Tulsa Public Schools refuses to release records related to inappropriate touching of elementary students by assistant principal

Tulsa Public Schools on Thursday refused requests by the Tulsa World and at least one television station for all e-mails, memos and other records about possible inappropriate touching of students by a Skelly Elementary School assistant principal, the newspaper reported.

Tulsa police are investigating the allegations against the administrator.

Tulsa Public Schools officials, responding to the newspaper's records request, said in a press release:

Tulsa Public Schools is aware of a police investigation involving a TPS employee at Skelly Elementary School. District administrators and other staff have been fully cooperative with Tulsa police in that ongoing investigation. TPS will continue to cooperate in the investigation as required and allowed by law. …

At this point, because there are ongoing criminal and employment investigations involving confidential information with regard to a student and an employee, Tulsa Public Schools will not release any documents, e-mails or correspondence as to this matter as those items are privileged and protected by law. No further comment will be made by the district at this time with regard to this matter.

The newspaper noted that under the state Open Records Act, any records that "would otherwise be available for public inspection and copying, shall not be denied because a public body or public official is using or has taken possession of such records for investigatory purposes or has placed the records in a litigation or investigation file." (OKLA. STAT. tit. 51, § 24A.20)

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

Pottawatomie and Canadian counties' fees for digital copies of assessments databases violate Open Records Act

Chalk up two more victories for a California businessman in his legal battle with Oklahoma's county assessors over the price for electronic copies of their real property assessments.

In the past month, judges have told Pottawatomie and Canadian counties' assessors that they could charge Roger W. Hurlbert no more than $50 for the electronic databases.

Since 2008, five judges have declared the fees charged by the respective assessors violated the Oklahoma Open Records Act because the charges were “not limited to recovering only the reasonable, direct costs of record copying and record search.”

Hurlbert, an FOI Oklahoma Inc. member, does business as Sage Information Services in California. Hurlbert is represented by Douglas A. Wilson, a board member of FOI Oklahoma Inc.

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))

The most recent rulings in Hurlbert's favor came on March 24 in Pottawatomie County (C-2009-01783) and on April 6 in Canadian County (CV-2009-300).

Hurlbert also has won in Muskogee, Osage and Wagoner counties. A case in Grady County is pending.

In all five victories, the judges have said Hurlbert is entitled to his reasonable attorney fees and costs.

For more background on the lawsuits and the relevant law, read these postings.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

Lamons amendment would undo Terrill 'compromise' on birth date bill, subject Legislature to Open Records Act

A bill to close public access to the birth dates of government workers would become a bill requiring the state Legislature to follow the Open Records Act, under an amendment filed Wednesday morning by Rep. Lucky Lamons.

The Tulsa Democrat's amendment to SB 1753 might keep the DOB bill from coming to a vote of the full House because representatives likely don't want to decide if they should be subject to the records statute, said Mark Thomas of the Oklahoma Press Association.

Thomas warned though that Rep. Randy Terrill and the Oklahoma Public Employees Association might try to close access to the personnel information by inserting their language into another bill.

Late Monday, Terrill filed a "compromise" amendment that would end public access to the birth dates found in the personnel files of government employees. (Read blog posting on Terrill's amendment.)

House members were expected to vote either today or Thursday on that amendment.

But Lamons filed an amendment that would strip Terrill's proposed language and instead require legislators to abide by the state Open Records Act.

Lamons is one of 12 House members who signed FOI Oklahoma's Open Government Pledge.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

House could vote today on Terrill 'compromise' ending public access to government employees' birth dates

Rep. Randy Terrill's "compromise" would end public access to the birth dates of government employees and "be the end of the presumption that records are open unless closed," the Oklahoma Press Association executive vice president warns.

"We need to ratchet up the calls (to state legislators) or this terrible process – even though limited to DOB now – will creep into the open records act," says Mark Thomas. "They will be open if you can prove to the government you need them bad enough."

Terrill's floor amendment, filed late Monday, to SB 1753 could be voted on by the full House today or Thursday.

Paul Monies of The Oklahoman says the new language "makes a bad bill worse and turns the whole Oklahoma Open Records Act on its head."

Thomas is calling on state newspapers and open government advocates to tell House members to vote against the amended bill.

Thomas explains the procedure created by Terrill's amendment:

1. You will have to submit the employee’s DOB – obtained from another source – and the public body will only verify the accuracy of what you have submitted. You won’t actually get the DOB as a record – this law still closes all public employee DOB’s.


2. You must give a public body a written request for a record.


3. Your written request must ask about a specific person – not more than one person per request.


4. Your written request must provide a REASON why you want the public record.


5. The public body will only respond if the person you are asking about works there on the day of the request – not if they worked there in the past.


6. The public body will have a “reasonable period of time” to review your request.


7. The public body will tell you if they have the record or if they don’t have it – but not provide the DOB to you. The public body will just give you a written confirmation that what you submitted to them is correct.


8. But before the public body replies to you, they must notify the employee of your request within a “reasonable period of time.” The public body must tell the employee WHO is asking for the record, and WHY you say you want it.
   

(The amendment's language is at the end of this blog.)

"They will say it is 'only for DOB' but you know it will spread to other records requests when this gets in the Open Records Act," Thomas says. "You know how terrible this process will be – but DOES YOUR LEGISLATOR KNOW how devastating this will be on requests for records?"

Monies says on his Data Watch Blog the bill would "grant public employees greater privacy protections than registered voters, licensed drivers and people who buy prescription drugs in Oklahoma."

Twelve members of the House signed FOI Oklahoma's Open Government Pledge while campaigning.

They promised voters that if elected, they would "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."

Most of those signers seemed to have forgotten that promise this legislative session. It's time for them to remember it.

The state representatives who signed the pledge:

• Dank, David, R-Oklahoma City
• Collins, Wallace, D-Norman
• Lamons, Lucky, D-Tulsa
• McDaniel, Jeannie, D-Tulsa
• McDaniel, Randy, R-Edmond
• Murphey, Jason W., R-Guthrie
• Nations, Bill, D-Norman
• Russ, Todd, R-Cordell
• Sanders, Mike, R-Kingfisher
• Scott, Seneca, D-Tulsa
• Watson, Weldon, , R-Tulsa,
• Wright, Harold, R-Weatherford
  

Here is the relevant portion of Terrill's amendment:

SECTION 1. NEW LAW A new section of law to be codified in the Oklahoma Statutes as Section 24A.7-1 of Title 51, unless there is created a duplication in numbering, reads as follows:

A. No public body shall release to any person or entity the exact date of birth for any employee of the public body.

B. For purposes of the Oklahoma Open Records Act, an employee’s date of birth shall not be subject to disclosure by the public body except for the procedures prescribed by this section for responding to requests to confirm or deny a date of birth with respect to a person identified in a request for verification.

C. A person or entity may request a verification from a public body that a birth date for a specifically identified person whom the requestor reasonably believes to be employed by the public body as of the date of the request is the same as the birth date for such employee as reflected by the employment records of the public body.

D. The requestor shall submit a written request for verification of date of birth to the public body which request shall contain:

1. The complete name of the person whom the requestor reasonably believes to be an employee of the public body as reflected in the information or document relied upon by the person or entity making the verification request;

2. The particularized and specific reason that the requestor is asking for verification of the employee date of birth for each employee included in a verification request; and

3. Any other identifying information related to the information or document in the possession of the requestor that would allow the public body to determine whether or not the person identified in the request is an employee of the public body.

E. For purposes of verification requests submitted by any person or entity and for purposes of responses to such requests by a public body, a person’s status as an employee shall be determined as of the date that the verification request is submitted to the public body.

F. The public body shall have a reasonable period of time from the receipt of a verification request within which to review the request and any document or other information identified in the request to ascertain whether the person named in the verification request is an employee of the public body.

G. If the public body determines that the person identified in the verification request is or may be an employee of the public body, the public body shall respond in writing to the person or entity making the verification request that the date of birth of the employee is the same as the date of birth provided by the requestor with respect to the person identified in the verification request.

H. If the public body determines that the person identified in the verification request is not an employee of the public body, the public body shall respond in writing to the person or entity making the verification request that the date of birth provided by the requestor with respect to the person identified in the verification request does not match the date of birth of any employee of the public body.

I. Within a reasonable period of time after a public body receives a verification request pursuant to this section and prior to the date as of which the public body provides a written response confirming a birth date of one or more of its employees, the public body shall provide written notice to any employee whose date of birth has been the subject of a verification request by a requesting entity of the identity of the requesting entity and the reason provided by the requesting entity for the verification request.

J. Prior to making the written verification to a requesting entity with respect to an employee date of birth, the public body shall notify any employee whose date of birth will be confirmed to a requesting entity that the public body will be providing a confirmation of the date of birth to a requesting entity.

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

Autopsy reports used to reveal incompetency, corruption, but Oklahoma legislators want to stop public access to such records

(See also, Legislator withdraws bill restricting access to autopsy records)

A bill limiting what the public may know from autopsy files involving homicides and cases in which the manner of death is either pending or unknown was unanimously approved by state senators on Thursday.

But the press and public have used autopsy reports elsewhere to uncover incompetency and corruption by police, medical examiners and coroners.

For example:

• The FBI recently began investigating three post-Katrina police shootings in New Orleans because of a series published by ProPublica and others. Two experts said an autopsy report raised questions about one of the fatal shootings and its circumstances. One of the experts called the New Orleans coroner’s forensic work in the case “incomplete at best.”

• In Florida, an associate state medical examiner was found to have falsified several autopsy reports. His license to perform autopsies in Missouri had been revoked earlier because he fabricated autopsy reports there.

• In Tennessee, the state medical examiner was stripped of his job and later his medical license after two investigations concluded he had botched autopsies and lied on some autopsy reports. In one case, for example, he concluded a man died of multiple stab wounds but another forensic pathologist later said the wounds were "cuts from a glass table that the deceased fell on when he died.” In another, he determined a death was caused by sudden-infant death syndrome but a review of the autopsy found the child died of acute cocaine intoxication.

• In Texas, a former medical examiner was convicted of falsifying autopsies in three counties.

In Oklahoma, HB 3155 is headed to a conference committee, so Senate and House leaders can work out details.

Sponsored by Rep. Leslie Osborn, R-Tuttle, the bill passed the House last month by a vote of 86-7. Voting "yes" were 10 House members who had signed FOI Oklahoma Inc.'s Open Government Pledge. More on that later.

The legislation would close access to "information contained in an autopsy report providing the 'manner of death' as homicide, unknown or pending until discoverable under law."

For those autopsy reports, the Office of Chief Medical Examiner would be required to tell the public the "autopsy number, case number, laboratory analysis number, manner of death, full name, age, date of birth, race, sex, and home address of decedent, name and title of the individual notifying the Office of the Chief Medical Examiner, date and time of such notification, including the city, county, type of premises, and the date and time of viewing, and the date report was filed."

HB 3155 closes the information to family members, closes the reports indefinitely, and doesn't address cases in which the person died in the custody of police, notes Mark Thomas of the Oklahoma Press Association.

OSBI requested the bill, reportedly because "telling details were released in two high-profile cases last year." The public is left with the impression that releasing those details has prevented OSBI from solving those murders.

The Oklahoman called the bill "an overreaction." But for most of our state legislators, that impression seems sufficient reason to stop access to government records long available to the public.

No thought seems to have been given to whether the public has a legitimate need to know the details of autopsy reports involving homicides or when the manner of death is unknown.

"When you close records, it allows corruption to creep into the system of identifying who died and how," said Thomas. "It is so important that this has to be carefully scrutinized, whether law enforcement likes it or not."

State Rep. Lucky Lamons, a former Tulsa police officer, agrees that the autopsy records should remain open, especially considering the problems plaguing the state Medical Examiner's Office.

Lamons has pointed out that Tulsa police still solved homicides even though it never asked the medical examiner to withhold information

When the measure passed the House, Lamons, a Democrat, was the only legislator who lived up to his pledge to support open government.

Representatives who had signed the pledge but voted to close the records were:

• Dank, David, R-Oklahoma City
• Collins, Wallace, D-Norman
• McDaniel, Jeannie, D-Tulsa
• McDaniel, Randy, R-Edmond
• Murphey, Jason W., R-Guthrie
• Russ, Todd, R-Cordell
• Sanders, Mike, R-Kingfisher
• Scott, Seneca, D-Tulsa
• Watson, Weldon, , R-Tulsa,
• Wright, Harold, R-Weatherford
  

By signing the pledge, these House members had 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.”

Even though Senate President Pro Tempore Glenn Coffee, R-Oklahoma City, voted for the bill, he has said he does not support making information on the reports completely confidential.

"I think we need to be very cautious in going down that road,” Coffee said. "There may be some issues about when things are released and being able to build a case. But a blanket confidentiality is probably overshooting the issue.”

It sure would.

To read coverage of the autopsy bill:

• Senate OKs bill to keep autopsy information confidential, by Barbara Hoberock, Tulsa World, 4.16.10.

• Oklahoma lawmakers eye autopsy proposal, by Julie Bisbee, The Oklahoman, 4.16.10.

• Bill would keep autopsies secret, by Amanda Guerra, KOCO, 4.16.10.

• Whittling away: Autopsy records bill should be shelved, editorial, The Oklahoman, 3.31.10.

• House passes autopsy-closure bill, by Barbara Hoberock & Nicole Marshall, Tulsa World, 3.10.10.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

A third Democratic candidate for House District 44 signs Open Government Pledge

Norman City Coucilman Tom Kovach has pledged to support open government legislation if elected to the state House District 44 seat.

Kovach is the third Democratic candidate for House District 44 to sign FOI Oklahoma Inc.'s Open Government Pledge.

The seat is being vacated by Democrat Bill Nations, who is term-limited. Nations signed the pledge in 2008.

Kovach had also signed the pledge earlier this year when he ran unopposed for re-election to his council position.

As a House candidate, Kovach specifically promised to "support legislation to strengthen the letter and the spirit of Oklahoma's Open Meeting and Open Records laws."

He also pledged "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."

The pledge also has been signed by Kovach's announced Democratic opponents: Emily Virgin, an OU first-year law student, and Isaiah McCaslin, a public policy junior at the University of Oklahoma.

The filing period is in June.

Freedom of Information Oklahoma Inc. invites other legislative candidates and those running for statewide and municipal offices to sign the pledge.

Instructions and a list of signers for the 2010 elections can be found on FOI Oklahoma’s Web site.

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.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

OU refuses to release cell phone records; Open Records Act doesn't allow officials to hide public records by placing them in investigatory file

The University of Oklahoma is refusing to release the cell phone records of an assistant basketball coach who resigned this week, The Oklahoman reported today.

OU officials claim the records are part of "confidential litigation files and investigatory reports," the newspaper reported.

But under the state Open Records Act, any records that "would otherwise be available for public inspection and copying, shall not be denied because a public body or public official is using or has taken possession of such records for investigatory purposes or has placed the records in a litigation or investigation file." (OKLA. STAT. tit. 51, § 24A.20)

The fact that officials may keep the cell phone records confidential in an investigatory file "does not extend to other files in which the document is kept." (1999 OK AG 58) (See also 1990 OK 60)

The Oklahoman noted that TMZ.com reported last month that a former Merrill Lynch financial adviser wired $3,000 into an account held by an OU basketball player and his mother last August.

The newspaper said it's not clear whether the investigation shielding the cell phone records is related to OU’s investigation into the relationship between the former financial adviser and the player.

The newspaper requested correspondence between OU's athletic department and the NCAA regarding the former financial adviser. But university officials denied the request, saying the correspondence is part of "confidential litigation files and investigatory reports."

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

Rep. Watson lives up to open government pledge by voting against bill exempting birth dates of public employees

Rep. Weldon Watson, R-Tulsa, was one of two House committee members to stand up for the public's right and need to know on Thursday.

Watson was joined by Rep. Jeffrey Hickman, R-Docoma, in voting against Senate Bill 1753, which would cut off public access to government employees' birth dates in personnel files.

Hickman pointed out that there is no documented case of anyone being harmed by the birth dates being accessible under the Open Records Act and that public employees are paid by taxpayers, The Oklahoman reported.

The bill passed the House Appropriations and Budget Committee by a 12-2 vote.

However, Rep. Randy Terrill, House author of the bill and a member of the committee, again said he plans to insert compromise language into the legislation, The Oklahoman reported.

What that compromise could be was not explained.

In March, Terrill said the bill won't be in its current form when it comes up for a vote by the full House. A date for that vote hasn't been set.

Last month, Terrill, a Republican from Moore, told The Oklahoman he wants to come up with a process that outlines how and under what circumstances birth dates of public workers should be released. He said he wants the process to protect workers’ privacy while maintaining the public’s right to know about who is working for their government.

That doesn't sound any more promising for the public's right to know than the current process of balancing the public interest in disclosure and determining whether disclosure would constitute an "unwarranted invasion" of each employee's privacy.

Besides Terrill, also voting for the bill on Thursday were:

• John Auffet, D-Stilwell
• John Carey, D-Durant
• Lee Denney, R-Cushing
• Dale DeWitt, R-Braman
• Joe Dorman, D-Rush Springs
• Larry Glenn, D-Miami
• Chuck Hoskin, D-Vinita
• Guy Liebmann, R-Oklahoma City
• Scott Martin, R-Norman
• Ken Miller, R-Edmond
• Danny Morgan, D-Prague

Watson is one of 12 House members who signed FOI Oklahoma Inc.'s Open Government Pledge while campaigning for office since 2008.

By signing the pledge, the House members 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.”

The other pledge signers in the House are:

• Dank, David, R-Oklahoma City
• Collins, Wallace, D-Norman
• Lamons, Lucky, D-Tulsa
• McDaniel, Jeannie, D-Tulsa
• McDaniel, Randy, R-Edmond
• Murphey, Jason W., R-Guthrie
• Nations, Bill, D-Norman
• Russ, Todd, R-Cordell
• Sanders, Mike, R-Kingfisher
• Scott, Seneca, D-Tulsa
• Wright, Harold, R-Weatherford

We hope they will follow Watson's example of living up to the pledge if SB 1753 comes before the full House for a vote.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

Judge grants OPEA temporary restraining order, allows FOI OK, The Oklahoman, others to join in court battle over state workers' birth dates

Oklahoma County Judge Bryan Dixon this morning granted a temporary restraining order stopping the release of state workers' birth dates to The Oklahoman.

The judge also allowed The Oklahoman to intervene as a defendant and FOI Oklahoma, Tulsa World, KWTV, KOTV, the Oklahoma Press Association and the Reporters Committee for Freedom of the Press to file briefs in support of the public's right to the information.

Dixon also granted requests by the Oklahoma State Troopers Association and the Oklahoma Department of Public Safety to join with the Oklahoma Public Employees Association in seeking the order against the state Office of Personnel Management.

(CJ-2010-2623, Oklahoma Public Employees Association v. Oklahoma Office of Personnel Management)

The Oklahoman is expected to file an answer and a request for a summary judgment next week.

Coverage of hearing: Release of Oklahoma public employee birth dates temporarily halted by judge, By John Estus, The Oklahoman, 4.9.10.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

State makes millions by selling personal information, but state legislators want DOBs of public employees kept secret

The state of Oklahoma makes tens of millions of dollars selling personal information about its residents, The Oklahoman and Tulsa World reported Sunday.

In a joint investigation, the newspapers reported that for example, the state made at least $65 million in the past five years from the sale of millions of motor vehicle records that include birth dates and other personal information of all state drivers.

The Oklahoman's editor pointed out in strongly worded editorial that while "the state is reaping millions of dollars from the sale of this information," Rep. Randy Terrill and Sen. Debbe Leftwich are pushing to exempt the birth dates of public employees from government personnel files.

Editor Ed Kelley also noted that Terrill used a list of registered voters for his 2004 campaign. Voter registration records include birth dates.

Keeping birth dates secret won't help protect workers' identities or safety because the information already is available elsewhere, the keynote speaker for FOI Oklahoma Inc.'s recent Sunshine Week conference told the newspapers.

"What I would tell them is stop trying to shut the barn door after the horses are gone," said Richard J.H. Varn, chief information officer for the city of San Antonio and executive director of the Coalition for Sensible Public Records Access. "It's a lack of understanding by policy makers to what an effective countermeasure is to identity theft."

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

State troopers ask to join OPEA lawsuit; Judge recuses herself

The Oklahoma Troopers Association wants to join with a state employees association in asking a judge to stop the state government from releasing basic personnel information on state workers.

The Troopers Association today filed a motion to intervene as a plaintiff in the Oklahoma Public Employees Association's request for the injunction.

CJ-2010-2623, Oklahoma Public Employees Association v. Oklahoma Office of Personnel Management

Judge Noma D. Gurich recused herself from the case today. She is married to John E. Miley, deputy general counsel for the Oklahoma Employment Security Commission.

The case has been transferred to Oklahoma County Judge Bryan Dixon.

The hearing has been reset for April 9.

The Oklahoman filed a motion Thursday to intervene as a defendant.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

The Oklahoman seeks to intervene in OPEA lawsuit aimed at stopping state from providing newspaper with information on state employees

The Oklahoman is seeking to intervene in a state employee association's lawsuit to block the state government from providing the newspaper with the birth dates and other basic personnel information on state workers.

The Oklahoma Public Employees Association requested the injunction on Monday.

A hearing is scheduled for Wednesday before Judge Noma D. Gurich. (CJ-2010-2623, Oklahoma Public Employees Association v. Oklahoma Office of Personnel Management)

In February, The Oklahoman requested basic employee information, including dates of birth, payroll records and employee identification numbers, for all state employees.

A number of local government agencies have long provided the birth dates of their employees to media outlets with no reported instances of identity thefts caused by the disclosure. Birth dates are also available in voter registration files and in many other public records.

For more background on the issue: OPEA asks judge to stop state from providing newspaper with information on state employees

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism