tit. 22, § 305.2.H.2 says any DPA entered into "prior to the effective date of this act" shall not be a record open to the public, unless confidentiality was waived as a condition of the agreement." That seems to say that all DPAs entered into after the law was effective, including the documentation if no other law excludes it, would be open.

If you cobble together other tidbits of logic, you can also make the same case with subsection 305.4, under which the information becomes confidential when the person completes the program. In other words, records should be open while the person is engaged under the DPA.

A district attorney who decides to terminate the DPA has to tell the other side why the agreement is being terminated, and that is an open record. If the DA terminates an agreement that was entered into prior to the effective date of this act, those supporting documents are open.

Answer provided by Mark Thomas, executive vice president, Oklahoma Press Association

Monday, June 22, 2009

Oklahoma Highway Patrol dash-cam videos should be public

More than $1.4 million in Oklahoma taxpayers' money has been spent outfitting the Highway Patrol with state-of-the-art digital dash-cams in the past year but keeps such videos secret unlike most other states in the region, The Oklahoman and Tulsa World reported this week.

As noted in earlier posting by this blog, legislators closed access to the videos in 2005 at the request of the OHP and Department of Public Safety.

In Sunday's Tulsa World, OHP spokesman Capt. Chris West said the agency requested the recordings be closed to the public largely out of concerns for both trooper safety and the privacy of residents.

"I can assure you it's not about secrecy; it's confidentiality," West said.

Then why are such videos public elsewhere in the country?

There is a clear, legitimate and compelling public interest in making such videos open for public inspection. Access to police dash-cam videos in other states have revealed abusive behavior by law enforcement agents and also exonerated officers of such claims.

In Oklahoma, DPS officials release the videos when it suits them.

West told The Oklahoman that the only other time he could recall OHP voluntarily releasing video was in the 2003 killing of Trooper Nikky Green in Cotton County.

"In our opinion, that was night and day,” West said. "We were trying to catch a cop killer.”

But DPS recently denied a request by The Oklahoman to review video footage of a November 2008 incident in Henryetta where a trooper faces a misdemeanor assault and battery charge in the alleged beating of a handcuffed female suspect.

DPS officials can choose which videos it releases because the state statute limiting public access says the department "may" keep them secret.

Oklahomans rightfully should expect state legislators next session to undo the damage they did to the public's right to know in 2005. Close the exemption.

If legislators won't do it, then let's hope the next governor will order his Department of Public Safety to make all the videos public as a matter of routine.

Let's not forget that the DPS works for the governor and the governor works for us.

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

Saturday, June 20, 2009

Oklahomans don't know their First Amendment rights

No, the First Amendment doesn't grant the right to own a pet or drive a car. Property rights and the right to bear arms aren't in it either.

Oklahomans' ignorance of their fundamental federal rights is demonstrated on a
video shot by my team of OIDJ students in the past week. The print story discusses the disappearance of civics education in schools.

We didn't have time to include video of the students' other questions, which included:

Who are Oklahoma's two US senators? (Tom Coburn's gotta work on his name recognition. Surprising.

Which Oklahoma court hears appeals of criminal convictions? (No one knew about the Oklahoma Court of Criminal Appeals. Not surprising. But still disappointing.)

How many justices are on the Oklahoma Supreme Court? (Most either didn't know or said eight. Some guessed to get the correct number of nine.)

Makes for an interesting story.

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

Friday, June 19, 2009

Ex-Boynton official faces trial for Open Records Act violations

Former Boynton Town Clerk/Treasurer Pauline Osburn was charged in May with two counts of violating the state Open Records Act.

Osburn had refused to grant town trustees access to the town's water records. She resigned May 26.

This is a prime example of why public access to government records is so important.

From the records, officials learned the town has about $15,000 in the bank but more than $40,000 in debts. At the same time, the city is owed thousands of dollars for delinquent water bills. One resident owes more than $8,000.

Osburn's jury trial is scheduled for July 27.

Donna Hales of the Muskogee Phoenix has written some excellent stories outlining the problems facing the town.

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

Can subsequent public discussion/action remedy an executive session violation under the OMA?

Question from an elected official: We held an executive session and the discussion went beyond what was on the agenda. What is the remedy for the subsequent action which the [public body] may or may not take since the discussion was not legal?

Placing the item on an agenda for subsequent public discussion and action will not excuse the original criminal violation of the Open Meeting Act’s executive session provision.

In 1981, the Oklahoma Court of Civil Appeals rejected the argument that subsequently ratifying an action or decision made in violation of the Open Meeting Act would cure the violation. (Matter of Order Declaring Annexation, Matter of Order Declaring Annexation, Etc., 1981 OK CIV APP 57, 637 P.2d 1270, 1274)

In that case, school board members had violated the statute while acting on an annexation later ratified by county voters.

“The election did not rectify the harm to the public because the harm did not lie in the annexation itself,” said the court. “The harm lay in the lack of proper notice and agenda, notice and agenda which are crucial to the Sunshine Law’s purpose. The election did not ‘cure’ these violations.”

Placing the item on the agenda for public discussion and action might keep that action itself from being declared invalid. Any action taken in “willful violation” of the Open Meeting Act is “invalid.” (OKLA. STAT. tit. 25, § 307)

A willful violation of the executive session provisions also causes the minutes and other records of the session, including tape recordings, “to be immediately made public.” (OKLA. STAT. tit. 25, § 307(F)(1-2))

I would urge any public body in this situtation to make public the minutes, including any tape recording, of the executive session and fess up to the mistake. That might mitigate any prosecution or civil lawsuits over the violation. It would certainly go a long way toward maintaining the public's trust in its government officials.

Joey Senat, Ph.D.
Associate Professor
OSU School of Journalism
"Mass Communication Law in Oklahoma"

Saturday, June 13, 2009

OHP releases dashboard camera video

Late Friday, the Oklahoma Highway Patrol released the dashboard camera video showing a scuffle between a trooper and a Creek Nation paramedic. An OHP spokesman said "it was in the best interest of the public" to release the video.

The OHP had repeatedly denied reporters access to the video during the week even though the public interest was just as obvious then.

Perhaps the video was released because a cell phone video of the incident had been posted on YouTube.

Why are OHP dashboard camera videos not considered public records? Because, as an earlier posting on this blog explained, state Department of Public Safety officials persuaded legislators to block public access in 2005.
(OKLA. STAT. tit. 51, § 24A.3(1)(h)(1-3) (effective Nov. 1, 2005))

That came after
an Oklahoma County district judge had barred OHP "from keeping videotapes of traffic arrests secret.” (Nolan Clay, Highway patrol ordered to stop withholding tapes, THE OKLAHOMAN, Mar. 3, 2005, at A6)

Public Safety Commissioner Kevin Ward believes in transparency, an OHP spokesman said this week. That comment came after the Oklahoma County district attorney received an internal OHP investigation
into claims that Ward and an OHP official had patrol helicopter pilots take them, friends and family members on personal rides.

If Ward and other DPS and OHP officials believe in transparency, that would be a welcomed change. In the past, DPS officials have successfully sought statutory exemptions blocking public access to records.

In May 2005, legislators specifically exempted DPS records relating to “training, lesson plans, teaching materials, tests, and test results;” tactical policies, procedures and operations; and from radio logs, any telephone numbers, personal information protected by the federal Driver’s Privacy Protection Act and “addresses other than the locations of incidents to which officers are dispatched.” (OKLA. STAT. tit. 51, § 24A.8(G)) (effective Nov. 1, 2005)).

The exemptions were a compromise between DPS and the Oklahoma Press Association. DPS originally sought to keep secret a number of records the Tulsa World had won access to during a three-year court battle with the agency.

In February 2005, an Oklahoma County district judge had ordered DPS to release “a list of documents and computerized data including records concerning the use of force by state troopers, a database of police dog searches, a list of lawsuits and other legal actions involving the agency.” (Marie Price, House gets bill on data access, TULSA WORLD, Mar. 13, 2005, at A19. See also Ziva Branstetter, Judge orders OHP parent agency to give records to World, TULSA WORLD, Feb. 5, 2005, at A13)

As originally drafted, the subsequent legislation would have limited public access to only single-incident reports and not sets of computer data that could be used to determine demographic or other law enforcement trends.

If Ward truly now believes in transparency, perhaps he would support legislative efforts to reverse the exemptions, starting with making all OHP dashboard camera video available to the public.

It was a mistake for the Legislature to hide those records from the public. Perhaps the 11 House members who have signed FOI Oklahoma's Open Government Pledge will attempt next session to strip away the statutory shroud of secrecy wrapped around the DPS and OHP in 2005. The public should expect them to do so.

By Joey Senat, Ph.D.
Associate Professor
OSU School of Journalism and Broadcasting
"Mass Communication Law in Oklahoma"

Tuesday, June 9, 2009

Are discussions of pending investigations exempted under the Oklahoma Open Meeting Act?

(Question received today from a reporter.)

Yes. The exemption is for confidential communications between a public body and its attorney concerning a pending investigation, claim, or action if the public body, with the advice of its attorney, determines that disclosure will seriously impair the ability of the public body to process the claim or conduct a pending investigation, litigation, or proceeding in the public interest. (OKLA. STAT. tit. 25, § 307(B)(4).)

“A ‘pending’ claim can refer to litigation or an administrative action which either presently exists or is merely potential or anticipated,” Oklahoma Attorney Drew Edmondson has said. (2005 OK AG 29, ¶ 13)

“We note at the outset that ‘pending’ investigations, claims, and actions must refer to a wider class of things than those already in existence; otherwise, the term ‘pending’ would be superfluous. ‘Pending’ is not defined in the OMA or elsewhere in the Oklahoma Statutes. In such cases, the ordinary meaning of a word is used. The dictionary defines ‘pending’ as "not yet decided : in continuance: in suspense’ or ‘until the occurrence or completion of : while awaiting.’ Webster's Third New International Dictionary 1669 (3d ed. 1993). The first definition connotes something already in existence, while the second includes things not yet existing. Thus, ‘pending’ can refer to an investigation, claim or action which either presently exists or is merely potential or anticipated,” he said. (Id. ¶ 9)

However, he added:

“The Legislature did not exempt from public scrutiny every discussion between a public body and its attorney involving a ‘pending investigation, claim, or action.’ Rather, such issues may be discussed in executive session only if the public body and its attorney determine that disclosure will ‘seriously impair’ the body’s ability to deal with the issues in the public interest. This limitation on the basis for an executive session . . . means a public body may not close a meeting merely to get general legal advice from its attorney that does not meet the standard of serious impairment and injury to the public interest.” (Id. ¶ 11)

Joey Senat, Ph.D.
Associate Professor
OSU School of Journalism and Broadcasting
"Mass Communication Law in Oklahoma"

Are Oklahoma Highway Patrol dashboard camera videos a public record?

(Question received today from a reporter.)

No. Public access to the state Department of Public Safety’s audio and video recordings was curtailed by legislators in May 2005. (2005 O.S.L. 199, § 4 (adding OKLA. STAT. tit. 51, § 24A.3(1)(h)(1-3) (effective Nov. 1, 2005))

In March 2005, an Oklahoma County district judge had “barred the Oklahoma Highway Patrol from keeping videotapes of traffic arrests secret.” (Nolan Clay, Highway patrol ordered to stop withholding tapes, THE OKLAHOMAN, Mar. 3, 2005, at A6) An attorney specializing in drunken-driving cases had sued DPS after it refused to release the videotape of such an arrest without the driver’s written consent first.

“We continue to find that many officers make up evidence and exaggerate their testimony about the events. These tapes are extremely important to a citizen who is wrongly accused,” said attorney Stephen G. Fabian Jr.

Fabian had used the Open Records Act to gather hundreds of such videotapes from police departments and OHP.

The subsequent legislative changes to the Act exempted DPS’s audio and video recordings.

In June 2005, Fabian told me he would still be seeking – and likely receiving – the tapes in criminal proceedings via subpoenas.

(Telephone Interview with Stephen G. Fabian Jr., Senior Partner, Fabian & Associates Inc., P.C. (June 16, 2005))

Joey Senat, Ph.D.

Associate Professor
OSU School of Journalism and Broadcasting

“Mass Communication Law in Oklahoma”

Friday, June 5, 2009

Welcome to FOI Oklahoma Inc.

Afternoon session today at the NFOIC Summit in Minneapolis emphasized using new technology, such as blogs, Twitter and RSS Feeds, to get our message and information to the public. So here we are.

We'll be joining Twitter and adding an RSS Feed soon.

We be posting information related to open meetings and records in Oklahoma. Feel free to ask questions about open government in the state.

-- Joey Senat, Ph.D.