Tuesday, March 9, 2010

Tulsa County assessor balks at making written request for recording of public meeting

Tulsa County's assessor says he shouldn't be required to fill out a form to obtain the audio tape of a meeting of a public body to which he belongs, the Tulsa World reported Monday.

Ken Yazel said that as a member of the Tulsa County Budget Board, "I ought to be able to get an audio unless there is something else going on I don't know about.

"In the past, we have gotten things verbally, we've done it with an e-mail, now all of a sudden they've taken it one degree more," he told the
Tulsa World.

The newspaper found that none of the other members of the board, all of whom are elected county officials, have been asked to fill out the county's request form to receive documents from the County Clerk's Office.

Yazel's complaint raises the larger question of whether government agencies in Oklahoma may require such forms to be filled out to request records.

The answer is yes, according to state Attorney General Drew Edmondson.

In 1999, Drew Edmondson noted that the Open Records Act "sets forth no specific provisions on the mechanisms that a public body must use in the implementation of the Act." (1999 OK AG 55, ¶ 12)

Public bodies may establish procedures for access to public records but “such rules must be consistent with the letter and spirit of the Open Records Act,” Edmondson said. (Id. ¶ 25)

“The standard for such rules is that the rules be necessary to ‘protect the integrity and organization of its records’ or ‘to prevent excessive disruption of the essential functions of the agency,’” Edmondson said. (Id. ¶ 13 (quoting OKLA. STAT. tit. 51, § 24A.5(5))

"[A] public body could require a request for access to records to be put into writing. This would help the public body ensure the request is responded to fully and competently," Edmondson said. (Id. ¶18)

But the information the government can require from the requester is limited.

The requester can be asked for enough information to determine if a search fee should be charged because the records request is for a commercial purpose, Edmondson said. (Id.)

The official could request a name and mailing address if the requester asked that the records be delivered via mail. (Id. ¶ 20)

“It may also be reasonable to
request the name and telephone number of a requestor … where it will take … until at least the next day to respond to a request," Edmondson said. "This would allow the public body or official to contact the requestor if a problem developed or, for example, if the requestor had asked for an estimate as to the fee once the public body or official determined such fees.” (Id. ¶ 20 n.3)

His emphasis on “request” indicates that, absent statutory authority to do so, the official may not require the requester to provide a name and telephone number.

Otherwise, he emphasized, “In no event could a public body or public official ever require a requestor to provide the reason for a request for access to records besides that ... concerning the authority of the public body or public official to charge a search fee if the request for records is for a commercial purpose.” (Id. ¶ 19)

Edmondson emphasized that under the Open Records Act, "a search fee cannot be charged when release of public records is in the public interest, such as release to the news media, scholars, authors or taxpayers seeking to determine if government affairs are being properly performed." (Id. ¶ 15, citing OKLA. STAT. tit. 51, § 24A.5(3))

Tulsa County's request form does not indicate that a search fee may not be charged in such instances.

Instead, the form states, "This request is made for
business or personal need. ( Circle one ). I have been advised that a charge for copying public records is authorized by state law."

In a section for "internal use," the form indicates whether a search fee was charged and for how much time.

Perhaps "personal need" is meant to indicate that the requester is seeking the records in the public interest" and is, for example, a taxpayer "seeking to determine whether those entrusted with the affairs of the government are honestly, faithfully, and competently performing their duties as public servants.” (OKLA. STAT. tit. 51, § 24A.5(3))

The public would be better served if "personal" was replaced with "public interest" and the form explained when search fees could be charged.

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

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Differing interpretations of law and policy are welcome. Personal attacks and character assassinations will be rejected.