Terrill sneaks in "dangerous and wrong" language that would hamper public access to autopsy records

Legislators Thursday approved a Senate bill intended to improve the state medical examiner's office but that also would restrict public access to autopsy reports because of last-minute language added by Rep. Randy Terrill, reported The Oklahoman this morning.

A House bill that would have restricted access to portions of homicide autopsy reports was withdrawn last week because of opposition it faced on the House floor.

But legislators approved Senate Bill 738, which says the law shall not be construed to "require copies of incomplete or pending reports or any other documents covered by the work-product doctrine to be furnished.”

Rep. Samson Buck, D-Ardmore, said he was concerned the language restricted the public's right to autopsy reports, the newspaper reported.

Buck also was concerned the 49-page bill was presented the night before the last day of the legislative session with language most members had not previously seen, the newspaper reported.

Rep. Richard Morrissette, D-Oklahoma City, accused Terrill of "sneaking in language” that "is dangerous and wrong,” reported The Oklahoman.

Terrill, the House author of the bill, said the language has nothing to do with the state's Open Records Act.

"This bill simply says that if you have an incomplete or partial file, meaning that you have a pathologist or a medical examiner who has not made a determination as to cause and manner of death that that information is closed,” said the Republican from Moore. "But once there has been a determination as to the cause and manner of death it's open.”

The bill passed the Senate 45 - 0 Thursday and the House 58 - 40 that night. It goes next to Gov. Brad Henry for approval.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

Legislators approve government transparency bills

In the final votes required for both bills, state senators unanimously agreed Tuesday to put online the details of state spending and tax credits while House members approved posting school spending on the Internet.

Both bills go to Gov. Brad Henry for his signature.

HB 3422 requires the Office of State Finance to list each individual state expenditure separately instead of as lump sums.

The database, which must be in place by Jan. 1, will be searchable by the name of the recipient, the entity making the purchase and the date of the expenditure.

The Office of State Finance must also create a searchable online archive for each fiscal year starting with the 2011 tax year.

HB 3422 also requires the Oklahoma Tax Commission to publish online a list of all taxpayers who have claimed any tax credit. The information would be made public on Open Books, the state’s taxpayer transparency Web site.

The searchable, downloadable database would include the identity of all taxpayers or organizations having any part in the chain of custody or claim to the tax credit. The information would be available beginning with the 2011 tax year.

In the House on Tuesday, representatives approved SB 1633, the School District Transparency Act, by a 77-22 vote.

The bill requires the state Department of Education to post on its Web site by Jan. 30 a free, searchable database of school district expenditures of state, federal and local funds.

Not included will be payments of voluntary payroll deductions for employees to receiving parties.

Otherwise, the database must include:

1. The school district
2. The name and principal location of the entity or recipient of the funds, excluding release of information relating to an individual’s place of residence, release of information prohibited by subsection D of Section 24A.7 of Title 51 of the Oklahoma Statutes, or by federal law relating to privacy rights
3. The amount of funds expended
4. The type of transaction
5. A descriptive purpose of the funding action or expenditure.

The department must make the data available online within 120 days of receiving the information from the school district.

The bill requires school districts to provide the information when requested by the state but provides no schedule for such requests or deadline for districts to respond.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

Rep. Randy Terrill tries again to stop public access to government workers' birth dates, employee identification numbers

Rep. Randy Terrill on Tuesday added language preventing public access to government workers' birth dates and employee identification numbers to the conference committee version of the Omnibus Corrections bill.

Under the Moore Republican's revised HB 3379, the state Open Records Act would be amended to include the following provisions:

D. The Department of Corrections shall keep confidential the home address, telephone numbers and, social security numbers, employee identification number and birth date of any person employed or formerly employed by the public body.

E. The provisions of subsection D of this section shall be applicable to all public bodies and to any request made pursuant to the provisions of the Oklahoma Open Records Act prior to the effective date of this act for which a public body has not provided a response as of the effective date of this act.

Media attorney Michael Minnis notes that paragraph E might violate the state Constitution's prohibition on ex post facto laws because it would apply to existing records requests.

The new language also might violate the state Constitution's ban on bills containing multiple subjects, Minnis said.

Terrill also added an emergency clause, meaning that the bill would take effect immediately after being signed by the governor.

However, the emergency clause requires a two-thirds vote of approval by the Legislature.

Last week, Terrill's restrictions on public access to the birth dates and employee identification numbers found in government workers' personnel files were added to a bill originally intended to open access to the dash cam videos of the Oklahoma Highway Patrol.

Approved by the Senate General Conference Committee on Appropriations, HB 3382 was sent to the House for consideration. But the bill has failed to make it to the floor.

The original bill on dates of birth had failed to make it out of the House by a deadline last month after Rep. Lucky Lamons, D-Tulsa, added an amendment requiring the state Legislature to follow the Open Records Act. Fellow lawmakers didn't want to vote on that issue.

If Terrill's latest attempt to circumvent the traditional legislative vetting process succeeds, the public would find it virtually impossible to determine if government employees have committed crimes, evaded paying taxes, filed for bankruptcy or made political contributions. The public also would find it virtually impossible to track workers across government jobs.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

Bill would put state spending, tax credit details online

House members voted Monday to put online the details of state spending and tax credits, The Oklahoman reported today.

HB 3422 would require each individual expenditure be listed separately instead of being lumped together as one purchase, such as office expenses, the newspaper said.

The database would be searchable by the name of the recipient, the entity making the purchase and the date of the expenditure.

The measure also would require the Oklahoma Tax Commission to prepare and maintain a list of all taxpayers who have claimed any tax credit. The information would be made public on Open Books, the state’s taxpayer transparency Web site.

The searchable, downloadable database would include the identity of all taxpayers or organizations having any part in the chain of custody of the tax credit. The information would be available beginning with the 2011 tax year.

HB 3422 goes to the state Senate for a vote.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

Bill would hide birth dates of public employees while state sells same information for everyone else

While HB 3382 would conceal public employees' birth dates in their personnel records, the state Department of Public Safety continues to sell the birth dates for millions of regular Oklahomans from other records, the Tulsa World notes today.

The House vote on HB 3382 was delayed from Friday to Monday.

The bill would also would allow DPS to keep OHP dash cam recordings secret when they are most important and to charge $50 for copies of the recordings and for photographs, the FOI Oklahoma Blog pointed out last week.

The language restricting access to the birth dates of public employees was added to HB 3382 last week in the the Senate General Conference Committee on Appropriations

Rep. Randy Terrill's original bill on dates of birth had died in the House last month after Rep. Lucky Lamons, D-Tulsa, added an amendment requiring the state Legislature to follow the Open Records Act. Representatives didn't want to vote on that issue.

Legislators have long used conference committee reports to make last-minute changes to bills that then can be quickly ushered onto the floor of the House and Senate for a final vote, Sean Murphy of the AP notes in an article published statewide today.

Some lawmakers say it allows for last-minute shenanigans as members or lobbyists bypass the traditional vetting process and sneak controversial proposals into the statutes in the waning days of the legislative session, Murphy wrote.

Sound familiar?

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

Tax credit records should be open

Millions in tax credits have been dished out by the Legislature to stimulate industrial growth and jobs.

But many millions of tax credits were sold for 50 cents on the dollar or less to companies who owed taxes to the state.

Sometimes the seller -- say at Burns Flat or Chickasha, and other places -- took the money they got and skipped out without any job creation.

Tax credits should be not transferable, and all records on them public.

The chambers of commerce and some others say openness will let Texas know what we are doing and go after the business we think we bought . . . only to be swindled out of both the jobs and the tax money that was due to the state of Oklahoma.

How dumb. How stupid. The rewards of secrecy cost more than the current revenue shortfall.

Ben Blackstock

Treasurer

FOI Oklahoma Inc.

OU discloses cell phone records, text messages of former assistant basketball coach

The University of Oklahoma this week released the cell phone records of a former assistant basketball coach whose contact with a financial adviser is being investigated by OU and the NCAA.

The Oklahoman and Tulsa World said the coach had exchanged at least 41 phone calls and 25 text messages during a 10-month period with a financial adviser accused of wiring $3,000 into the bank account of a then-OU basketball player.

In April, OU officials had refused to release the cell phone records, claiming the documents were part of "confidential litigation files and investigatory reports."

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 newspapers said OU officials released the records this week.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

Senate revives bill closing public access to gov't workers' DOBs, employee ID. numbers; Sets $50 fee for copies of DPS recordings, photos

Legislative slight of hand has resurrected an attempt to restrict access to the birth dates of Oklahoma's government employees and to their employee identification numbers.

The language was added to a bill originally intended to open access to the dash cam videos of the Oklahoma Highway Patrol.

The original bill on dates of birth had failed to make it out of the House by a deadline last month after Rep. Lucky Lamons, D-Tulsa, added an amendment requiring the state Legislature to follow the Open Records Act. Fellow lawmakers didn't want to vote on that issue.

But Mark Thomas of the Oklahoma Press Association warned that the language on birth dates in personnel files might be added to another bill.

Sure enough, that's what happened. The restriction was added to HB 3382.

On Wednesday, the Senate General Conference Committee on Appropriations approved HB 3382, which heads to the House, the Tulsa World reported today.

HB 3382 was originally intended to make public once again recordings by the Oklahoma Highway Patrol.

The state Department of Public Safety’s audio and video recordings were public records until legislators exempted them in May 2005. (OKLA. STAT. tit. 51, § 24A.3(1)(h)(3))

Previous postings on this blog have further explained the history of that legislation: Oklahoma Highway Patrol dash cam videos should be public; OHP releases dashboard camera video; Are Oklahoma Highway Patrol dashboard camera videos a public record?

Now, the public is faced with regaining access to OHP videos or losing access to needed information about its employees.

Thomas told the Tulsa World that the OPA is recommending that HB 3382 be killed.

"The public will just have to live without having access to the dash cam recordings of their state troopers," he said.

Given HB 3382's exemptions and other flaws, that seems best.

The bill would keep recordings closed during "an ongoing criminal or internal investigation to which the video or audio recording is relevant."

It also would require DPS to censor "all content which depicts, expressly or implicitly, the death of any person."

The bill also would allow DPS to charge $1 for the first page of a record and 25 cents for subsequent pages of a report. It sets the fee for copies of DPS videos and still images at $50.

State law already already exempts public employees' Social Security numbers, home addresses and telephone numbers.

But HB 3382, revised by Rep. Randy Terrill, R-Moore, and Sen. Anthony Sykes, R-Moore, would make it virtually impossible to determine if government employees have committed crimes, evaded paying taxes, filed for bankruptcy or made political contributions.

Eliminating access to the employee identification numbers would make it virtually impossible to track workers across government jobs.

The Oklahoma Public Employees Association and Oklahoma Troopers Association will get want they want either way: No public access to the video of their actions on patrol, or no way for the public to know about its own employees.

The public, on the other hand, will be the big loser this legislative session.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

Newspaper criticizes OU, OSU for keeping student parking tickets secret

OU and OSU officials are defying common sense by claiming that parking tickets issued to students are confidential educational records, The Oklahoman said in an editorial Saturday.

"The federal law was designed to protect students’ academic records, not such things as tickets issued to students for parking in the faculty lot," the newspaper said.

The universities refused to disclose the tickets to a student in my reporting course and later to a reporter for The Oklahoman. The student's story was published in The Daily O'Collegian and on this blog.

OSU and OU officials contend the tickets are confidential under the Family Educational Rights and Privacy Act. Open government experts disagree with that interpretation of the federal statute.

In its editorial, The Oklahoman called on federal education officials "to clean up and simplify the law."

"Meantime, the application of common sense is in order," the newspaper said.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

Legislator withdraws bill restricting access to autopsy records

State legislators won't be voting again this session on a bill that would have restricted access to portions of homicide autopsy reports.

Rep. Leslie Osborn, R-Tuttle, pulled HB 3155 because of stiff opposition on the House floor, The Oklahoman reported today.

Versions of the bill had passed the House and Senate. Osborn said the revised measure being considered Monday was intended to cover only homicides in which law enforcement officials "are grasping at straws" and have little evidence pointing to a suspect, The Oklahoman reported

Among those who seemed critical of the bill during an hour-long debate Monday were Rep. Lucky Lamons, D-Tulsa, and Rep. David Dank, R-Oklahoma City. Both legislators had signed FOI Oklahoma's Open Government Pledge during their most recent campaigns.

Of the 12 House members who have signed the Pledge, only Lamons -- a former Tulsa police officer -- voted against the original bill when it passed the House in March.

In April, this blog noted examples of the press and public using autopsy reports elsewhere to uncover incompetency and corruption by police, medical examiners and coroners.

But Osborn told The Oklahoman she might introduce another version of the bill next year even though a similar measure had also stalled during last year's legislative session.

Let's hope not. As evidenced elsewhere, the public has a legitimate need to know the details of autopsy reports involving homicides or when the manner of death is unknown.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

Tulsa County assessor signs Open Government Pledge

Tulsa County Assessor Ken Yazel has pledged that he and his office "will comply with not only the letter but also the spirit" of Oklahoma's Open Records and Open Meeting laws.

Yazel, seeking his third term, has disagreed with fellow county officials over open government issues.

In March, Yazel cast the dissenting vote when the Tulsa County Budget Board voted to require its members to complete a public records request form when they request information related to their meetings.

He also opposed a bill that would have allowed county commissioners to employ the same top aide. Yazel said the bill would open the door for scandal and likely lead to violations of the Open Meeting Act.

In signing FOI Oklahoma Inc.'s Open Government Pledge, Yazel 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."

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.

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

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

OSU, OU officials refuse to disclose parking citations given to students, say tickets are educational records protected by FERPA

(This story was written by Elise Jenswold, a student in my reporting course this spring. It was published Tuesday in The Daily O'Collegian. Thank you to FOI Oklahoma members Bob Nelon and Mike Minnis for their time spent answering questions for the article. -- Joey Senat)

Oklahoma’s two major public universities will not disclose parking citation records containing student names, claiming they are educational records protected from disclosure by a federal privacy law.

But three open records experts said they believe the records are public under the state’s Open Records Act because committing a parking violation has nothing to do with a student’s education.

A Maryland appellate court used the same reasoning in 1997 when it unanimously ruled that the same records at the University of Maryland were open under that state’s public records law. (Kirwan v. The Diamondback, 721 A.2d 196, 27 Media L. Rep. 1399 (Md. Ct. App. 1998))

The Maryland Court of Appeals said the Family Educational Rights and Privacy Act was not intended “to preclude the release of any record simply because the record contained the name of a student.”

“The federal statute was obviously intended to keep private those aspects of a student’s educational life that relate to academic status as a student,” the court said. “Prohibiting disclosure of any document containing a student’s name would allow universities to operate in secret, which would be contrary to one of the policies behind the Family Educational Rights and Privacy Act.”

The university’s student newspaper, The Diamondback, sought the records after learning that a basketball player had 285 parking violations, many for parking in handicapped spaces, and more than $8,000 in unpaid parking fines.

Oklahoma State University issued more than 18,029 parking tickets to students, faculty and visitors from Aug. 1 to April 9, according to university records.

OSU officials took 14 days to respond to a reporter’s request for the database of student parking violations. Ultimately, the university refused to disclose the names of students who received citations and provided only the types of violations that occurred in campus parking lots.

OSU attorney Doug Price said the individual records of citations given to students are educational records that must be kept confidential under FERPA.

University of Oklahoma officials also cited student privacy when they denied access to that school’s database of parking citations issued to students.

“I don’t believe I will be able to release student names. That has to be against a privacy right,” said Kris Glenn, a marketing and public relations specialist for OU’s parking and transit department.

OU’s open records administrator offered to provide “numbers and statistics, but no names because of student’s privacy.” Rachel McCombs said OU records containing student information could not be disclosed without a release form signed by the student.

FERPA defines educational records as school documents that “contain information directly related to a student.”

But Oklahoma City attorneys Bob Nelon and Michael Minnis said they don’t believe the parking citations are educational records because they are not related to student education.

FERPA excludes “records maintained by a law enforcement unit of the educational agency or institution that were created by that law enforcement unit for the purpose of law enforcement.”

The U.S. Department of Education has defined enforcement units as including commissioned officers or non-commissioned security guards authorized or designated to enforce state and local laws, or to “maintain the physical security and safety” of the campus.

Price said OSU’s parking citations “are processed through an administrative process and are not created for a ‘law enforcement’ purpose.”

An attorney for the Student Press Law Center, however, disagreed with Price’s interpretation of the statute.

“The definition of law enforcement unit is any part of the school that is officially authorized to enforce any state, local or federal law, or to refer people to proper authorities for violations of those laws,” said Adam Goldstein. “It doesn’t matter who is writing these tickets —if the Dean of Students is writing parking tickets, the Dean’s office is a law enforcement unit under the regulations and can’t cite FERPA to avoid disclosing law enforcement records.”

A 1998 written opinion by the Kansas attorney general drew a distinction between parking citations enforceable as misdemeanors and those enforceable only as administrative policies.

“If a university's parking rules and policies are legally enforceable as a misdemeanor, then the parking tickets may be exempt from FERPA as law enforcement records and thus not subject to its confidentiality requirements,” the opinion stated.

“Alternately, if the parking tickets are only enforceable on an administrative level within the university, they are more analogous to disciplinary records, which we believe are ‘education records’ which are generally closed by FERPA,” the opinion stated.

According to OSU policies, “Parking rules and regulations are enforced on campus by OSU Police Officers and OSU Parking Cadets.” Students, faculty, staff and campus visitors may appeal their citations.

“Visitors that receive a parking citation for the first time may get that ticket waived,” the policy states. “However, excessive violations or violations for parking in reserved or restricted parking areas, such as disability or spaces signed for specific vehicles will be enforced.”

OU’s parking regulations are enforced “primarily by Parking Control personnel of the Parking Office, who wear black and tan uniforms.”

“University parking citations are adjudicated wholly within the University as an administrative process,” according to OU policy.

OSU’s Doug Price also contended that even if the records were considered law enforcement records exempted from FERPA, they would not be subject to the state Open Records Act because they are not explicitly listed in the statute as records that police must provide to the public.

Nelon and Minnis, each of whom has won open records cases, disagreed with Price’s interpretation.

Nelon said that while the term "citation" is not used, “a citation presumably includes the kinds of information identified” in the list.

“Parking citations ought to be made available as public records,” said Nelon.

Subsequent media coverage:

• Oklahoma universities' parking ticket secrecy stirs questions, by Bryan Dean, The Oklahoman, 5.9.10.
• Are students' parking tickets public records? by Jenna Johnson, Campus Overload Blog, The Washington Post, 5.10.10.
• Common sense needed, Editorial, The Oklahoman, 5.15.10.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

Tulsa County judge blocks online access to court records during civil trials; Court clerk expects such restrictions to become more common

A Tulsa County district judge has twice ordered the removal of online court records for the duration of the related civil trials, the Tulsa World reported Monday.

Judge Linda Morrissey ordered the docket sheets removed from the Oklahoma State Courts Network Web site during a recent medical negligence case and a condemnation case in March, the newspaper said.

The Tulsa County court clerk told the newspaper she thinks these restrictions will become more common in Tulsa County. "I am surprised it has not come up in a criminal case," said Sally Howe Smith.

Morrissey told the newspaper the restrictions were intended to protect the litigants' right to a fair trial.

But before the judge restricts online access to public records, she should take other steps to protect the litigants' rights or be able to justify that those steps won't be effective.

A number of U.S. Circuit Courts of Appeal, including the Tenth Circuit, have used the balancing test for closing courtrooms to determine if court documents should be sealed.

Because the public is entitled to see these records, the judge may stop that access only if "closure is essential to preserve higher values and is necessary to serve that interest." (See, e.g., United States v. McVeigh, 119 F. 3d 806, 812-13 (10th Cir. 1997))

Morrissey told the Tulsa World that she routinely gives strong admonitions to jurors that they not search the Internet for information about the case being tried.

But the judge doesn't seem to believe that jurors are taking her seriously.

Subsequent coverage: Digital age can heighten public access quandary, editorial, The Oklahoman, 5.5.10.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism