Owasso agrees to release police officer lapel camera video, audio materials after family files Open Records Act lawsuit

Owasso city officials have agreed to provide the police officer lapel camera video and audio materials sought by the family of a Tulsa man who died Oct. 27 in the Tulsa County jail, the Owasso Reporter reported Thursday.

The family had filed an Open Records Act lawsuit against Owasso after the police department would release only an arrest report, a radio log and a computer-aided dispatch report.

In the lawsuit, the family argued that the lapel video and other materials were "essential in determining the events which transpired during the arrest," the Tulsa World reported.

An attorney for the city had told the family that the video and audio materials were "in my opinion outside the scope of documents you are entitled to under the Open Records Act," the Owasso Reporter said.

In November, Owasso City Manager Rodney J. Ray refused requests by the Owasso Reporter and Tulsa World for a copy of lapel camera video showing a police lieutenant using excessive force for which he was fired.

Ray said arrest videos are not included in the eight categories of law enforcement records that must be released under the state Open Record Act. (See OKLA. STAT. tit. 51, § 24A.8(A)(1-8))

The statute allows police departments to deny access to other law enforcement records "except where a court finds that the public interest or the interest of an individual outweighs the reason for denial." (OKLA. STAT. tit. 51, § 24A.8(B))

But Ray said the public interest in releasing the lapel camera video of the police lieutenant using excessive force didn't outweigh protecting his right to appeal his firing.

In August, a Rogers County judge held that the Claremore Police Department's dash-cam recordings are not public records under the state Open Records Act.

But Associate District Judge Sheila A. Condren's ruling on the status of police videos runs contrary to relevant cases and to common practice in the state.

In 2005, an Oklahoma County district judge barred "the Oklahoma Highway Patrol from keeping videotapes of traffic arrests secret." (That ruling spurred legislators that year into exempting all Department of Public Safety dash-cam audio and video recordings.)

A year earlier, the state Supreme Court had held that Department of Public Safety recordings of administrative hearings concerning revocation of drivers' licenses were public under the Open Records Act. (Fabian & Assoc., P.C., v. State ex. rel. Dept. of Public Safety, 2004 OK 67)

The Supreme Court said the requested tapes contained facts concerning arrests and therefore were open under the Open Records Act. (Id. ¶ 14)

The statute makes public the "facts concerning the arrest, including the cause of arrest and the name of the arresting officer." (OKLA. STAT. tit. 51, § 24A.8(2))

"By this statute," the Supreme Court said, "DPS is required to make available for public inspection facts concerning the arrest. Fabian asserts that the requested tapes contain the facts concerning the arrest and therefore § 24A.8(A)(2) requires the tapes to be open for public inspection. We agree."

Owasso city officials apparently agreed that the lapel video should be public after the family forced them into court on the issue.


Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications

Emails reveal likely members of calendar committee, raise doubts about Stillwater school district's open records response

Emails sent from a Stillwater public school official to a calendar committee reveal the likely identities of members omitted from the district's response to an Open Records Act request.

The emails were sent from Annie Needham, administrative assistant for educational services, to committee members on Nov. 10 and Nov. 11.

The recipient lists include johnh@meridiantech.edu, candace.thrasher@okstate.edu, jscott@stillwater.org, stwymcachildcare@gmail.com and toniwolfe@renkids.com.

According to organizational websites, those are the email addresses for:

• John Howell, assistant superintendent of Meridian Technology Center in Stillwater;
• Candace Thrasher, manager of outreach education for the OSU College of Education;
• Jim Scott, operations manager for the Stillwater Parks and Recreation Department;
• Sarah Alleman, child care director for the Stillwater YMCA; and
• Toni L. Wolfe, director of The Renaissance School at Sangre in Stillwater.

Wolfe provided the emails to Stillwater parent Mitsi Andrews, who last week requested the names of the school district committee that had proposed a controversial school calendar.

Wolfe said Stillwater Superintendent Ann Caine asked her to serve on the committee.

The emails raise additional serious doubts about the sincerity of the district's response to Andrews' request.

An attorney for the district said it had only one document with the names of the committee members and that the record was only a "partial list of members."

Missing are the names of representatives from OSU, Meridian Technology Center, the city of Stillwater and local childcare providers that Caine said were on the committee.

But Needham's emails include the full names for Candace Thrasher and Toni Wolfe. Why weren't these emails included in the district's response?

For that matter, how could Needham have sent emails to the committee if she didn't have a membership list of some kind?

And how could the district contact the non-employee members -- as the attorney said it would do -- to ask for their committee-related emails, text messages and other correspondence also requested by Andrews? (Read related posting on search fee the district wants to charge Andrews.)

And how could Caine reconvene the committee in January, as she told the school board she would do, if she doesn't have their names?

The statutory definition of public record is "all documents, including, but not limited to any book, paper, photograph, microfilm, data files created by or used with computer software, computer tape, disk, record, sound recording, film recording, video record or other material regardless of physical form or characteristic,..." (OKLA. STAT. tit. 51, § 24A.3(1))

That definition "is broad enough to include any method of memorializing information," the state Supreme Court said in 2004. (Fabian & Assoc., P.C., v. State ex. rel. Dept. of Public Safety, 2004 OK 67, ¶ 10)

The purpose of the Open Records Act is "to ensure and facilitate the public's right of access to and review of government records...." Facilitate means to make easier, to bring about.

Public agencies also must comply with not only the letter but also the spirit of the Open Records Act, which says Oklahomans "are vested with the inherent right to know and be fully informed about their government." (OKLA. STAT. tit. 51, § 24A.2)

Even though Caine had made it clear to Andrews that she didn't want the committee member names disclosed, Stillwater residents are entitled to know who helped shaped public school policy.

And now the question is whether the school district fulfilled its obligation under the Open Records Act when it responded to Andrews' request.


Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications


The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.

Stillwater school district charges search fee, $250 deposit to inspect emails of committee that proposed controversial school year calendar

A Stillwater parent wants to read the emails, text messages and other correspondence in which members of a school district committee discussed a controversial calendar that the school board appears ready to adopt for 2013.

Mitsi Andrews asked to inspect the emails after being told by Superintendent Ann Caine that no minutes existed for the committee's meetings.

Caine and the district won't even tell Andrews the names of all the committee members. (Read the related posting.)

And an attorney for the district now says Andrews has to pay a $250 deposit before the district will begin compiling the emails for her inspection.

And the cost includes a search fee, said Kent B. Rainey of Rosenstein, Fist & Ringold.

Yes. Another school district represented by this Tulsa law firm wants to charge a search fee to disclose records clearly in the public interest -- even though the state Open Records Act clearly prohibits such a fee in such circumstances.

In a letter to Andrews, Rainey said a search of archived emails from July 1 to Dec. 8 found 897 with "calendar committee" in the body. Nearly 21,000 emails were found with "calendar" in the body.

Rainey said the district doesn't archive employee text messages so the 36 district employees on the committee will have to be asked for such messages. He said a method of retrieving the messages would have to be determined.

Rainey said 15 non-district employees serve on the committee. He said those members will have to be asked for emails, text messages and other correspondence that they exchanged among themselves but not with district employees.

(How could the district contact those non-employees if it doesn't have a record of their names?)

All the collected documents will have to be reviewed by district personnel or his law firm for exempted material, he said.

For these reasons, Rainey said, "The District believes your ORA request would clearly cause excessive disruption of the District's essential functions."

Therefore, he said, Andrews will be charged a "fee to recover the direct cost of the document search."

But the Open Records Act prohibits a search fee in these circumstances, stating:

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. (OKLA. STAT. tit. 51, § 24A.5(3))

Andrews' request certainly fits within this provision. She has requested records that can reveal the pros and cons discussed by the committee, and which, if any, alternatives were rejected and for what reasons.

In June 2010, another school district represented by Rosenstein, Fist & Ringold tried to charge a $90 search fee for copies of the district’s itemized legal bills.

The Broken Arrow Public Schools superintendent at the time considered the records request to be "an excessive disruption of the business of the school" because Rainey charged the district for the three hours to redact exempted information from 17 legal bills submitted during a seven-month period.

Current BAPS Superintendent Jarod Mendenhal not only rescinded the search fee when he took office a week later but also agreed that one shouldn't have been charged in the first place. A district spokesman said:

Clearly the Act says 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 affairs of governments are honestly faithfully, and competently performing their duties as public servants.

Most requests fall under that description meaning a search fee can’t and won’t be charged. If a request for commercial uses causes an excessive disruption of the business of the district, it could be assessed a search/administrative fee per the Open Records Act.

Because the Stillwater school district is represented by Rosenstein, Fist & Ringold, it is useful to review legal arguments made by the Broken Arrow superintendent who tried justify a search fee.

Gary Gerber had pointed to this comment by the Oklahoma Court of Appeals in a 1995 case:

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. (McVarish v. New Horizons Cmty. Counseling and Mental Health Servs. Inc., 1995 OK CIV APP 145, ¶ 3)

In McVarish, the court 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."

But the trial court had "clearly overstepped its judicial authority" with its interpretation, said an attorney serving on the FOI Oklahoma Inc. board of directors in 2010.

"Clearly, § 24A.5 says no such thing," said Doug Wilson, who won several Open Records Act cases before becoming an assistant district attorney for Tulsa County.

Indeed, McVarish was not mentioned in subsequent attorney general opinions on the meaning of "In no case, shall a search fee be charged when...."

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 Andrews' 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."


Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications


The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.

Stillwater school district won't disclose all members of committee that shaped school calendar policy

For two months, a committee of Stillwater school district employees and others from the community discussed -- and then proposed -- a controversial calendar for next school year.

No public notice. No agendas. No meeting minutes.

Now, an attorney for the district says only one document with the names of the committee members exists and it's only "a partial list of members."

And a district parent wanting to inspect the committee's emails will have to pay a search fee because the request "would clearly cause excessive disruption of the District's essential functions," said Kent B. Rainey of Rosenstein, Fist & Ringold.

(A later posting on this blog will address why the Open Records Act prohibits a search fee from being charged to the parent.)

Rainey also told Mitsi Andrews that she would have to pay a $250 deposit before the district would begin compiling the emails for her inspection.

Andrews received two letters from Rainey on Wednesday evening, the day after the school board voted to keep the traditional school calendar for 2012-13. But a continuous learning academic calendar will be up for consideration again next year, the Stillwater NewsPress reported.

School Superintendent Ann Caine told the board she had proposed the expanded calendar idea to the district’s annual calendar committee.

District parents learned of the continuous learning calendar proposal in an email from the "SPS Calendar Committee" at 4:10 p.m. on Dec. 2. They were given four days to respond to an online survey about the proposal.

According to that email, the committee consists of a teacher, parent, support staff member and administrator from each school site.

"Additionally, representatives from Oklahoma State University, Meridian Technology Center, the City of Stillwater, and local childcare providers also participated and provided valuable input," the email said.

"As a result of the deliberations of the committee, a proposal is being put forth to move the district to a continuous learning calendar," the email said.

Andrews said that was the first she had heard of the committee and the proposed change for the next school year, so she telephoned and emailed Caine asking for a list of the Calendar Committee members, and agendas and minutes of its meetings.

In an email Dec. 7, Caine responded, "We do not have an agenda or minutes from our committee meetings."

Caine's administrative assistant had told Andrews the committee was not appointed by the school board.

If the committee wasn't appointed by the board, then it isn't subject to the state Open Meeting Act. But no agendas? No minutes? No notes of any kind? How did members know what they were considering from meeting to meeting?

As for the names of the committee members, Caine responded, "I do not feel comfortable releasing the names of the committee because I do not have permission from them to do so."

Andrews asked again but used a more formal request letter.

Rainey responded on behalf of the district. He said the committee has about 51 members, of which 36 are district employees.

The "partial list" of 43 members includes only district employees, parents and Board Member Debra Vincent.

Missing are the names of representatives from OSU, Meridian Technology Center, the city of Stillwater and local childcare providers.

How convenient given Caine's refusal to identify those members. And it's difficult to believe for the same reason.

Caine and other district officials know, of course, who the other members are. They know whom they invited to participate. Certainly, they know who accepted. Didn't the district have sign-in sheets for the meetings?

And how else could Caine reconvene the committee in January -- as she told the school board she would -- to begin drafting another proposal to go into effect in 2013.

But in Rainey's letter, he emphasized, "The District is not required to respond to questions or interrogatories, only to provide documents that are in existence."

In other words, don't bother asking because we aren't going to tell you.

But the public is entitled to know who helps shape public school policy.

The Oklahoma Open Meeting Act states, "It is the public policy of the State of Oklahoma to encourage and facilitate an informed citizenry's understanding of the governmental processes and governmental problems." (OKLA. STAT. tit. 25, § 302)

Oklahoma’s Open Records Act starts with the following statement of principle:

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)

The stated purpose of the Open Records Act is "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."

These important principles apply even in Stillwater.


Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications


The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.

Oklahoma Supreme Court supports public's need to know by not limiting personal information in court records

Oklahoma Supreme Court justices on Monday unanimously agreed not to ban complete dates of birth and street addresses from criminal and civil court records.

That's a surprise given the majority's ruling in late July denying public access to government employees' birth dates and worker identification numbers in personnel files. The majority said no valid public interest existed in knowing the information.

Just two months later, the court proposed requiring that filers remove all but the year from dates of birth, the street addresses from home addresses, the names of minor children, all but the last four digits of Social Security, drivers license, taxpayer identification and "other personal identification numbers" from court records in criminal and civil cases.

But the rule released Monday leaves complete dates of birth and street addresses in court records.

And it permits -- but doesn't require -- filers to keep confidential all but the last four digits in Social Security, taxpayer identification, financial account and driver's license numbers.

As Chief Justice Steven W. Taylor said in a concurrence:

This rule affirms the doctrine that (other than those sealed or closed by long-established law) every document filed with the Court Clerk is a public record. And this rule does not prohibit the inclusion of any information in any filed document.

Taylor's concurrence was joined by Justice Yvonne Kauger. She and Taylor had dissented in the government employees' date of birth ruling.

Under the rule released Monday, filers are responsible for following the guidelines. District court clerks are not responsible for reviewing documents for compliance. A document filed with the court clerk "become a public record as filed" even if it contains Social Security, taxpayer identification, financial account and driver's license numbers, dates of birth, street addresses "or other sensitive information."

The rule does not apply to felony, misdemeanor, traffic ticket or other cases where statutes or Court of Criminal Appeals rules "require the inclusion of the complete personal identifier number."

FOI Oklahoma Inc. and a number of other organizations and individuals had urged the court to reconsider its proposed limit on information in court records.

The court's decision Monday is a victory for the public's need to know in Oklahoma. The public has an interest in identifying elected officials, government employees and public figures involved in court actions. Oklahomans also have an interest in knowing more about the people in their lives, including those they do business with and those chosen to care for children.

The decision also helps individual Oklahomans distinguish themselves from others with similar names who are involved in court actions. In that way, the rule protects the privacy of Oklahomans.


Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications


The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.

Update: Owasso officials making 'work session' documents available to public prior to meetings

Owasso residents can now read staff memoranda and other documents that form the basis for policy discussions by the City Council during its monthly "work sessions."

City officials had been withholding the documents, claiming they were drafts exempted under the state Open Records Act.

But the statute contains no provision allowing governments to keep "drafts" secret from the public.

Instead, the statute permits governments to keep confidential "personal notes and personally created materials . . . prepared as an aid to memory or research leading to the adoption of a public policy or the implementation of a public project."

The exemption applies only prior to the official "taking action, including making a recommendation or issuing a report." (OKLA. STAT. tit. 51, § 24A.9)

In late October, City Manager Rodney Ray agreed to release those "work session" documents to the Owasso Reporter even though he disagreed that the Open Records Act required him to do so.

The Owasso Reporter asked City Attorney Julie Lombardi if the work session documents would be made available to the general public, too.

In November, the city began making the documents available to the general public.

Ray's administrative assistant, Juliann M. Stevens, emailed the September agenda packet to Jennifer Gray, who was a student in my media law course and also an Owasso resident.

The city also is posting the agenda packets for "work sessions" online. See the Nov. 8 packet and the one for tomorrow (Dec. 13).

Thank you to the Owasso city officials for making the documents easily available to the public.

Kudos to the Owasso Reporter for sticking up for not just its need to know but for the public's as well.


Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications


The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.

Update: Owasso city manager says public interest in releasing lapel camera video of police lieutenant using excessive force doesn't outweigh protecting his right to appeal firing

Owasso City Manager Rodney J. Ray this week refused local newspapers' requests for a copy of lapel camera video showing a police lieutenant using excessive force for which he was fired.

Arrest videos are not included in the eight categories of law enforcement records that must be released under the state Open Record Act, Ray said in an email Tuesday to the Owasso Reporter and Tulsa World. (See OKLA. STAT. tit. 51, § 24A.8(A)(1-8))

The statute allows police departments to deny access to other law enforcement records "except where a court finds that the public interest or the interest of an individual outweighs the reason for denial." (OKLA. STAT. tit. 51, § 24A.8(B))

Former police Lt. Michael Denton was fired Nov. 4 based on an official determination that he had used excessive force in the June 30 arrest of a Collinsville man.

Police Chief Dan Yancey said a police officer lapel camera captured video that was useful in the investigation of the complaint against Denton.

Ray, in denying the newspapers' Open Records Act request for the video, said Denton is "entitled under both local and state law to appeal his termination to the City of Owasso's Personnel Board and to also seek binding arbitration."

"After consideration of a number of factors including rights of arbitration and appeal guaranteed by law to the employee, the City of Owasso has determined that disclosure of the arrest video is not appropriate and does not believe the public interest outweighs the reasons for denial of this request," Ray said. "Therefore, requests for release of [the] arrest video must be declined."

Denton's attorney has said his client did not use excessive force and his firing was unjustified. Denton has initiated a grievance through the Fraternal Order of Police, the Owasso Reporter said Nov. 10.

But Ray didn't explain how public disclosure of the video would jeopardize Denton's rights of arbitration and appeal. Wouldn't the video be introduced as evidence in such proceedings? Wouldn't those officials make a decision based on evidence, not on public opinion? Will the video be released once the arbitration is completed?

As for whether the video should be considered a law enforcement record that must be disclosed, Ray's reasoning follows a Rogers County judge's ruling in August.

Associate District Judge Sheila A. Condren held that the Claremore Police Department's dash-cam recordings are not public records under the state Open Records Act.

She said requesters could ask a court to find that the release of a particular recording would serve a public interest that outweighs the reason for denial.

However, Condren's ruling on the status of police videos runs contrary to relevant cases and to common practice in the state.

In 2005, an Oklahoma County district judge barred "the Oklahoma Highway Patrol from keeping videotapes of traffic arrests secret." (That ruling spurred legislators that year into exempting all Department of Public Safety dash-cam audio and video recordings.)

A year earlier, the state Supreme Court that Department of Public Safety recordings of administrative hearings concerning revocation of drivers' licenses were public under the Open Records Act. (Fabian & Assoc., P.C., v. State ex. rel. Dept. of Public Safety, 2004 OK 67)

The Supreme Court held that the requested tapes contained facts concerning arrests and therefore were open under the Open Records Act. (Id. ¶ 14)

The statute makes public the "facts concerning the arrest, including the cause of arrest and the name of the arresting officer." (OKLA. STAT. tit. 51, § 24A.8(2))

"By this statute," the Supreme Court said, "DPS is required to make available for public inspection facts concerning the arrest. Fabian asserts that the requested tapes contain the facts concerning the arrest and therefore § 24A.8(A)(2) requires the tapes to be open for public inspection. We agree."

The Owasso lapel camera video certainly contains facts concerning the arrest of the Collinsville man in which the excessive force occurred.

Other local law enforcement agencies typically release such recordings. In June, for example, Catoosa officials agreed to release that police department's audio and video recordings. In August, the Oklahoma County sheriff released the dash cam video of a head-on collision in which a deputy was injured.

The public certainly has an interest in seeing how those entrusted with enforcing our laws are doing their jobs.

State legislators should resolve this issue by updating our Open Records Act to explicitly defining audio and video recordings of arrests as law enforcement records that must be disclosed along with incident reports and other information related to arrests.


Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications


The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.

Prepared Remarks, News Coverage of Interim Study on Legislative Transparency

Good Morning Rep. Jason Murphey and Members of the House Government Modernization Committee:

Thank you for this opportunity to discuss with you the issue of government transparency at the state Legislature.

I will begin by pointing out that Oklahoma’s Open Records Act starts with the following statement of principle:

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.

The stated purpose of the Open Records Act is "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."

Similarly, the Oklahoma Open Meeting Act states, "It is the public policy of the State of Oklahoma to encourage and facilitate an informed citizenry's understanding of the governmental processes and governmental problems."

Those statutes eloquently declare important principles. As one author has noted, "A basic tenet of a healthy democracy is open dialogue and transparency."

However, the Oklahoma Legislature appears to be one of only three in the nation to still be explicitly exempted from its state open records law.

In contrast, the open records statutes of our neighboring states – Arkansas, Colorado, Kansas and Texas – have been interpreted to include their respective state legislatures.

In at least 40 states, the legislature must abide by its open records law to at least some degree. Records of these legislatures are often open to the same extent as records of other public bodies.

Oklahoma's Legislature also appears to be one of only seven nationwide to be explicitly exempted from its open meeting law.

In contrast, meetings of the state legislative bodies in Arkansas, Colorado, Kansas and Texas are opened to the public, to varying degrees, by either statutory or constitutional provisions.

In all, state legislative bodies in 36 states must meet in the open to some degree because of a statutory or constitutional provision.

In Minnesota, for example, the legislature in 1990 passed a statute that is separate from the state Open Meeting Act and that requires all its meetings to be open. This includes the floor sessions and joint sessions of both chambers and meetings of standing committees, subcommittees, conference committees and legislative commissions.

Courts may not interpret or enforce the statute. Instead, each chamber adopts rules to implement it as well as the remedies for violations.

The House and the Senate allow anyone to file a written complaint alleging a violation of the open meeting requirements.

Under the House rules, the Speaker must investigate the complaint promptly. If the Speaker concludes that a violation may have occurred, the Speaker must refer the complaint to the Committee on Ethics for further proceedings.

In the Senate, the written complaint is submitted to the Chairman of the Committee on Rules and Administration, who must immediately forward the complaint to the Subcommittee on Ethical Conduct.

Such an approach here could alleviate concerns that a separation of powers prevents the courts from enforcing the Open Meeting and Records acts against the Oklahoma Legislature.

Regardless of the approach in Oklahoma, a need to protect legitimate privacy and confidentiality concerns will preclude some records and meetings from being open to the public. But legislators should strive for the greatest transparency while exempting only truly confidential information from disclosure.

In fact, medical records and similarly private information are already exempted from the otherwise public documents of state and local agencies.

In the context of legislative records, personal communications to a legislator in which a person exercises rights under the federal or state constitutions could be exempted from public disclosure. In fact, an exemption for personal communications exercising constitutional rights already exists under the Open Records Act.

But I urge you not to exempt communications to a legislator from other government officials or from registered lobbyists.

As noted earlier, the purpose of Oklahoma's Open Meeting and Open Records laws is to ensure and facilitate the public’s understanding of governmental processes and problems.

That understanding occurs best when the public observes frank and open discussions by its elected officials.

As our state Supreme Court said, "If an informed citizenry is to meaningfully participate in government or at least understand why government acts affecting their daily lives are taken, the process of decision making as well as the end results must be conducted in full view of the governed."

Exempting the Legislature from our state’s open government laws diminishes the public's role as a watchdog over the elected officials who most directly shape our state's policy and laws.

Without advance knowledge of what measures a government body will discuss and vote on, the public is deprived of its right to witness such decisions being made.

The public must have the opportunity to watch firsthand the debate in which alternatives are weighed, accepted or rejected. The reasoning of our elected officials is as important as their vote.

Implementing greater transparency at the state Legislature also would help foster public confidence in this body and in state government overall.

As U.S. Sen. Russell Long noted in 1964:

A government by secrecy benefits no one. It injures the people it seeks to serve; it damages its own integrity and operation. It breeds distrust, dampens the fervor of its citizens and mocks their loyalty.

These principles are true whether the public body is a city council or the state Legislature.

When a legislature avoids open government laws, it doesn’t build the public's trust or confidence. Instead, it raises suspicion that corruption is occurring behind those closed doors. It creates the appearance that back-room deals are being cut. It fosters incompetency and mediocrity.

Consider, for example, this Tulsa World editorial this past January, "Senators [and representatives] have nothing to fear from letting the public know what they are doing, unless they're doing something they don't want the public to know about."

Oklahomans expect their legislators to operate with the same public scrutiny required – rightfully so – of our other state and local officials.

I will close by acknowledging that operating in the open is certainly not always the most convenient or easiest way to conduct the public's business.

But in a democracy, it's the right way.

Thank you again for this opportunity.

Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications

Click on link for annotated version of these remarks.

News Coverage:

• Audio and copies of prepared statements are available at Interim Study 11-020. (Scroll to 11-020 and click on link.)
• Notes from the House Government Modernization Committee interim study, Peter J. Rudy, Oklahoma Watchdog, 11.10.11
• Okla. lawmaker touts proposal to end legislative exemption to state's Open Meetings Act, Sean Murphy, The Associated Press, 11.10.11
• Lawmaker plans to revive openness bill, Michael McNutt, The Oklahoman, 11.11.11, at 5A.

The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.

Requiring Legislature to abide by Oklahoma's open government laws is subject of interim study committee hearing Thursday

A Delaware senator will tell Oklahoma lawmakers on Thursday how her General Assembly conducts public business while complying with that state's open government laws.

Democrat Karen E. Peterson was instrumental in ending the Delaware General Assembly's self-imposed exemption from that state's open meeting and records laws in 2009.

An Oklahoma House committee is studying legislation to do the same here.

The House Government Modernization Committee, chaired by state Rep. Jason Murphey, will meet at 9 a.m. in Room 432A of the state Capitol.

Audio of the hearing will be streamed live on the House website and remain posted.

All documents and presentations used during the hearing will be posted. As will the interim study report.

Other speakers are Peter J. Rudy of Oklahoma Watchdog and myself.

The interim study, titled "Enhancing Transparency of the Legislative Process," will "focus on the positive effects of recent legislative rule changes and analyze the possible application of open records and meetings laws to legislative proceedings."

Murphey, a Guthrie Republican, requested the study after his bill requiring the Legislature to abide by the Open Meeting and Open Records laws died in a House committee during the last legislative session.

Murphey proposed adding the Legislature to the definition of public body under the Open Records and Open Meeting acts while removing its exemption from the statutes.

But HB 1085 wasn't taken up by the House Judiciary Committee chaired by Rep. Fred Jordan, R-Jenks.

In Delaware, political observers credited removing the General Assembly's overall FOI exemption with making the budget process more transparent and with cutting down on legislative shenanigans in the waning hours of the session.

By contrast in Oklahoma, a state trial judge last week indicated that "unseemly actions and even unethical behavior" are "business as usual" in the state Legislature.

In ruling that prosecutors have sufficient evidence against state Rep. Randy Terrill and former Sen. Debbe Leftwich for a bribery trial, Oklahoma County Special Judge Stephen Alcorn said,

Judges tend to be a bit cynical and tend to be realistic, but the court admits to being disappointed in what has repeatedly been described as business as usual at the Capitol.

Oklahoma legislative leaders should pay heed to a recent study that found strong state open government laws reduce corruption levels and increase the probability that corrupt acts are detected.

Sunshine goes a long way as disinfectant.


Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications


The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.

AG's Office to Public Officials: List information about impending lawsuits, claims under agenda items for executive session; Staff documents given to members of public body are not 'drafts' exempted under Open Records Act

At least the nature of an impending lawsuit or claim should be listed on the agenda item for an executive session under the Open Meeting Act's attorney-client privilege, an official with the state Attorney General's Office said Monday.

"The public has a right to know what you are going to discuss in an executive session," said Rob Hudson, first assistant attorney general.

He spoke to more than 200 government officials, news media and other members of the public at a Monday seminar in Oklahoma City. The next workshop on the state freedom of information laws will be Nov. 14 at the High Plains Technology Center in Woodward.

The seminars are free and open to the public. Registration is not required. The workshops are sponsored by Attorney General Scott Pruitt, the Oklahoma Press Association, Oklahoma Newspaper Foundation and FOI Oklahoma Inc.

The Open Meeting Act permits public bodies to conduct executive sessions to discuss

confidential communications between a public body and its attorney concerning a pending investigation, claim, or action if the public body, with the advice of its attorney, determines that disclosure will seriously impair the ability of the public body to process the claim or conduct a pending investigation, litigation, or proceeding in the public interest. (OKLA. STAT. tit. 25, § 307(B)(4))

The statute also states, "If a public body proposes to conduct an executive session, the agenda shall:

• Contain sufficient information for the public to ascertain that an executive session will be proposed;
• Identify the items of business and purposes of the executive session; and
• State specifically the provision of Section 307 of this title authorizing the executive session." (OKLA. STAT. tit. 25, § 311(B)(2)(a-c))

Hudson said listing only the specific statutory authorization for the proposed executive session under the attorney-client privilege would be a violation of the Open Meeting Act.

Hudson reiterated what Pruitt told a state agency in September: The agenda item should list information such as the name of the parties in the lawsuit.

"How else would the average person know what you are talking about," Hudson explained.

If the lawsuit or claim has not been filed, then the agenda item should include "at least the nature of it," Hudson said. "More is better."

On other Open Meeting Act issues, Hudson ...

• Warned against taking "straw polls" in executive sessions;
• Said a roll-call vote isn't required by the Open Meeting Act, "but it's the smart thing to do"; and
• Warned that a majority of a public body should not take action or discuss public business by phone, email or even Facebook.

Speaking about the Open Records Act, another member of Pruitt's staff warned governments against charging more than the direct, reasonable cost of copying documents.

"This isn't supposed to be a money-making operation," said Diane Clay, communications director for the Attorney General's Office.

Clay also agreed that staff memoranda and other documents are public records when given in agenda packets to members of public bodies.

The Oklahoma Open Records Act contains no provision for "drafts." Instead, the statute permits governments to keep confidential "personal notes and personally created materials . . . prepared as an aid to memory or research leading to the adoption of a public policy or the implementation of a public project."

The exemption applies only prior to the official "taking action, including making a recommendation or issuing a report." (OKLA. STAT. tit. 51, § 24A.9)

Clay reminded officials of the statute's purpose: "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)

Similarly, Hudson told officials to keep in mind the purpose of the Open Meeting Act: "Encourage and facilitate an informed citizenry’s understanding of the governmental processes and governmental problems." (OKLA. STAT. tit. 25, § 302)

He noted that the Oklahoma Supreme Court said the Open Meeting Act "is to be construed liberally in favor of the public" because the statute was "enacted for the public’s benefit." (Int’l Ass’n of Firefighters v. Thorpe, 1981 OK 95, ¶ 7)

And, Hudson pointed out, the Court of Civil Appeals held that "strict adherence to the letter of the law is required" and that "substantial compliance" is insufficient. (Matter of Order Declaring Annexation, Etc., 1981 OK CIV APP 57, ¶¶ 20-21)

Ultimately, Hudson warned officials: "The Open Meeting Act is the law. Don't break the law."


Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications


The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.

Washington County Judge dismisses BRTA lawsuit, says Oklahomans aren't entitled to sue to enforce Open Meeting Act unless specifically harmed by alleged violation

A Washington County judge sided with the Bartlesville Redevelopment Authority on Friday, dismissing a lawsuit alleging an Open Meeting Act violation by the public body.

In a 10-page ruling, Associate District Judge Russell Vaclaw said the plaintiffs, Joel Rabin and Sharon Hurst, made no claims that "their personal, contractual, or proprietary interests were affected by any decision by the BRTA in an executive session. Nor is there any specific claim of any specific class that they claim to represent."

Plaintiffs suing under the Open Meeting Act must demonstrate they "were directly harmed by the wrongful actions of a government in violation of the OMA," Vaclaw said. The statute "does not appear to allow for an avenue for a complaining party to simply complain that the government violated the OMA without showing any other harm to the individual."

The remedy for Oklahomans "who have no concern but that their government is working in the dark ... is a criminal prosecution for any willful violations," Vaclaw said. "If there was wrongdoing, charges could be filed or the matter may be presented to a grand jury.

"If the legislature intended to allow for a private remedy, then it is their responsibility to change the law, not this Court," he said. "To date, the legislature has not changed the remedies available under the OMA."

Rabin and Sharon alleged that the BRTA purposefully misled the public about the purpose of its Aug. 11, 2010, executive session.

The agenda for the meeting said the closed-door session would be to "Discuss Pending and/or Impending Investigations, Claims or Actions Affecting the BRTA." However, the agenda did not identify the specific item of business to be discussed in the executive session.

Vaclaw approved of the BRTA having used "impending" on the agenda. He noted that a 2005 attorney general opinion on the meaning of "pending" equated it with "impending." (2005 OK AG 29, ¶ 9)

In deciding that Hurst and Rabin had no right to sue, Vaclaw relied upon the state Supreme Court's three-part test in Holbert v. Echeverria, 1987 OK 99, ¶ 8, for determining if a private cause of action can be inferred from a regulatory statute:

1. The plaintiff is one of the class for whose special benefit the statute was enacted;
2. There is some legislative intent, explicit or implicit, suggesting that the legislature wanted to create a private remedy; and
3. Implying a remedy would be consistent with the underlying purposes of the legislative scheme.

Applying the test, the court in Holbert said private individuals had no right to sue for a violation of the state's Consumer Protection Act. The home buyers were not part of a class of persons for whose "especial benefit" the statute was enacted, the court said.

It explained that adopting "a broad construction for establishing a class would render the first factor ... virtually meaningless. When a statute is created for the benefit of the public at large, no special class is created in its wake simply because a remedy for injured persons is fashioned." (Id. ¶ 9) The court reasoned:

It is difficult to think of a term broader or more general than "consumer." Every individual, regardless of one's occupation, does in some respect occupy on a daily basis the status of consumer. Because everybody stands included, the term "consumer" does not describe any special class, but rather the public at large. Inasmuch as the Act is for the benefit of the general public, no special class is established for whose especial benefit it was created. (Id. ¶ 10)

Vaclaw noted that after the Holbert ruling, state legislators amended the Oklahoma Consumer Protection Act "to expressly provide for a private right of action."

Attorneys for Rabin and Hurst had pointed to a string of Oklahoma appellate court decisions involving plaintiffs suing public bodies over alleged Open Meeting Act violations.

But Vaclaw said that in all those cases, the plaintiffs "had some specific statutory, contractual or proprietary interest which allowed them to seek specific relief in those particular situations."

He agreed that the Open Meeting Act "exists for the benefit of the general public."

"But that does not grant a right to every individual citizen to sue the government body in civil court every time they believe the government violated the OMA," he said.


Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications


The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.

Clery Act: Campus crime logs required for public, private universities, colleges receiving federal funding

Oklahoma's Open Records Act doesn't require state universities and colleges to keep a public log of reported crimes.

But a federal law does.

The Clery Act requires public and private post-secondary schools that receive federal funding and maintain a police or security department to keep a daily crime log that is open to public inspection and is readily understandable. (34 CFR 668.46(f)) (20 USC §1092(f)(4)(A)(B))

The statute also imposes a number of important conditions on those crime logs that differ from the Open Records Act's requirements for such records, including:

• Crimes must be added to the log within two business days of their initial report to the campus police or the campus security department.
  
  • This time requirement also covers any addition to an entry or change in the disposition of a complaint. For example, federal education officials note, if the disposition of a crime is "pending" and an arrest is made later, the school has two business days to update the disposition on the original entry.
  • Schools aren’t required to update dispositions for crimes more than 60 days old.
  • A business day is defined Monday through Friday, except for days when the school is closed.
  • The only exceptions to this rule are if the disclosure is prohibited by law or would jeopardize the confidentiality of the victim.
  
  
• The log is required to include the nature, date (occurred and reported), time and general location of each crime, and its disposition if known.
  
  • The description of the location must mean something to the campus community.
  • But the location must not lead to identification of the victim.
  
  
• Victims' names must be redacted. This requirement supersedes the state Open Records Act, which has no such provision.



• Schools may temporarily withhold information only if there is clear and convincing evidence that the release of information would:
  
  • Jeopardize an ongoing investigation;
  • Jeopardize the safety of an individual;
  • Cause a suspect to flee or evade detection; or
  • Result in the destruction of evidence.
  
  
  • The school may withhold only the information that could cause the adverse effect.
  • That information must be disclosed once the adverse effect is no longer likely.
  • The person deciding to withhold the information should document the reason.
  
  
• The crime log for the most-recent 60 days must be open to public inspection, upon request, during normal business hours.
  
  • Schools may not require a written request.
  • Anyone may have access to the log, including media not associated with the school.
  • Logs older than 60 days must be made available for inspection within two business days of the request.

ADDITIONAL SOURCES:

• The Handbook for Campus Safety and Security Reporting, U.S. Department of Education.
• Student Media Guide to the Clery Act, Student Press Law Center.
• Summary Of The Jeanne Clery Act, Security on Campus Inc.
• Reporter’s Guide to FERPA: Navigating the Family Educational Rights and Privacy Act, SPJ.

Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications

FOI Oklahoma asks state Supreme Courts to drop proposed rules that would limit information in court records

Oklahomans have until Friday to tell the state Supreme Court what they think of proposed rules that would ban personal information from court records.

Here is FOI Oklahoma's letter to the court:

Freedom of Information Oklahoma Inc. asks the Oklahoma Supreme Court to reconsider its proposed rules that would remove personal information from criminal and civil court records.

FOI Oklahoma is a statewide organization founded in 1990 to educate the public on rights of the First Amendment and to promote openness in government. It has a broad based membership including journalists, attorneys, librarians and others interested in preserving the free flow of information.

The organization believes the court’s proposed rules are over broad and would negatively impact basic information that every citizen of the state should be able to access easily.

Especially chilling is the proposal to redact personal identification information. The public would lose its ability to track defendants in criminal and civil cases.

Although the court has said it does not want to limit access to court documents; that appears to be exactly what the proposed rules would do.

It is in the best interest of the public to have as much information available as possible. Erasing this information as proposed by the court would be a step back, not a step forward.

FOI Oklahoma endorses former Attorney General Drew Edmondson’s statement opposing any rule or legislation that limits the public’s right to know. Edmondson said that as a former prosecutor, having access to identification such as dates of birth on criminal court records is important.

FOI Oklahoma applauds the court’s work in making court records available electronically.
However, the organization feels removing personal identifiers from these records negates any positive aspect of electronic records.

FOI Oklahoma hopes the court will recognize the public’s right to full access of this information far outweighs all other concerns.

Sincerely,

Bryan Dean, President, FOI Oklahoma
Staff Writer, The Oklahoman

Owasso police won't identify officer being investigated for excessive force or release lapel camera video until query completed

Owasso officials say they won't identify a police officer accused of using excessive force or release lapel camera video of the incident until the investigation is completed, the Owasso Reporter said Thursday.

The 27-year-old suspect has been paid $1,500 to settle the June 30 incident, City Attorney Julie Lombardi confirmed for the newspaper.

The officer had been placed on paid leave during the investigation, Police Chief Dan Yancey told the newspaper.

A 2009 attorney general opinion permits public agencies to keep secret the names of employees placed on paid administrative leave if, under the agency’s personnel policies, that action doesn’t constitute "a 'final' or 'disciplinary' action, nor a 'final disciplinary action resulting in loss of pay, suspension, demotion, or termination.'" (2009 OK AG 33, ¶ 29)

But once the investigation is complete and a final disciplinary action occurs, "the record(s) indicating that action must be available for public inspection and copying," then-Attorney General Drew Edmondson said.

The Oklahoma Open Records Act makes public "any final disciplinary action resulting in loss of pay, suspension, demotion of position, or termination." (OKLA. STAT. tit. 51, § 24.A(7))

Edmondson noted that the Open Records Act does not mention "administrative leave with pay."

That oversight should be rectified by state legislators next year.

In Owasso, the police department released the incident report, which identifies three officers as having been directly involved in arresting the 27-year-old suspect.

The Owasso Reporter argued that city officials had a responsibility to differentiate between officers under investigation and those who are not.

The newspaper said Yancy indicated that images of the use of force being investigated were captured on at least one of the department’s new lapel cameras that patrol officers wear.

A relative of the suspect complained to the newspaper about the circumstances under which the $1,500 settlement was reached.

Representatives for the city approached the suspect while he was locked up in the Tulsa County Jail on Oct. 9 in connection with a 2010 misdemeanor case that prosecutors are seeking to have a deferred sentence arrangement set aside and punishment imposed, the newspaper was told.

The suspect was without benefit of a lawyer when city officials offered him money to pay court costs and medical expenses in return for signing a release not to sue the city over excessive force used on June 30, the newspaper was told.


Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications


The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.

Owasso officials provide newspaper with 'draft' documents given to council members for 'working sessions' but mum on whether same records will be provided to general public prior to such meetings

Owasso city officials agreed this month to provide the Owasso Reporter with staff memoranda and other documents that form the basis for policy discussions by the City Council during its monthly "work sessions," the newspaper reported today.

But city officials haven't said if the same records will be made available to the rest of the public.

The city posts on its website supporting documentation for actions to be taken in two of its monthly meetings. But it has withheld and treated as confidential the staff memos and other documents that form the basis for council discussions and debates during monthly "work sessions," the newspaper said.

Earlier this month, City Manager Rodney Ray agreed to release those "work session" documents to the newspaper but disagreed that the Open Records Act requires him to do so. He told the newspaper:

While our staff opinion certainly disagrees with your expert’s opinion and we could, for debate purposes, quote other experts with experience in the Oklahoma Open Records Act, there seems to be no real reason to do so.

Our staff’s record, and our agenda packets have been a model for cities in the state because of their transparency and openness to citizens and media. Based on that culture and our desire to go beyond the norm (when possible) when making our governmental actions transparent I have determined that, with some obvious restrictions allowed by statute relating to litigation and personnel, we will begin including the background memoranda in the packet that is provided you for these sessions.

The newspaper had received documents for the council's September "work session" from a source. Among the documents were memos from the city’s administrative staff to the council that were labeled “Recommendation." Some documents were also labeled "draft," the newspaper said.

But the Oklahoma Open Records Act contains no provision allowing governments to keep "drafts" secret from the public.

Instead, the statute permits governments to keep confidential "personal notes and personally created materials . . . prepared as an aid to memory or research leading to the adoption of a public policy or the implementation of a public project."

The exemption applies only prior to the official "taking action, including making a recommendation or issuing a report." (OKLA. STAT. tit. 51, § 24A.9)

Just two years ago, the Oklahoma Court of Civil Appeals told Lawton officials to release a "draft" audit conducted by an independent auditor. (Int'l Union of Police Assoc. v. City of Lawton, 2009 OK CIV APP 85)

"In determining whether material is a 'record' subject to inspection under the ORA, or exempted 'personally created materials,' we 'focus on the totality of the circumstances surrounding the creation, maintenance, and use of the document,' regardless of the 'status' of a document as 'preliminary' or 'final,'" the court said. (Id. ¶ 18)

At the time the police union had requested the audit, the court noted, "City clearly possessed and controlled a preliminary draft of the requested Audit Report." (Id. ¶ 19)

"And most importantly," the court said, "it is also undisputed that City used the draft Audit Report as the basis for testimony and evidence offered at the arbitration hearing, and the fact that City withdrew its exhibits based on the draft Audit Report does not alter the fact that City used the draft Audit Report to prepare for and oppose Union's requested arbitration. (Id.)

"Given ... City's use of the draft Audit Report to prepare for and oppose Union's demanded arbitration, we hold Union was entitled to inspect and copy the draft Audit Report under the ORA," the court concluded. (Id. ¶ 20)

In reaching its decision, the court also took into account 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." (Id. ¶ 13, quoting OKLA. STAT. tit 51, § 24A.2)

Given that purpose, the Oklahoma Supreme Court said in 1986, "Disclosure is to be favored over a finding of exemption" when public bodies and courts rule on records requests. (Tulsa Tribune Co. v. Okla. Horse Racing Comm’n, 1986 OK 24, ¶ 22)

And in 2004, a state trial judge held that information packets distributed along with agendas to members of public bodies are open to the public under the Open Records Act.

“Only those portions deemed confidential pursuant to Statute may be redacted,” said Delaware County District Judge Barry Denney.

Bottom line for Owasso residents: Their city officials have no justification under the state Open Records Act for categorically denying access to documents given to council members.

In an email Oct. 14, the Owasso Reporter asked City Attorney Julie Lombardi if the work session documents would be made available to the general public, too. The newspaper said she had not replied as of its press time for today's edition.

The answer should be yes.

And the City Council members should tell the city manager and attorney to place the "work session" documents online so that the general public has access.

Oklahomans are entitled to know beforehand the details of what a public body will be considering. Otherwise, they has no opportunity to provide input to those elected or appointed officials prior to a decision being made.

If you are an Owasso resident and request the agenda packet for the council's Nov. 8 work session, please let me know what response you get. In the meantime, you can reach your councilman via email on the city website.

Let him know how important an open city government is to you.


Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications


The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.

AG's Office to Public Officials: Be specific on agendas; Ignorance of Open Meeting, Open Records laws not an excuse

Agendas for meetings of public bodies must be specific, the Attorney General's Office emphasized to government officials this week.

"Don't try to hide the ball," warned Janis Preslar, chief of the Attorney General's Office's general counsel office.

Preslar spoke on the state Open Meeting Act during a Monday seminar in Muskogee. The next workshop on the state freedom of information laws will be Nov. 7 at the Metro Technology Center in Oklahoma City.

The seminars are free and open to the public. Registration is not required. The workshops are sponsored by Attorney General Scott Pruitt, the Oklahoma Press Association, Oklahoma Newspaper Foundation and FOI Oklahoma Inc.

Read Tulsa World and Muskogee Phoenix coverage of Monday's seminar.

Preslar said the Attorney General's Office reviews the agendas of all state agencies it advises and urged public bodies to have their agendas reviewed by their attorneys before posting.

Preslar also warned that ignorance of the law doesn't make a violation non-willful.

"Ignorance is not an excuse," she said. "Willful violation can mean that you didn't know about a law that you should have."

Pruitt should remind district attorneys of that.


Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications


The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.

Answer: Meeting minutes should include votes of individual members on agenda items

Meeting minutes should include how each member of the public body voted on each agenda item, a city attorney said.

"The argument, of course, is that the vote is the action of the Council/Board, and the actions must be shown in the minutes," said Michael Vanderburg, city attorney for Oklmulgee.

Whether meeting minutes must include such votes became an issue last week. The Oklahoma Daily reported that meeting minutes of the OU Undergraduate Student Congress don't include votes. Instead, the voting record is kept as a separate document under the "resources" tab of the student government website.

The Open Meeting Act requires written minutes that are an "official summary of the proceedings showing clearly those members present and absent, all matters considered by the public body, and all actions taken by such public body." (OKLA. STAT. tit. 25, § 312(A))

In a provision separate from the minutes requirement, the Open Meeting Act states, "In all meetings of public bodies, the vote of each member must be publicly cast and recorded." (OKLA. STAT. tit. 25, § 305)

Given those provisions, must the minutes include each member's vote on agenda items?

Vanderburg said they must.

"The fact that at a separate place in the law, the vote is separately required to be publicly cast and recorded, does not support a separate record, but merely states the manner of the vote," said Vanderburg, a former city attorney for Broken Arrow.

"This is the first instance I have heard of where the votes were not included in the minutes, but instead recorded elsewhere," said the longtime member of FOI Oklahoma.

Another FOI Oklahoma member noted that the meeting minutes section of Robert's Rules of Order states, "When the voting is by roll call, the names of those voting on each side and those answering 'Present' should be entered." (RONR (10th ed.), p. 453, l. 33-35).

("[W]hen the voting is by yeas and nays [the chairman] should enter a list of the names of those voting on each side." (Public Domain Edition of Robert's Rules, Art. 10, sec. 60))

"One could make the argument then, if RONR is the adopted authority, that not including the roll call vote in the minutes would make them out of compliance," said Tyson Wynn, publisher and executive editor of WelchOk.com.

(While Robert's Rules of Order would apply when the Open Meeting Act is silent, it cannot trump the statute's requirements or prohibitions. "The statute makes no mention of Robert's Rules of Order and is not controlled thereby," the Oklahoma Supreme Court noted in 1975. (Oldham v. Drummond Bd. of Educ., 1975 OK 147, ¶ 7))

Recording the votes in the minutes seems to be "just common sense," said Korina Dove, an FOI Oklahoma member and editor of the Cherokee Messenger & Republican.

"Isn't the main purpose of keeping minutes so that the public can know the business - and the outcome of the business - on the agenda?" Dove noted.

For the public to make the most of the minutes, the votes should be included.

Joey Senat, Ph.D.
OSU School of Media & Strategic Communications


The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.

Question: Does Open Meeting Act require that votes be recorded in meeting minutes?

Minutes of the OU Undergraduate Student Congress meeting Sept. 27 failed to include how each member voted, which members were present or absent, and whether two emergency allocations to student organizations were passed, The Oklahoma Daily reported today.

The Open Meeting Act requires written minutes that are an "official summary of the proceedings showing clearly those members present and absent, all matters considered by the public body, and all actions taken by such public body." (OKLA. STAT. tit. 25, § 312(A))

So the Undergraduate Student Congress minutes apparently violate the statute by not including the roll call, all the matters considered and all the actions taken.

But are the minutes required to include each member's vote on agenda items?

In a provision separate from the minutes requirement, the Open Meeting Act says, "In all meetings of public bodies, the vote of each member must be publicly cast and recorded." (OKLA. STAT. tit. 25, § 305)

The OU Undergraduate Student Congress keeps its voting record as a separate document under the "resources" tab of its website.

That's not the most intuitive location for such important information. The voting record also is only for the most recent session for which minutes have been approved. In contrast, minutes are available for meetings since April.

So the voting record is not provided online in a way that most effectively helps students hold their individual student representatives accountable.

But does keeping a voting record separate from the meeting minutes satisfy the Open Meeting Act's requirement?

In 1975, the state Supreme Court emphasized that public bodies have to use a roll call vote and record the vote for each member. (Oldham v. Drummond Bd. of Educ., 1975 OK 147, ¶ 7)

The court was interpreting the 1971 predecessor to the current Open Meeting Act, but the statutory language was essentially the same. The previous version required that "any vote or action thereon must be taken in public meeting with the vote of each member publicly cast and recorded."

The "language is clear," the court said. "The vote of each member must be recorded."

The court rejected a school board's practice of voting "by a show of hands unless a roll call was asked." The votes of each member were not recorded.

The court pointed out that no record of the each member's vote was included in the minutes. But it didn't say the votes must be recorded in the minutes -- only that votes must be recorded.

For practical purposes, it would make sense to include the votes in the minutes. For the public to make the most of the minutes, the votes should be included.

The Open Meeting Act requires that minutes be an "official summary of the proceedings." And because the Open Meeting Act was "enacted for the public’s benefit," the Oklahoma Supreme Court said in 1981, the statute "is to be construed liberally in favor of the public." (Int’l Ass’n of Firefighters v. Thorpe, 1981 OK 95, ¶ 7)

Does that mean votes must be recorded in the minutes? Or would a separate record of votes be sufficient under the statute?

Seems like another gray area that state legislators should address.

But if you have the answer, please tell me. I'd be happy to pass it along here.


Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications


The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.

Oklahoma City School Board approves charter school agreement kept secret from public

Oklahoma City taxpayers didn't get to know the details of a charter school operating agreement for a new $11 million downtown elementary school until it was approved by the school board Monday night.

School district attorney Stephanie Mather and Board Chairperson Angela Monson had refused to release a copy to The Oklahoman on Friday even though the document had been given to school board members.

On Monday night, the board apparently approved the unprecedented agreement as it was recommended. Only then was a copy released to the public.

Mather and Monson claimed the agreement was a "working document" exempted from the Open Records Act.

But as I explained on this blog Saturday, that statute has no exemption for "working documents" or "drafts."

Instead, the statute permits governments to keep confidential "personal notes and personally created materials . . . prepared as an aid to memory or research leading to the adoption of a public policy or the implementation of a public project."

The exemption applies only prior to the official "taking action, including making a recommendation or issuing a report." (OKLA. STAT. tit. 51, § 24A.9)

In 2004, a state trial judge ruled that information packets distributed along with agendas to members of a city council were open to the public under the Open Records Act.

"The pre-meeting packets are public records and the City cannot consider the entire packet exempt from disclosure under the Oklahoma Open Records Act," said Delaware County District Judge Barry Denney. "Only those portions deemed confidential pursuant to Statute may be redacted." (Shero v. City of Grove, No. CV-2004-57 (Delaware Co. Dist. Court) (Apr. 8, 2004))

In 2009, the Oklahoma Court of Civil Appeals held that a "draft" audit conducted by an independent auditor was not exempted under the Open Records Act. (Int'l Union of Police Assoc. v. City of Lawton, 2009 OK CIV APP 85)

"In determining whether material is a 'record' subject to inspection under the ORA, or exempted 'personally created materials,' we 'focus on the totality of the circumstances surrounding the creation, maintenance, and use of the document,' regardless of the 'status' of a document as 'preliminary' or 'final,'" the court said. (Id. ¶ 18)

At the time the police union had requested the audit, the court noted, "City clearly possessed and controlled a preliminary draft of the requested Audit Report." (Id. ¶ 19)

"And most importantly," the court said, "it is also undisputed that City used the draft Audit Report as the basis for testimony and evidence offered at the arbitration hearing, and the fact that City withdrew its exhibits based on the draft Audit Report does not alter the fact that City used the draft Audit Report to prepare for and oppose Union's requested arbitration. (Id.)

"Given ... City's use of the draft Audit Report to prepare for and oppose Union's demanded arbitration, we hold Union was entitled to inspect and copy the draft Audit Report under the ORA," the court concluded. (Id. ¶ 20)

If Lawton city officials couldn't claim a "draft" exemption for an outside audit, then Oklahoma City school officials certainly weren't entitled to hide a document sent to the school board for a vote of approval.


Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications


The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.

OKC public school officials refuse to release charter school agreement prior to school board vote Monday night

Oklahoma City school officials kept secret Friday the details of a proposed operating agreement between the district and a charter school group for a new $11 million downtown elementary school paid for with tax dollars.

School board members have the agreement in hand, but district officials refused to share it with the public until after the board's scheduled vote Monday night.

"It's a working paper going to be brought before the board for possible discussion and action," the district's legal counsel told The Oklahoman on Friday.

"We understand under the Open Records Act that until a document is finalized that working papers ... are not open records," Stephanie Mather told the newspaper. "They are not even records yet."

Wrong.

The Oklahoma Open Records Act contains no provision for "working documents" or "drafts."

Instead, the statute permits governments to keep confidential "personal notes and personally created materials . . . prepared as an aid to memory or research leading to the adoption of a public policy or the implementation of a public project."

The exemption applies only prior to the official "taking action, including making a recommendation or issuing a report." (OKLA. STAT. tit. 51, § 24A.9)

Just two years ago, the Oklahoma Court of Civil Appeals told Lawton officials to release a "draft" audit conducted by an independent auditor. (Int'l Union of Police Assoc. v. City of Lawton, 2009 OK CIV APP 85)

"In determining whether material is a 'record' subject to inspection under the ORA, or exempted 'personally created materials,' we 'focus on the totality of the circumstances surrounding the creation, maintenance, and use of the document,' regardless of the 'status' of a document as 'preliminary' or 'final,'" the court said. (Id. ¶ 18)

At the time the police union had requested the audit, the court noted, "City clearly possessed and controlled a preliminary draft of the requested Audit Report." (Id. ¶ 19)

"And most importantly," the court said, "it is also undisputed that City used the draft Audit Report as the basis for testimony and evidence offered at the arbitration hearing, and the fact that City withdrew its exhibits based on the draft Audit Report does not alter the fact that City used the draft Audit Report to prepare for and oppose Union's requested arbitration. (Id.)

"Given ... City's use of the draft Audit Report to prepare for and oppose Union's demanded arbitration, we hold Union was entitled to inspect and copy the draft Audit Report under the ORA," the court concluded. (Id. ¶ 20)

In Oklahoma City, the agreement between the public school district and the group of downtown business owners has been given to the eight school board members for their consideration and possible action during their regular meeting Monday.

Using the court's reasoning, that agreement should be open to the public now, not after the school board votes on it.

If Lawton officials couldn't claim a "draft" exemption for an outside audit, then Oklahoma City school officials certainly can't use that exemption to hide a document sent to the school board for a vote of approval.

In coming to its 2009 decision, the court also took into account 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." (Id. ¶ 13, quoting OKLA. STAT. tit 51, § 24A.2)

Given that purpose, "disclosure is to be favored over a finding of exemption" when public bodies and courts rule on records requests, the Oklahoma Supreme Court said in 1986. (Tulsa Tribune Co. v. Okla. Horse Racing Comm’n, 1986 OK 24, ¶ 22)

But School Board Chairperson Angela Monson refused to give a copy of the agreement to The Oklahoman, calling it a working document.

Yet, Monson told the newspaper: "This is not a secret. This is not a secret document."

Wrong. It is a secret document if you don't let the public read until after you've voted on it.

Monson told the newspaper that the agreement itself expressly states that the two groups make any public announcements jointly.

Fine. The school board and charter school group may make all the joint announcements they want.

But the school district may not use that as a justification for hiding documents from Oklahoma City taxpayers. The school board's contracts and policies may not trump our state's Open Records Act. A school district may not simply write out of existence the public's right to know.

Given the reasoning by Monson and Mather, no document being considered by a public body would be available to the taxpayers until after the vote.

Providing access only to the agreement as approved by the school board is not enough. As the Court of Civil Appeals noted in 2009, the "draft" of a document "may or may not be the same as the final" version. (Id. ¶ 10)

Oklahomans are entitled to know beforehand the details of what a government body will be considering. Otherwise, the public has no opportunity to provide input to those elected officials prior to the decision being made.

Violating the Open Records Act is a misdemeanor punishable by up to one year in jail and a $500 fine.

The school district's refusal to provide the agreement is such an outrageous, willful violation of the Open Records Act as to warrant criminal prosecution.

And Mather's "advice" so clearly contradicts the Open Records law that it warrants an Oklahoma Bar Association complaint being filed against her.

Otherwise, these government officials will continue to flout our state laws intended to ensure they operate transparently.


Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications


The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.