Monday, August 31, 2009

FOI advocates chide OKC officials for not releasing employee’s DOB

The Oklahoman isn’t letting up on Oklahoma City officials who refuse to release the birth date of an employee placed on administrative leave while officials investigate the management of a federal grant.

In today’s article, freedom of information experts said the fear that releasing DOBs from 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,” reporter Bryan Dean summarized.

In an editorial today, the newspaper also took issue with the city’s refusal to release the name of another employee placed on administrative leave during the investigation. The editorial pointed out that the Open Records Act doesn’t prohibit the city from releasing the name or information about disciplinary actions. The newspaper called on city officials to “err on the side of transparency.”

City officials a week ago said the director of the program being investigated had been suspended. His name was released. The next day, city officials backtracked, saying he had been placed on administrative leave along with another employee, whom they refused to identify, the newspaper reported.

In refusing to release the birth date of the program director, city officials cited a statutory exemption allowing them to keep secret some information in personnel files if the release would "constitute a clearly unwarranted invasion of personal privacy.”

Birth dates are personal. But are they truly private?

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."

In Oklahoma, birth dates can be found in voter records and other public documents. 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.

Some readers seem to think the newspaper wants to publish the DOB. That’s not why the newspaper is seeking the information.

The DOB will help identify the person at issue as the newspaper checks other public records.

Keeping open the birth dates in public records isn’t important just for the news media.

Ever go into business with someone? Hire an employee? Concerned about your child’s school bus driver or baby sitter? What about your daughter’s new boyfriend?

Without a DOB, as Dean noted today, it can be impossible to differentiate in public records between two people with the same name.

City Attorney
Kenny Jordan also has cited the Driver’s Privacy Protection Act as a reason for not releasing the date of birth from a personnel file. In an earlier posting, I explained why I don’t believe that federal statute applies.

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

Thursday, August 27, 2009

OKC official cites federal law on drivers’ licenses as reason to block public access to information in city personnel files

Does a federal statute regarding drivers’ licenses block public access to some information in the personnel files of local government employees?

Oklahoma City Attorney Kenny Jordan thinks so – despite the wording of the federal statute and the Oklahoma Open Records Act.

The Oklahoman this week requested the date of birth of Ed Martin, a program director placed on administrative leave as OKC officials investigate potential problems with his program’s management of a federal grant.

Jordan cited a state Open Records Act exemption for “personal information within driver records” as one reason for not releasing the information. He noted that Martin’s date of birth is on his driver’s license, the newspaper reported.

But if Jordan’s reasoning were correct, then the public would not be entitled to know the names of any city employees because their names are also on their drivers’ licenses.

The Open Records Act specifically exempts “personal information within driver records as defined by the Driver’s Privacy Protection Act.” (OKLA STAT. tit. 51, § 24A.5(1)(c))

The Driver’s Privacy Protection Act specifically prohibits under most circumstances the release of “certain personal information from State motor vehicle records.” (18 U.S.C. § 2721)

“[A] State department of motor vehicles, and any officer, employee, or contractor, thereof, shall not knowingly disclose or otherwise make available to any person or entity personal information about any individual obtained by the department in connection with a motor vehicle record,” the statute states. (id. at § 2721(a))

It defines a motor vehicle record as “any record that pertains to a motor vehicle operator's permit, motor vehicle title, motor vehicle registration, or identification card issued by a department of motor vehicles.” (id. at § 2725(1))

The federal statute doesn’t explicitly list date of birth among the personal information on a driver’s license that should not be disclosed.

"'Personal information' means information that identifies an individual, including an individual's photograph, social security number, driver identification number, name, address (but not the 5-digit zip code), telephone number, and medical or disability information.” (id. at § 2725(3))

But even if it did, here are two reasons why the statute doesn’t block access to information in city personnel files:

1. The City of Oklahoma City and the Oklahoma Department of Public Safety, the state agency that issues drivers licenses, are NOT the same entity.

2. City government personnel files and state-issued drivers licenses are NOT the same document.

When officials cite ridiculously inapplicable laws as was done here, they not only frustrate the public’s right to know but also hurt their own credibility. Why resort to such a tactic unless no legitimate statutory exemption exists.

In coming days, the FOI Oklahoma Blog will examine Jordan’s other stated reason for non-disclosure and also the city’s explanation for not revealing the name of another employee placed on administrative leave during the same investigation.

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

Tuesday, August 25, 2009

Broken Arrow school board votes to release detailed billing records from law firm

Taxpayers will get a better idea of what a Tulsa law firm did to earn more than $200,000 from the Broken Arrow Public Schools in one year.

The school system's board of education voted 5-0 Monday night to release all detailed billing records that establish the nature and amount of charges incurred by the school district for legal services provided by the Tulsa firm Rosenstein, Fist & Ringold.

The board also will release the district’s engagement letter with the Tulsa law firm Crowe & Dunlevy and detailed billing records submitted to the district by the firm.

School board members had hired Crowe & Dunlevy in June to advise them whether to release the billing records from Rosenstein, Fist & Ringold.

The records are expected to be made public this week, says Chris Tharp. He had been seeking the billing
records submitted by Rosenstein, Fist & Ringold since September.

"Only took a year, but I got it. Or will get it in the mail later this week," Tharp told the FOI Oklahoma Blog on Tuesday.

The school district spent about $8,500 on legal fees in fiscal year 2007-08, says Tharp, whose children attend Broken Arrow Public Schools.

That amount increased to more than $200,000 in the 2008-09, he says.

and the citizens group Broken Arrow Parents for Truth want the information to determine if the school board “is spending taxpayers’ money wisely, and not to the detriment of the overall purpose for BAPS – education.”

School district officials would tell him how much the law firm had been paid but wouldn't provide the detailed billing records for the services provided. One school board member said she didn't think the public was "entitled
to know exactly what we spend our legal bills on.”

“I mean, I’m elected to represent the public. This is not a democracy. This is a republic. That means that I am elected and you guys trust me to make decisions and because you all don’t have the time to go into and research everything. That’s what I’m elected to do, to research and study all this stuff,” said Maryanne Flippo, who didn’t seek re-election to the school board this past spring.

Doug Mann of Rosenstein, Fist & Ringold contended that attorney-client privilege shielded the information from public view.

Tharp hired an attorney, who in June requested documents demonstrating what legal services Rosenstein, Fist & Ringold has provided for the district since being hired on Aug. 6, 2008.

In response, the school board hired
Crowe & Dunlevy for advice on releasing the records.

Tharp added
to his request the district’s engagement letter with Crowe & Dunlevy and the detailed billing records it submits to the district.

In a June letter to the school district, Tharp's attorney,
Marvin Laws of Hayes Magrini & Gatewood in Oklahoma City, referred to the Oklahoma Open Records Act's preamble:

“As the Oklahoma Constitution recognizes and guarantees, all political power is inherent in the people. Thus, 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.” (OKLA. STAT. tit. 51, § 24A.2)

The purpose of the Oklahoma Open Records Act is “to ensure and facilitate the public’s right of access to and review of government records so they may efficiently and intelligently exercise their inherent political power.”

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

Thursday, August 20, 2009

Boards administering grants funded by tax dollars are subject to state’s FOI laws

Any board administering a grant funded by tax dollars must abide by Oklahoma’s Open Records and Open Meeting laws, public officials were reminded this week.

Assistant Attorney General Gay Tudor also reiterated that cell phone texting and e-mail correspondence would violate the Open Meeting Act if public business were discussed, The Claremore Daily Progress reported.

Tudor also noted such correspondence would be open to public inspection under the Open Records Act, the newspaper said.

In a written opinion this past May, Attorney General Drew Edmondson said records of government business belong to the public even if they are created, received or stored on an official’s private smart phone or laptop.

“To conclude otherwise would allow public officials and employees to circumvent the open records laws simply by using privately owned personal electronic communication devices to conduct public business,” the opinion (09-12) said.

At an open government workshop in Claremore on Tuesday, Edmondson and Tudor answered questions regarding the state’s Open Records and Open Meeting laws. About 75 people, including county and municipal officials and representatives from public boards, attended the seminar, the newspaper reported.

Tudor warned officials not to abuse statutory exemptions allowing for closed-door executive sessions. ““It’s very important for the public to know they can trust you,” she said.

The next seminar will be Aug. 31 in Tecumseh. The workshops, sponsored by FOI Oklahoma Inc. and the Oklahoma Press Association, are free and open to the public.

The written opinion in May warned public officials and employees not to alter or destroy public records on their private communication devices unless allowed to do under the state Records Management Act.

“E-mails, text messages and other electronic communications made or received in connection with the transaction of public business, the expenditure of public funds or the administration of public property are subject to the Oklahoma Open Records Act, [its exemptions] and the Records Management Act regardless of whether they are created, received, transmitted or maintained by government officials on publicly or privately owned equipment and communications devices,” the opinion concluded.

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

Saturday, August 15, 2009

More candidates sign Open Government Pledge

Seven more candidates for Tulsa municipal offices or the House District 55 seat have signed FOI Oklahoma's Open Government Pledge.

In signing the pledge, candidates “endorse the purpose of Oklahoma’s Open Meeting and Open Records laws to ensure and facilitate the public’s understanding of governmental processes and problems.”

They also “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.”

Among the most recent signers are mayoral candidates Robert Gwin, David Lee O'Connor and Paul Tay. Other Tulsa signers are City Council candidates G.T. Bynum, District 9; James S. Mautino, District 6; and Roscoe Turner, District 3.

Jeff Ledford, a candidate for Oklahoma House District 55, also returned a signed pledge.

A complete list of signers and the pledge are available at the FOI Oklahoma Web site.

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

Thursday, August 13, 2009

FOI OK asks candidates for Tulsa muni offices and House Dist. 55 to sign Open Government Pledge

Candidates for Tulsa municipal offices and for the House District 55 seat in western Oklahoma have been asked to sign a pledge to uphold the letter and spirit of the state’s Open Meeting and Open Records laws.

Forty-two candidates for statewide, local or legislative offices have signed the Open Government Pledge since FOI Oklahoma Inc. began distributing it in 2008.

The most recent are Tulsa City Auditor Phil Wood, who is seeking re-election, and Rocky Frisco, a candidate for Tulsa City Council District 4.

In signing the pledge, candidates “endorse the purpose of Oklahoma’s Open Meeting and Open Records laws to ensure and facilitate the public’s understanding of governmental processes and problems.” They also “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.”

Candidates for local offices pledge 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.” Candidates for state legislative seats also promise to “support legislation to strengthen the letter and the spirit of Oklahoma’s Open Meeting and Open Records laws.”

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

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.

But the pledge is just one step in making open government a priority in this state. Voters and the news media must make it a campaign issue. If we think it’s important, those seeking public office will, too.

Find out what candidates have done to support government transparency. Point out if incumbents have undermined our right to know. If candidates haven’t signed the pledge, ask why.

What if candidates don’t live up to these promises once elected?

Then we show them the door at the next election and elect people with the integrity to conduct our government in the open. Ultimately, it’s up to us – the voters – to hold our elected officials accountable.

In Tulsa, 43 candidates are vying for municipal offices. The primary is Sept. 8. The general election is Nov. 10. More information on the candidates can be found at The Tulsa World.

A special election is being held for House District 55, which covers Washita County and parts of Caddo, Canadian and Kiowa counties. Four candidates are seeking to replace a Democrat who accepted a federal agriculture post. The primary is Sept. 8, followed by the general election on Oct. 13.

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

Friday, August 7, 2009

Reminder to public officials: Willful violation does not require showing intent, but rather showing the official knew or should have known the law

Public officials were reminded Thursday that proving a willful violation of the state's Open Meeting and Open Records laws requires showing only that the official knew or should have known the law, not that the official intended to violate the law.

Assistant Attorney General Gay Tudor also reminded a packed meeting room in Muskogee that it is illegal for a quorum of a public body to meet via e-mail to discuss or decide public business, The Muskogee Phoenix reported.

Attorney General Drew Edmondson warned the audience that grand juries tend to look more harshly on open government violations than do district attorneys, the newspaper said.

In the audience for the seminar on the state's FOI laws were officials of nonprofit agencies receiving grants from the City of Muskogee Foundation because they are required to comply with the Open Meeting and Records laws, the newspaper reported.

The next seminar will be Tuesday in Woodward. The workshops are free and open to the public.

Criminal violations of the state's open government laws can result in up to one year in jail and/or up to a $500 fine.

The state Supreme Court in 1984 said proving that a violation was willful "does not require a showing of bad faith, malice, or wantonness, but rather, encompasses conscious, purposeful violations of the law or blatant or deliberate disregard of the law by those who know, or should know the requirements of the [Open Meeting] Act."
(Rogers v. Excise Bd. of Greer County, 1984 OK 95, ¶ 14, 701 P.2d 754, 761)

The court was relying upon a 1981 Oklahoma Court of Civil Appeals ruling.

The lower appellate court had said if willful were to be narrowly interpreted to include only violations "done in bad faith, maliciously, obstinately, with a premeditated evil design and intent to do wrong, then the public would be left helpless to enforce the Act most of the time and public bodies could go merrily along, in good faith, ignoring the Act.”
(Matter of Order Declaring Annexation, 1981 OK CIV APP 57, ¶ 26, 637 P.2d 1270)

As of Nov. 1, 2007, newly appointed city officials must undergo training that includes the state's FOI laws. Legislators had placed the requirement upon newly elected municipal officials the previous year. Under state law, these officials lose their jobs if they fail to take the training in roughly their first year in office.

(“Each person elected for the first time to a position of a municipality on or after January 1, 2005, or appointed for the first time on or after July 1, 2006, shall be required within one year after taking the oath of office to attend an institute for municipal officials.” (OKLA. STAT. tit. 11, § 8-114(A))

“The curriculum for the Institute shall include, but not be limited to: municipal budget requirements, the Oklahoma Open Meeting Act, the Oklahoma Open Records Act, ethics, procedures for conducting meetings, conflict of interest, and purchasing procedures.” (OKLA. STAT. tit. 11, § 8-114(C)))

Oklahomans should expect all their public officials to know their particular obligations under the state's Open Meeting and Records laws.

And the public shouldn't have to take the grand jury approach to enforcing our FOI laws. We should expect that our elected district attorneys consider violations to be serious breaches of the public trust and that they act accordingly by prosecuting.

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

Wednesday, August 5, 2009

DHS employee tells TV station she deleted e-mails related to investigation of sexual harassment claims at state ME's Office

A DHS employee hired to investigate sexual harassment claims at the Oklahoma Medical Examiner's Office might have violated state law by deleting e-mails from her state account, Fox 25 in Oklahoma City reported Tuesday.

The television station said the e-mails might show that the employee illegally shared her investigatory files with lawmakers.

The employee told Fox 25 that she had deleted the e-mails before the station requested them.

By deleting the e-mails, the station noted, the employee might have violated state law regarding the retention of records by state agencies.

Oklahoma's Records Management Act prohibits state officials from deciding on their own to mutilate, destroy, transfer, remove, alter, or otherwise damage or dispose of records they create or receive in the course of their public duties. (OKLA. STAT. tit. 67,
§ 209)

"No state record shall be destroyed or otherwise disposed of unless it is determined by the Archives and Records Commission that the record has no further administrative, legal, fiscal, research or historical value," the statute states. (OKLA. STAT. tit. 67,
§ 210)

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

Tuesday, August 4, 2009

Edmond city attorney refuses to release records/dash-cam video regarding complaints of excessive force by police

Edmond won't release records and dash-cam video related to three complaints of excessive force by its police officers, The Edmond Sun reported Tuesday.

In response to a public records request by the newspaper, the city provided documents already available to the public: Two lawsuits filed in federal court and a tort claim filed by a third person.

City Attorney Steve Murdock refused to release records related to three other complaints/claims of excessive force by Edmond police. Murdock told the newspaper the records are part of the city attorney's litigation file and may be kept secret by the Oklahoma Open Records Act.

Murdock said the dash-cam video also is part of the city attorney's litigation file and could not be released without permission of all the parties involved.

He also refused to release city jail video of an incident involving an officer. Murdock said that video is part of a protective order issued in one of the federal lawsuits filed against the city and could not be released with the judge's permission.

The Open Records Act says a city attorney's office "may keep its litigation files and investigatory reports confidential." (OKLA. STAT. tit. 51, § 24A.12)

The Oklahoma Press Association's executive vice president noted that the city is not required to keep the records secret.

The statute does not say the city attorney "shall" keep the records confidential, said Thomas, a former president of FOI Oklahoma and a member of its board of directors.

Thomas also challenged Murdock's assertion that the city needed someone's permission before releasing public records, including the dash-cam video.

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

Sunday, August 2, 2009

OSBI investigating complaint that Norman City Council violated Open Meeting Act

The Oklahoma State Bureau of Investigation is looking into a Norman city councilman's complaint that the Council violated the Open Meeting Act during an executive session on June 9, The Norman Transcript reported Saturday.

Councilman Tom Kovach had contacted FOI Oklahoma on June 18 about the meeting. He believes that the council's discussion about financing the Rock Creek Road overpass at Interstate 35 violated the law because the agenda item for the executive session listed only the acquisition of right-of-way for the construction.

Kovach noted that financing a construction project is not one of the nine topics permitted for executive sessions under the Open Meeting Act.

However, the purchase or appraisal of real property is a permitted topic. The meeting is “limited to members of the public body, the attorney for the public body, and the immediate staff of the public body. No landowner, real estate salesperson, broker, developer, or any other person who may profit directly or indirectly by a proposed transaction concerning real property which is under consideration may be present or participate in the executive session." (OKLA. STAT. tit. 25, § 307(D))

Councilman Doug Cubberley recused himself and left the room during the discussion of the acquistion. But when the discussion moved to paying for the project, Kovach said, Cubberley was brought back into the room "since the financing was a separate issue."

According to The Norman Transcript, Cubberley said he left the executive session because if the Council decided to condemn a certain property, the owner might hire Cubberley's law partner as legal representative. Cubberley said the city's legal staff said he did not need to recuse himself but that he felt uncomfortable staying for the discussion.

He returned to discuss options for purchasing rights of way.

The financing is part of a controversial Tax Increment Financing District.

At the Council's June 23 meeting, Kovach complained publicly that the Council had violated the Open Meeting Act during its executive session on June 9.

City Attorney Jeff Bryant does not believe the Council violated the law.

In a memo obtained by The Norman Transcript, Bryant told the Council, "The question here is whether the description of the business and purpose of the session (to discuss the acquisition of real property associated with the Rock Creek Road Overpass) was sufficient to include discussion of which property would be acquired, the mechanism by which it was proposed to be acquired (purchase) and how the property would be acquired, i.e. funding source."

He said he believes the council complied "with the spirit and intent of the Oklahoma Open Meeting Act," saying the the agenda "contained sufficient information to inform the public that an executive session would be proposed, identified the business and purpose of the session and stated the statute provision that authorized the executive session."

An FOI Oklahoma Blog posting in response to Kovach explained that subsequent public discussion and action would not excuse a violation of the Open Meeting Act.

In the memo, Bryant also addressed whether the law was violated by Councilman-elect Alan Atkins' presence during the executive session.

Bryant said no violation occurred because Atkins, who had not been sworn in, was present as an elected official, not as a private citizen, and did not stand to profit from the property acquisition.

An OSBI official told The Transcript that the investigation is in the "initial stages." The investigation was requested by Cleveland County District Attorney Greg Mashburn, the official said.

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