Sunday, March 20, 2011
State auditor endorses idea of creating agency to help Oklahomans when public officials violate open government laws
State Auditor Gary Jones recently endorsed the idea of empowering a state agency to help Oklahomans when state and local officials wrongly refuse access to government records or disobey the Open Meeting Act.
"I think that's something we ought to do. Perhaps that's something we can do in this office," Jones told FOI Oklahoma's fourth annual Sunshine Week Conference on March 12.
The Republican, who was elected in November, said he would "talk to folks" about that possibility.
Jones' impromptu comments came after listening to the conference's keynote speaker, Robert J. "Bob" Freeman, describe the operations of the New York State Committee on Open Government.
The committee was the nation's first state agency created by statute to help residents with open government problems. Freeman was legal counsel for the committee at its inception in 1974 and became its executive director in 1976.
Freeman said such an agency must have political protection so that it can speak the truth about the law regardless of who asks the question.
"If a day goes by and I haven't upset someone in government, then I didn't go to work," he said.
Freeman and the committee are responsible for overseeing the implementation of New York's open government laws and administering its Personal Privacy Protection Law. Freeman has written more than 24,000 advisory opinions on behalf of the committee at the request of government officials, the public and the news media. He also has provided several thousand oral opinions by telephone.
Freeman emphasized that anyone can ask the committee for an opinion. In contrast, only legislators, state officials and district attorneys may ask the Oklahoma attorney general for an opinion related to the Open Records and Meeting laws. (OKLA. STAT. tit. 74, § 18b (A)(5))
In New York, the state attorney general sends open government questions to Freeman and the committee rather than offering opinions. Freeman said he considers elected officials "inherently untrustworthy" but also emphasized it doesn't sense for the attorney general to handle FOI issues because that office must represent state agencies in court.
The New York State Committee on Open Government is part of the N.Y. Department of State. Its staff consists of only Freeman and one other person.
"We're cheap and easy," Freeman said. "We're the smallest government agency that actually does something."
He said that for such an agency to be successful, it must develop a reputation for being an expert and for being impartial regardless of political affiliations.
"We don't favor Democrats or Republicans," said Freeman, a registered independent. "We write opinions and pick up the phone simply because it rings."
Freeman said he also uses the political clout of the news media, especially the state's smaller newspapers, to keep politicians from interfering with the committee's work.
While Freeman's opinions are only advisory, he said courts typically agree with them when the issues go to court.
Being an advisory agency helps resolve problems "on the spot." In contrast, he noted, the Connecticut Freedom of Information Commission has the authority to order disclosure but the process can take months and then the agency can appeal.
Freeman emphasized that a law degree is not needed to understand open government laws.
"These laws are just not that difficult to understand," he said "If you can read, and understand, and learn, there's nothing special about being a lawyer."
Freeman criticized government attorneys whose advice to public bodies and agencies contradicts the actual open government laws.
"They are giving their boards the answers they think the board wants to hear," he said.
Freeman also explained why jail time and fines aren't effective deterrents to open government violations. "Judges and district attorneys don't put their friends in jail. It's just that simple," he said.
But under New York law, courts can order training by Freeman for the public officials who have violated the state's open government laws.
"In reality, it's much more effective," said Freeman, noting that the training occurs in a well-publicized public meeting.
Freeman urged Oklahomans who believe they have been wrongly denied access to government records or who believe a public body has violated the Open Meeting Act to tell local reporters.
"By shedding light on the situation, good things start to happen," he said.
Use the Rolling Stone principle, Freeman said. "You can't always get what you want, but if you try, you might get what you need."
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.