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