New BA school superintendent waives search fee for copies of district's itemized legal bills

Broken Arrow's new school superintendent has waived the $90 search fee to redact information from copies of the district's itemized legal bills, says the woman who requested the records.

Beth C. Snellgrove said she received a phone call about noon today from district spokesman Keith Isbell, telling her that the new superintendent, Jarod Mendenhall, has waived the fee.

The fee was authorized by Gary Gerber, who retired today as superintendent.

Mendenhall's decision came after the FOI Oklahoma Blog's initial posting on the search fee last Thursday and an editorial and online article in The Broken Arrow Ledger today.

In the article, Gerber questioned Snellgrove's motive for requesting the records.

“Only Ms. Snellgrove knows her true motives for making the open records act request," he told the reporter.

"I don’t believe that Ms. Snellgrove’s request can be viewed in a vacuum," he said. "The timing of her request did raise eyebrows, as it came after the Sperry School District hired Ms. Snellgrove’s husband for what, I understood, to be a newly created position at Sperry. You will have to decide if this is reflecting a personal interest on her part rather than a public interest."

The reporter noted that Jim Sisney, who was dismissed as superintendent by the Broken Arrow Board of Education in 2008, is the superintendent of Sperry Public Schools.

This morning, the reporter asked me for a reaction to Gerber's comments. My response:

Ms. Snellgrove’s husband’s job for another school district would have no bearing on her status as a taxpayer and parent of children in Broken Arrow schools in making sure that district officials “are honestly, faithfully, and competently performing their duties as public servants.”

I asked Mr. Gerber twice if he considered the release of the itemized legal bills to be in the public interest. He wouldn’t answer the question. To say it’s not in the public interest would be idiotic and reveal him to be a petty bureaucrat. To say it is would be acknowledging that he couldn’t charge the search fee.

Mr. Gerber’s comments indicate he is charging the search fee because he has a personal grudge against Ms. Snellgrove rather than legitimate reasons under the state Open Records law.

Mr. Gerber’s response to this request leave me wondering how other people are treated when they ask the Broken Arrow school district for information that belongs to them – the public.

By waiving the fee, Mendenhall has taken a step in the right direction on what I suspect will be a long road to true transparency for Broken Arrow public schools.


Joey Senat, Ph.D.
Associate Professor
OSU School of Media and Strategic Communication

BA school district needs lesson in transparency, newspaper says

A $90 search fee for copies of the Broken Arrow school district's itemized legal bills serves only as a deterrent to taxpayers checking up on their government, the executive editor of The Broken Arrow Ledger writes in a column today.

"This decision to charge does nothing to promote openness and transparency from a school district that has been mired in controversy the last few years," wrote William Swaim. "It makes it that much harder for the average taxpayer to make a legitimate request — in fact, it’s a deterrent."

The FOI Oklahoma Blog reported Thursday that Broken Arrow Public Schools Superintendent Gary Gerber authorized a $90 search fee for copies of the district’s itemized legal bills in part because the taxpayer's request lacked a "direct relationship to the education of students."

Gerber told the requester, Beth C. Snellgrove, the fee also was based on “the nature and scope of the request” and “the apparent relationship of the request to the School District’s litigation with a former employee, of whom you are an adamant supporter.”

In short, Gerber discounted the taxpayer as someone seeking to ensure that district officials are properly doing their jobs. The state Open Records Act prohibits charging a search fee to such requesters.

Swaim called Gerber's third justification "appalling."

"Gerber might as well have come out and said, because Snellgrove supported former superintendent Jim Sisney, that she was on the wrong side of the issue and therefore should have to pay for it," Swaim wrote.

To read Swaim's full column: BA school district needs lesson in transparency

To read the full FOI Oklahoma Blog posting: BA school district charges $90 search fee to redact from legal bills, says records request posed excessive disruption, not pertinent to education


Joey Senat, Ph.D.
Associate Professor
OSU School of Media and Strategic Communication

Grand jury tells Skiatook school board to learn state Open Meeting Act to avoid possible violations

A Tulsa County grand jury investigating wasteful spending by Skiatook Public Schools said Friday the school board "needs to be educated about the Oklahoma Open Meeting Act laws to avoid future potential violations."

So has the board already violated the Open Meeting Act? Unfortunately, we might never know what the grand jury uncovered in this regard.

Any such crimes should not be shrugged off because the school board members were willfully ignorant of the laws.

State law already requires that all newly elected or appointed municipal officials undergo training on the Open Meeting Act. (OKLA. STAT. tit. 11, § 8-114(A)) The same should be required of school board members.

But even without it, they should know what's expected of them under the Open Meeting Act.

The grand jury also recommended that the school board immediately "hire a new attorney who can assist the Board in being more open and communicative to the public."

"The public forum should be routinely incorporated into all School Board meetings," the grand jury also said.

Two indictments by the grand jury remain sealed.

Skiatook parent Rob Ridenour told the Tulsa World he thought the school board often abused the Open Meeting Act by frequently conducting executive sessions.

"Ultimately, executive sessions prevent the fair exchange of information to the citizens. Without input, they can't really serve the interests of the public," he said.

Amen, brother.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

BA school district charges $90 search fee to redact from legal bills, says records request posed excessive disruption, not pertinent to education

Broken Arrow Public Schools Superintendent Gary Gerber authorized a $90 search fee for copies of the district’s itemized legal bills in part because the taxpayer's request lacked a "direct relationship to the education of students,” he said.

In a June 16 letter to the records requester, Gerber also justified the fee based on “the nature and scope of the request” and “the apparent relationship of the request to the School District’s litigation with a former employee, of whom you are an adamant supporter.”

In short, Gerber discounted the taxpayer as someone seeking to ensure that district officials are properly doing their jobs. Under the state Open Records Act, a search fee cannot be charged to "taxpayers 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))

Instead, Gerber considered the records request to be “an excessive disruption of the business of the school” because an attorney charged the district for the three hours to redact exempted information from 17 legal bills submitted during a seven-month period.

The school district’s detailed legal bills have been a FOI-issue since 2008 when Broken Arrow resident Chris Tharp and others requested them. District officials wouldn't provide the detailed billing records for the services provided.

(Tharp was recognized by FOI Oklahoma Inc. in March for his efforts to make the bills public. Read related blog postings.)

The amount spent by the school district on legal fees rose from $8,500 in fiscal year 2007-08 to more than $200,000 in 2008-09, said Tharp.

He hired an attorney, who in June 2009 requested documents demonstrating what legal services the Tulsa law firm Rosenstein, Fist & Ringold had provided for the district since being hired on Aug. 6, 2008.

After the school board hired an attorney for advice, it voted unanimously in late August 2009 to release the itemized bills to Tharp.

Tharp says he was not charged a search fee when the records were provided.

On Feb. 16, Beth C. Snellgrove requested the itemized legal bills submitted by Rosenstein, Fist & Ringold from July 1, 2009, to the date of her request.

She received an invoice of $12.50 (50 pages at 25 cents each) for copying and $90 for “3 hours administrative time to prepare request.”

Snellgrove said that when she had requested copies of the records provided to Tharp, the district did not charge her a search fee.

“That is why I did not expect there to be any search or administrative fees for my most recent Open Records Request for itemized legal bills,” she said.

Snellgrove said she hasn’t picked up these documents because she can’t afford the $90 fee.

The district’s fee schedule lists “$30 per hour for administrative time” in connection with charging a search fee.

If a search is necessary to furnish the documents and if this request is solely for commercial purposes or if the request is going to cause excessive disruption of the business of the School District, the person or organization making the request agrees to pay a search fee of $9.00 per hour for secretarial time; $30.00 per hour for administrative time; $100.00 per hour for computer query or programming (all calculated on quarter-hour increments).” (Policies/Section II- Community Relations/Fee Schedule for Duplication of and Search for School Records)

In accordance with the state Open Records Act, the district policy also states,

A search fee shall not be charged when the release of documents is in the public interest, including, but not limited to, release to the news media, scholars, authors and taxpayers seeking to determine whether those entrusted with the affairs of the government are honestly, faithfully, and competently performing their duties as public servants. (Policies/Section II- Community Relations/Production of Public Records)

In an e-mail June 10 to district spokesman Keith Isbell, I asked if the district contended that Snellgrove is not 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."

Gerber responded with a letter to Snellgrove, saying, “We believe this question to be misplaced.”

Gerber pointed to a 1995 Oklahoma Court of Appeals case stating, “Whether a records request is in the ‘public interest’ does not turn on the bare allegations and mere say-so of the requesting party, but is a question to be determined in light of the circumstances of the case.” (McVarish v. New Horizons Cmty. Counseling and Mental Health Servs. Inc., 1995 OK CIV APP 145, ¶ 3)

Gerber added:

In considering the totality of the circumstances surrounding your request, consideration was given to (a) the nature and scope of the request, (b) the request’s lack of direct relationship to the education of students at the School District, and (c) the apparent relationship of the request to the School District’s litigation with a former employee, of whom you are an adamant supporter.

Gerber’s reasoning seems flawed for the following reasons:

1. The “nature and scope of the request” would be similar to Tharp’s, which the school board voted 5-0 to fulfill. Tharp said he was NOT charged a search fee for the redacted copies he received.


2. Tharp and the citizens group Broken Arrow Parents for Truth wanted the legal bills to determine if the school board “is spending taxpayers’ money wisely, and not to the detriment of the overall purpose for BAPS – education.”
   
   Why wouldn’t the same reasoning apply to Snellgrove’s request?
   
   A review of legal bills could help reveal incompetency, dishonesty and other problems with the administration of the school district. Certainly, that has a “direct relationship to the education of students.”
   
   Also to be considered is the purpose of the Open Records Act “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.” (OKLA. STAT. tit. 51, § 24A.2)


3. As for Gerber’s third reason, FOI Oklahoma Inc. board member Doug Wilson said:
   

   In a world comprised of differing opinions, it would clearly be unreasonable for the School District to draw a line in the sand and say that the release of records to those people who support its actions is in the public interest but the release of records to those who do not support its actions is not in the public interest.

In justifying the search fee, Gerber also pointed to this comment by the court in McVarish,

We observe that the public interest is as equally well served by public agencies performing their essential services without burdensome, disruptive records requests as in providing release of information to tax payers.

However, the court in McVarish noted that the request at issue encompassed some 4,300 documents, which the community mental-health agency estimated would take three employees a week to compile.

In contrast, Snellgrove’s request required a review of 17 legal bills that took three hours, according to Gerber.

Gerber’s reliance on McVarish in this instance might be misplaced, said Wilson, an attorney who has won open records lawsuits against county assessors.

In McVarish, the Court of Civil Appeals had quoted with apparent approval the trial judge’s conclusion that “whether or not there’s any public purpose or whether it’s a matter of a private vendetta . . . I think what the legislature was perhaps trying to say was if there’s going to be some sort of substantial disruption of business of the public agency then a fee is not improper.”

Wilson said the trial court had “clearly overstepped its judicial authority” with its interpretation.

“Clearly, § 24A.5 says no such thing,” Wilson said.

Indeed, McVarish was not mentioned in subsequent attorney general opinions on the meaning of “In no case, shall a search fee be charged when the release of records is in the public interest, including, but not limited to, release to the news media, scholars, authors and taxpayers seeking to determine whether those entrusted with the affairs of the government are honestly, faithfully, and competently performing their duties as public servants.”

In a 1996 opinion, state Attorney General Drew Edmondson described that language as a “legislative warning,” saying:

Should a public body choose to charge a search fee it should proceed with caution in view of the legislative warning set forth in the Act which provides in pertinent part: ‘In no case shall a search fee be charged when the release of said documents is in the public interest, including, but not limited to, release to the news media, scholars, authors and taxpayers seeking to determine whether those entrusted with the affairs of the government are honestly, faithfully, and competently performing their duties as public servants.’ (1996 OK AG 26, ¶ 13 (quoting OKLA. STAT. tit. 51, § 24A.5(3))

Using absolute terms of his own in a 1999 opinion, Edmondson said, “Further, 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.” (1999 OK AG 55, ¶ 15)

Legislative intent also had been “quite clear” to then-Attorney General Robert H. Henry in 1988, when he said public bodies could not charge a search fee to reporters investigating government operations.

“[T]here is no situation under which a member of the news media may be lawfully charged a search fee by a public body,” he said. “51 O.S. 24A.5(3) … is quite clear on that point when it decrees ‘in no case’ may such search fees be assessed in such circumstances.” (1988 OK AG 35, ¶ 6 (citing OKLA. STAT. tit. 51, § 24A.5(3))

That prohibition on search fees would seem to apply to Snellgrove’s request given that the same sentence in the statute includes both the news media and “taxpayers seeking to determine whether those entrusted with the affairs of the government are honestly, faithfully, and competently performing their duties as public servants.”

Asked if Gerber didn’t consider disclosure of the legal bills to be in the public interest, Isbell responded:

Dr. Gerber points out the records in question are and have been available for release since March (2010) subject to the receipt of the fees previously detailed and agreed to by Ms. Snellgrove. Dr. Gerber points out that Ms. Snellgrove has so far failed and neglected to obtain the records.

The district’s form for requesting records lists the fees for a search if the request is for a commercial purpose or would “cause excessive disruption of the business of the School District.”

District officials neglected to include the provision that “In no case, shall a search fee be charged when. . . .”

Even if a court were to say that release of the itemized legal bills would not be in the public interest, a search fee could be charged to Snellgrove only if her request “would clearly cause excessive disruption of the public body’s essential functions.” (OKLA. STAT. tit. 51, § 24A.5(3))

Under the district’s policy, the superintendent decides if the request would cause an excessive disruption. The policy states,

Such a determination is made in light of the totality of the circumstances involved with each request, and factors to be considered include: (a) the number of documents sought, (b) their page lengths, (c) the number of employees who will be involved in the search, (d) the length of time that it will take to assemble the documents, (e) whether employees will be required to redact confidential information from documents, and (f) whether the request will divert staff from their regular jobs.

However, as Gerber noted, the redaction was done by attorney Kent B. Rainey of Rosenstein, Fist & Ringold.

In other words, Snellgrove’s request required the review of 17 legal bills by one outside attorney for three hours and no district employees were diverted from their regular jobs -- hardly an excessive disruption of the district’s essential functions.

The fact that Rainey charged the school district $190 per hour is irrelevant.

“Since a third party did the redacting, there is simply a monetary expense to the School District, and the statute talks about disruption, not expense,” explained Wilson.

Money wasn’t an issue for the school board in early June when it approved a $14,000 bonus for Gerber, whose annual salary is $140,000.

Gerber retires June 30 after a 36–year career in various jobs with the district. His replacement is Jarod Mendenhall, a former Union Public Schools assistant superintendent.

Broken Arrow Public Schools policy gives the superintendent nearly unfettered discretion in deciding which release of records is in the public interest and which requests pose an excessive disruption.

Perhaps Mendenhall will keep the letter and spirit of the Open Records Act in mind when he makes those decisions.

“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)

In the meantime, Gerber -- or the school board -- should reconsider charging the $90 search fee for Snellgrove's request.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

Executive session to discuss property appraisal, purchase limited to public body, its attorney, staff; State settles OMA suit against Tar Creek trust

Only the public body, its attorney and immediate staff may attend an executive session to discuss the purchase or appraisal of real property, the Oklahoma Supreme Court ruled Tuesday.

The Tar Creek relocation trust violated the state Open Meeting Act by allowing the state secretary of environment and appraisers into its executive sessions to discuss appraisals and property purchases, said the court. (LaFalier v. The Lead-Impacted Communities Relocation Assistance Trust, 2010 OK 48, ¶ 42).

By an 8-1 vote, the court ordered a district judge to determine if the violation was willful, in which case the minutes of the executive sessions will be made public. (See OKLA. STAT. 25, § 307(F))

Judge J. Dwayne Steidley had ruled on summary judgment against the more than 100 residents of the Picher-Cardin area in their lawsuit against The Lead-Impacted Communities Relocation Assistance Trust. Steidley, a Rogers County district judge, was assigned the case after Ottawa County judges recused themselves.

In overturning Steidley's ruling on the Open Meeting issue, the majority pointed to Section 307(D) of the Open Meeting Act:

An executive session for the purpose of discussing the purchase or appraisal of real property shall be 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. 25, § 307(D))

Writing for the majority, Justice Steven W. Taylor rejected the trust's contention that "the second sentence is expansive in that all those named in the first sentence may attend the executive session and anyone else who does not stand to profit from the executive session may also attend." (LaFalier, at ¶ 39)

Taylor noted that the statute "uses the phrase 'shall be limited.'"

Here, we deem 'shall' as mandatory, meaning anyone not listed is excluded from the executive session. Further, by listing those who may attend the executive session, the Legislature must have intended to exclude everyone not listed. Section 307(D)'s clear language is an expression of legislative intent that no one other than those enumerated are allowed to attend the executive sessions wherein the appraisal or the purchase of real property is discussed. (Id. at ¶ 40)

Section 307(D)'s second sentence excludes any landowner, real estate salesperson, broker, developer, or any other person who may profit from the purchase or appraisal of the real property under discussion.

As we construe section 307(D), any person allowed to attend the executive session in the first sentence is excluded if the person stands to profit from the transaction. This is the only plausible construction of section 307(D), and the only construction which honors both sentences of section 307(D). The Trust's position would make unnecessary section 307(D)'s first sentence because, under its position, anyone not standing to profit from the proposed transaction could attend the executive session. (Id. at ¶ 41)

Taylor said that even though an executive order makes the environment secretary "responsible" for the trust, "this does not mean that he is responsible for the Trust's operation." (Id. at ¶ 42)

"Rather, he is a liaison between for the Governor and the Trust," wrote Taylor. "When attending the Trust's meetings in his capacity as the Secretary of the Environment, he is there on behalf of the Governor." (Id.)

He noted that Section 308 of the Open Meeting Act specifically requires: "Any meeting between the Governor and a majority of the members of any public body shall be open to the public and subject to all other provisions of this act." (OKLA. STAT. 25, § 308)

"Section 308 cannot be avoided by having the Governor's representative attend an executive session. To so allow would gut section 308 of any real force," wrote Taylor. (LaFalier, at ¶ 42)

Justice James Winchester dissented, saying the district judge had properly relied upon a 1976 state attorney general opinion that "the decision as to who should be present is within the sound discretion of the board exercised in a reasonable manner based on the facts and circumstances in each instance.'" (Winchester dissenting, ¶¶¶ 1-3)

Winchester waived aside the fact that the attorney general opinion dealt with an executive session to discuss rehiring school personnel.

"Distinguishing that opinion by noting it regarded the rehiring of school personnel does nothing to limit the generalization made by the Attorney General. Is there some reason a school board can use sound discretion in an executive session, but the Trust cannot?" wrote Winchester. (Id. at ¶ 4)

To answer the Justice's question, perhaps the trust cannot because the Legislature placed an explicit statutory limitation on executive sessions to discuss property appraisals and purchases that it did not place on closed door meetings to discuss personnel.

Also on Tuesday, Gov. Brad Henry and legislative leaders approved a settlement of more than $366,000 to end a lawsuit in which two companies alleged the trust had violated the Open Meeting Act when it awarded a contract for demolition and cleanup at the EPA Superfund site.

Steidley had ruled against the trust in early May, saying the members had not awarded the $2.1 million contract during an open meeting. His ruling upheld a temporary restraining order issued by Ottawa County District Judge Robert Reavis in late April.

Reavis said the trust had violated the Open Meeting Act "by failing to properly post notice, agenda, or conduct any forum ... at which the bids received by the defendants were analyzed, considered, discussed or acted upon."

The trust "failed to publicly cast and record the votes of each participating member or maintain records of such proceeding," Reavis said.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

NWOSU's FERPA-claim for secrecy garners national criticism

Northwestern Oklahoma State University's claim that a federal privacy law prohibits it from disclosing which students receive scholarships funded by Alva's sales taxes is another example of why the statute is "broken," said the executive director of the Student Press Law Center.

"This is yet another example of why Congress and the Department of Education have to fix this broken statute. It's just far too easy for people who want to conceal embarrassing information to cry 'FERPA,'" said Frank LoMonte on the SPLC website Tuesday.

The distribution of more than $220,000 in scholarships last fall was questioned in January by Helen Barrett, an editor for The Alva Review-Courier and an FOI Oklahoma board member.

Barrett and the FOI Oklahoma Blog reported early last week that NWOSU officials say the Family Educational Rights and Privacy Act prohibits them from disclosing the names of recipients even though they have done so for the past 10 years under an agreement with the city.

At least some of the scholarship winners also have signed a FERPA form permitting the school to notify their hometown newspapers.

NWOSU handed out $214,000 from the scholarship fund for the recent spring semester.

Alva Councilman Roger Hardaway, who had insisted on seeing the list of recipients, told the SPLC he will again bring up the issue of public disclosure at the Council's meeting on July 6.


Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

Tulsa City Council's attorney says executive session starts when 'door is closed'; Experts disagree

The Tulsa City Council's attorney says executive sessions don't start until the "door is closed and the chairman says, 'We are now in executive session,'" the Tulsa World reported today.

That same attorney, Drew Rees, had advised council members Thursday that they could vote in executive session to exclude Tulsa Mayor Dewey Bartlett from the meeting.

His reasoning at the time was that the vote was procedural and, therefore, didn't violate the state Open Meeting Act.

(For why that reasoning doesn't hold up, read,

Tulsa City Council votes in executive session to kick mayor out of meeting.)

But Friday, Rees told the Tulsa World that the Council was not in executive session when the vote occurred.

Rees conceded that the Council had taken a public roll-call vote to enter into executive session but said such sessions don't start until the "door is closed and the chairman says, 'We are now in executive session.'"

That's creative -- but nonsense still the same.

Attorney General spokesman Charlie Price noted that the Open Meeting Act doesn't say an executive session begins when the public body is behind closed doors and someone declares the meeting has started.

Under the statute, "The executive session is authorized by a majority vote of a quorum of the members present and the vote is a recorded vote." (OKLA. STAT. 25, § 307(E))

As Mark Thomas of the Oklahoma Press Association explained to the Tulsa World:

"Once they publicly utter the words 'aye' or 'yes' to the motion and the vote is recorded, that's all that is required by law. It doesn't matter whether the door is opened or closed, the lights are on or off, or a gavel is banged on the table — surprise, surprise, you're in executive session."

Bartlett says he is considering filing a criminal complaint against the Council.

Rees, btw, is a Republican candidate for the Tulsa County Commission District 3 seat.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

Tulsa City Council votes in executive session to kick mayor out of meeting

Tulsa city councilors voted in executive session Thursday to remove Mayor Dewey Bartlett from their meeting to discuss the results of an independent investigation into his chief of staff, the Tulsa World reported Thursday.

"I told them that I had the right to enter the room and be part of the meeting, and I told them they were in violation of state law because they took a vote while in executive session," Bartlett told the newspaper.

Under the Oklahoma Open Meeting Act, "any vote or action on any item of business considered in an executive session shall be taken in public meeting with the vote of each member publicly cast and recorded." (OKLA. STAT. 25, § 307(D)(3))

Another provision of the statute also requires that "[i]n all meetings of public bodies, the vote of each member must be publicly cast and recorded." (OKLA. STAT. 25, § 305)

Bartlett said the Council voted unanimously to exclude him from the meeting. That vote occurred behind closed doors.

The Council also is limited to discussing in executive session only the topics listed on the agenda. Only nine topics are permissible for executive sessions. Excluding the mayor from the executive session was not on the agenda and is not one of the permissible topics. (OKLA. STAT. 25, § 307(B))

After the meeting, Council attorney Drew Rees said councilors had not violated the Open Meeting Act because the vote was purely a procedural matter on who should be involved in the meeting, reported the Tulsa World.

But that vote was not "publicly cast" as required by the Open Meeting Act.

Perhaps Bartlett will file a complaint with police. Violating the Open Meeting Act is a misdemeanor punishable by up to the one year in the county jail and a $500 fine. (OKLA. STAT. 25, § 314)

Bartlett and four of the nine city councilors signed FOI Oklahoma's Open Government Pledge during their 2009 campaigns. The councilors are Roscoe Turner, D-Dist. 3; Jim Mautino, R-Dist. 6; Bill Christiansen, R-Dist. 8; and G.T. Bynum, R-Dist. 9.

To abide by that pledge and the Open Meeting Act, the Council on Thursday should have reconvened in the public meeting to discuss and vote on excluding the mayor. The public was entitled to observe the discussion and voting.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

Newcastle councilwoman seeking Senate Dist. 24 seat signs Open Government Pledge

The GOP challenger for Senate District 24 has pledged to "support at every opportunity" the inherent right of Oklahomans to "know and be fully informed about their government."

In signing FOI Oklahoma's Open Government Pledge, Newcastle Councilwoman Linda Molsbee also specifically promised to "support legislation to strengthen the letter and the spirit of Oklahoma's Open Meeting and Open Records laws."

Molsbee will face Republican incumbent Anthony Sykes in the July 27 primary. A Democrat and an independent also are campaigning for the seat.

Freedom of Information Oklahoma Inc. invites other legislative candidates and those running for statewide and county 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

Pawnee County backs off search fee for public access to commissioners' e-mails about controversial project

E-mail exchanges among Pawnee County commissioners regarding a proposed recycling facility and between the commissioners and an engineering consultant about the same project were made available to the public on Monday without a search fee being charged.

Commission secretary Kandy Jump made printed copies of all County Commission e-mails available in a binder for public viewing, said Jana Dallas-Wagner, one of two residents requesting the e-mails.

District Attorney Larry Stuart had advised Jump to charge a search fee because sorting out specific e-mails was causing "excessive disruption of the essential functions of the operations of" the county commission office. (Read previous posting on issue.)

Dallas-Wagner and fellow-requester Laurie Mittasch said Jump had estimated the fee at $101.08 (seven hours of Jump's time at $14.44 an hour).

In a May 29 letter to Dallas-Wagner, Stuart quoted an Open Records Act provision specifically allowing a search fee to be charged “if the request (a.) is solely for commercial purposes, or (b.) would clearly cause excessive disruption of the essential functions of the public body.” (OKLA. STAT. 51, § 24A.5(3))

However, Stuart did not mention this subsequent language in the same provision:

In no case, shall a search fee be charged when the release of records is in the public interest, including, but not limited to, release to the news media, scholars, authors and taxpayers seeking to determine whether those entrusted with the affairs of the government are honestly, faithfully, and competently performing their duties as public servants.

Stuart is retiring after serving as district attorney for 32 years. First Assistant District Attorney Jeff Jones, a Democrat, and state Rep. Rex Duncan (R-Sand Springs) are competing to replace him.

Earlier this month, Mittasch said commissioners should have been required to print the e-mails, which should have been put in a binder the public could access.

Mittasch and Dallas-Wagner say Jump told them she made an "executive decision" to do just that.


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

NWOSU claims FERPA prohibits disclosure of students receiving $214,000 in scholarships funded by Alva sales taxes

An Alva city councilman last week questioned the claim by Northwestern Oklahoma State University officials that a federal privacy law prohibits them from disclosing which students receive scholarships funded by the city's sales taxes, The Alva Review-Courier reported Sunday.

NWOSU officials had provided the names for the past decade under a 1999 agreement with the city.

NWOSU also requires students receiving the scholarships to sign a FERPA form permitting the school to notify their hometown newspapers, reported Helen Barrett of The Alva Review-Courier and an FOI Oklahoma board member.

But last month when university officials submitted a $214,000 bill for scholarships distributed in the spring, they claimed the Family Educational Rights and Privacy Act forbids disclosure of the names.

In January, The Alva Review-Courier had raised questions about the distribution of the fall semester scholarships.

Of the $220,222 in Alva Incentive Sales Tax Scholarships distributed that semester, $57,000 was awarded to 57 athletes, the newspaper reported. Each received $1,000, which was the largest amount given to students.

In contrast, 18 students received valedictorian scholarships of $750 each.

At last week's meeting, Councilman Roger Hardaway questioned why the City Council had not been given the list of names when school officials presented the bill for spring scholarships.

“We're doing the public's business here. We should do it in the light, not in the darkness,” said Hardaway, who signed FOI Oklahoma's Open Government Pledge in 2009.

"We're becoming less open instead of more open," he said. "I think the newspaper should publish a list of every single person who gets this money because it's public money. If they don't want to waive that right, then don't give them the money.”

At Hardaway's insistence, he was allowed to see the list prior to the Council meeting.

But City Attorney Rick Cunningham told Hardaway that if he gave the list to someone not on the Council, he could be cited for violating a federal law. (Rick Cunningham is the husband of NWOSU President Janet Cunningham.)

The article didn't specify which federal privacy law Hardaway might be violating.

However, FERPA wouldn't seem to apply to Hardaway in these circumstances.

Although Hardaway is a NWOSU history professor and scholarship coordinator for the school's social sciences department, he would have distributed the list in his capacity as an elected city official, not as a university employee.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

DA says search fee may be charged for promptly sorting out Pawnee County commissioners' e-mails about controversial public project

District Attorney Larry Stuart says a search fee may be charged to taxpayers for promptly responding to their request for e-mail exchanges among Pawnee County commissioners regarding a proposed recycling facility and between the commissioners and an engineering consultant about the same project.

The fee for sorting through commissioners' e-mails to find the requested ones would be an estimated $101.08 (seven hours at $14.44 an hour), the requesters say they were told today.

Stuart, district attorney for Pawnee and Osage counties, said the fee may be charged if the search is causing "excessive disruption of the essential functions of the operations of" the county commission office.

In a May 29 letter to one of the county residents requesting the e-mails, Stuart quoted an Open Records Act provision specifically allowing a search fee to be charged “if the request (a.) is solely for commercial purposes, or (b.) would clearly cause excessive disruption of the essential functions of the public body.” (OKLA. STAT. 51, § 24A.5(3))

However, Stuart did not mention this subsequent language in the same provision:

In no case, shall a search fee be charged when the release of records is in the public interest, including, but not limited to, release to the news media, scholars, authors and taxpayers seeking to determine whether those entrusted with the affairs of the government are honestly, faithfully, and competently performing their duties as public servants.

In a 1996 opinion, state Attorney General Drew Edmondson described that language as a “legislative warning,” saying:

Should a public body choose to charge a search fee it should proceed with caution in view of the legislative warning set forth in the Act which provides in pertinent part: ‘In no case shall a search fee be charged when the release of said documents is in the public interest, including, but not limited to, release to the news media, scholars, authors and taxpayers seeking to determine whether those entrusted with the affairs of the government are honestly, faithfully, and competently performing their duties as public servants.’ (1996 OK AG 26, ¶ 13 (quoting OKLA. STAT. tit. 51, § 24A.5(3))

Using absolute terms of his own in a 1999 opinion, Edmondson said, “Further, 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.” (1999 OK AG 55, ¶ 15)

Legislative intent also was “quite clear” to then-Attorney General Robert H. Henry in 1988, when he said public bodies could not charge a search fee to reporters investigating government operations.

“[T]here is no situation under which a member of the news media may be lawfully charged a search fee by a public body,” he said. “51 O.S. 24A.5(3) … is quite clear on that point when it decrees ‘in no case’ may such search fees be assessed in such circumstances.” (1988 OK AG 35, ¶ 6 (citing OKLA. STAT. tit. 51, § 24A.5(3))

That prohibition on search fees would seem to apply to the request for the Pawnee County commissioners' e-mails given that the same sentence in the statute includes both the news media and “taxpayers seeking to determine whether those entrusted with the affairs of the government are honestly, faithfully, and competently performing their duties as public servants.”

The specific request by residents Laurie Mittasch and Jana Dallas-Wagner seems to meet that requirement.

"We have been having difficulty obtaining information on the 'recycling facility' project, and it has become a very frustrating endeavor," Dallas-Wagner told the FOI Oklahoma Blog.

The engineering consultant, Craig Treiber, is being paid $6,000 a month plus expenses from tax monies to coordinate the proposed waste recycling/biomass processing facility.

Treiber was paid nearly $30,000 from January to May 7 for his work on the project, according to The Pawnee Voice on June 2.

(The Pawnee Voice also reported that no contract for Treiber was on file with the Pawnee County clerk despite First Assistant District Attorney Jeff Jones being asked by county commissioners on Nov. 25 to write a contract for Treiber.)

Pawnee County commissioners have conceded publicly that Treiber reported to them via electronic mail.

The project itself is a controversial one that is drawing heated public opposition, according to The Cleveland American.

Consequently, it would seem that no search fee should be charged to Dallas-Wagner and Mittasch to fulfill their request.

Dallas-Wagner told the FOI Oklahoma Blog that 29 e-mails were forwarded to her between her request on May 17 and May 20.

On May 26, she was told by commission secretary Kandy Jump via e-mail that Stuart and First Assistant District Attorney Jeff Jones had told Jump to stop forwarding e-mails and instead "prepare an estimate of how long it will take me to complete the task plus the time I have already spent, and multiply it by my hourly wage to arrive at an estimated cost that will have to be paid upfront."

In Stuart's letter, he said it was taking Jump "considerable time to sort through all e-mails received to determine which ones are applicable" to the request.

Stuart said the search might have to be done "at times other than normal business hours so that the employee can still perform her normal work."

"Should you determine that you do not desire to post a deposit to perform the research then the same shall be performed as time is available to Ms. Jump and as will not cause a disruption to her office," he said.

The Open Records Act requires that governments provide "prompt, reasonable access" to public records. (OKLA. STAT. tit. 51, § 24A.5(5))

State Attorney General Drew Edmondson has defined that phrase as meaning "only the time to locate and compile the records." (1999 OK AG 58, ¶ 15)

On Wednesday, I sent Stuart an e-mail asking him to clarify any misunderstandings about his reason for charging the search fee. He was told my deadline for posting to the blog was noon Friday. The same e-mail was copied to Jones and Jump. No one has responded.

Stuart is retiring after serving as district attorney for 32 years. Jones is running to replace him.

Mittasch thinks commissioners should have been required to print the e-mails, which should have been put in a binder the public could access.

"If they had done that, I would have no problem visiting the courthouse to view the book or pay for copies if needed," she said.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism