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Jet's attorney agrees that the town is overcharging for some copies of records.
The small town in Alfalfa County charges 50 cents for each page larger than 8 1/2 by 11 inches, the FOI Oklahoma Blog reported a week ago.
But under the state Open Records Act, the town may not charge more than 25 cents per page for uncertified paper documents 8 1/2 by 14 inches or smaller. (OKLA. STAT. tit. 51, § 24A.5(3))
In an email today to Fox 25 reporter Phil Cross, town attorney E. W. "Bill" Shaw agreed that "the charges were not in compliance with the statute."
Shaw said the charges "will be formally changed at the next board meeting."
Shaw didn't indicate how many people the town has overcharged for copies and whether those people be reimbursed the overcharge.
However, the Enid attorney did seem defensive because of Cross' request for the town's contract with Shaw.
"I am not sure of what your purpose is in these records," wrote Shaw, adding:
As I mentioned to you earlier, the town of Jet is a rural community with a listed population of 204 citizens, mostly elderly. The Town's financial resources are very limited and the work required the town clerk to keep up with all the government imposed tasks is very demanding. The board members receive minimal pay for a great deal of time dealing with the maintenance of the streets, cleaning trash, dealing with abandoned buildings, etc. I try to assist the town when requested. Because I am aware of the limited resources of the town I only charge half of my hourly rate for my services.
Of course, town officials could save themselves some of those fees if they would respond directly to questions from reporters and residents rather than having Shaw run interference for them.
Shaw's email also thanked Cross for sending citations for two state attorney general opinions requiring that records be made available in electronic format if kept that way.
In emails with resident Paul Blackledge, Shaw had defended town officials' refusal to provide meeting agendas as email attachments because doing so isn't required by the Open Records Act. True, it isn't.
But Shaw also said records don't have to be released in electronic format. Wrong, they must be.
Shaw had told Cross that he didn't know about the following two attorney general opinions:
- 1999 OK AG 55, ¶ 23: Because "the Open Records Act does not distinguish between the form of public records," records must be provided "in whatever form they exist."
- 2006 OK AG 35, ¶ 19: "There are no Oklahoma statutes or laws generally requiring public agencies or public officers to keep records in an electronic format. However, if a governmental agency elects to keep its records in electronic format we believe that such agency must provide records under the Act in this format if so requested."
A town attorney -- even one charging half-price -- should have known about these formal written opinions.
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.
The state Board of Education last week cut several programs even though its meeting agenda noted only "discussion and possible action on the FY2012 Common Education Budget Work Program."
"Some board members complained during the meeting that they only received the budget details the evening before the meeting and they wanted more time to look over the numbers," reported Oklahoma Watchdog Editor Peter J. Rudy.
"The budget details were not posted online and the press did not receive copies until just before the meeting started," Rudy noted. "It could be argued that ... stakeholders (like National Board Certified teachers) had no idea looking at the agenda that their programs were being eliminated."
The board cut funding for National Board Certified teacher bonuses, adult education, charter school startup grants, new robotics programs, and middle school mathematics laboratories, The Oklahoman had reported.
The newspaper had also noted that board members complained about not having enough time to study the budget prior to being asked to vote on it.
"I just think it's kind of unfair to give it to us the day before and want us to try to vote on it," board member Gayle Miles-Scott said. "Could we not have a special meeting?"
State schools Superintendent Janet Barresi told Rudy that staff had worked on the budget "up to the 11th hour."
"We had to make a decision yesterday that we had to move forward with this," she said.
(Watch Barresi's reaction in the video as Rudy explains that the Oklahoma County District Attorney's Office is investigating the Oklahoma Human Services Commission for a possible Open Meeting Act violation because its agenda's budget item did not specify increased co-payments for clients who receive child-care benefits and reduced income eligibility.)
So it literally wasn't possible to call a special meeting to give board members and the public time to mull over the budget details? And to include those important details on the agenda for a special meeting?
The Open Meeting Act says each agenda "shall identify all items of business to be transacted by a public body at a meeting." (OKLA. STAT. tit. 25, § 311(B)(1))
The state education board's agenda didn't do that. Barresi should have asked for a special meeting so the agenda could specify such important budget cuts. The public and the board members being asked to vote on that budget deserved more time to consider it. The board's vote is not supposed to be a rubber-stamp.
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.
DHS Commissioner George Young Sr. voted to return from an executive session and to adjourn the meeting June 14, according to commission records.
But Young wasn't present for most of the executive session or for the adjournment, the Tulsa World reported today.
The statewide commission overseeing the Oklahoma Department of Human Services is being investigated for apparent Open Meeting Act violations at the meeting.
For example, members of the Oklahoma Commission for Human Services left after the closed executive session on June 14 without a public vote to adjourn.
Oklahoma Watchdog Editor Peter J. Rudy provided information about that apparent violation of the Open Meeting Act to the Oklahoma County district attorney.
Assistant District Attorney Scott Roland says his investigation will likely be finished in about two weeks, the Tulsa World reported today.
Commissioner Steven Dow, who has complained publicly about the lack of openness by the public body, has said a staff person asked each member individually for a vote on whether to adjourn.
DHS spokeswoman Sheree Powell told the Tulsa World that the roll-call vote was taken "in a public area of the room."
That doesn't comply with the Open Meeting Act, which states, "In all meetings of public bodies, the vote of each member must be publicly cast and recorded." (OKLA. STAT. tit. 25, § 305)
Under the commission's procedure, a staff person could collect votes on any measure while members of the public body milled about in a public hallway or lobby.
That defeats the purpose of requiring a public roll-call vote. The public would have no idea who voted which way until the meeting minutes were available.
The commission's haphazard method also makes more likely the kind of mistake that Powell says occurred when votes were recorded for Young. She told the Tulsa World that the recorded votes were a "scrivener's error" and would be corrected in the minutes up for approval at the July 26 meeting.
Rowland's investigation should go beyond whether the commission cast public votes to return from the executive session and subsequently to adjourn.
When the commission approved the DHS budget on June 14, it also increased co-payments made by clients who receive child-care benefits and reduced the income eligibility.
But no mention of that important decision was made on the meeting agenda.
Chairman Richard L. DeVaughn later told the Tulsa World that the commission would add more detail to its agendas if told to by a court or state Attorney General Scott Pruitt.
If Pruitt won't, hopefully Oklahoma County District Attorney David Prater will.
Agendas should be worded in “plain language, directly stating the purpose of the meeting, in order to give the public actual notice. The language used should be simple, direct and comprehensible to a person of ordinary education and intelligence," the Court of Civil Appeals has said. (Haworth v. Havens, 1981 OK CIV APP 56, ¶ 8) (emphasis added)
The purpose of the Open Meeting Act "to encourage and facilitate an informed citizenry's understanding of the governmental processes and governmental problems . . . is defeated if the required notice is deceptively worded or materially obscures the stated purpose of the meeting," the court said.
Any act or omission that "has the effect of actually deceiving or misleading the public regarding the scope of matters to be taken up at the meeting" would be a "willful" violation of the Open Meeting Act, the court said. (Id. ¶ 8)
The commission's June 14 agenda failed to give the public actual notice and materially obscured the scope of matters commissioners would consider.
Rowland also should be investigating Dow's claim that the commission's Budget Committee made decisions when it met secretly.
The commission relies on loopholes in the Open Meeting Act to avoid having the Budget Committee meet publicly and post meeting notices and agendas. No more than four of the commission's nine members are on the Budget Committee. But that avoids the Open Meeting Act's requirements only if the committee has no actual or de facto decision-making power.
But Dow, who said he was barred from the Budget Committee's meetings, said the commmittee "has de facto decision-making authority."
"They did not decide to approve the overall budget, but it did decide the details of that budget," he told the Tulsa World.
Violating the Open Meeting Act is a misdemeanor punishable by up to one year in jail and a $500 fine.
Will DHS commissioners face charges, a stern finger-wagging, or be allowed to go merrily on their way? That will depend on what Rowland says he found and what Prater decides to do based on those findings.
Joey Senat, Ph.D.
OSU Associate Professor
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.
Reactions to the state Supreme Court's ruling that public access to government employees' birth dates and identification numbers would serve no valid public interest but would constitute an unwarranted invasion of privacy.
- Schaad Titus, an attorney for the Tulsa World:
We are very disappointed, as we feel date-of-birth information is a fundamental tool to the media to distinguish one public agency employee from any other person. We respectfully believe the court misapplied the balancing standard and the extreme public interest the press has in accurately distinguishing the public agency employee from any other person such as Jim Smith who committed a crime.
- Joe Worley, Tulsa World executive editor, said the ruling is disappointing because it "makes new law."
With date-of-birth information, the Tulsa World is able to confirm or rule out the identity of people accused of crimes. Without that information about public employees, Oklahomans don't know who is working in the government that they are paying for.
The state of Oklahoma is selling date-of-birth information about public employees but won't release that same information to the public.
- Kelly Dyer Fry, editor of The Oklahoman and vice president of news for OPUBCO Communications Group:
It's not just a question of using dates of birth for identification, but also for misidentification. If average citizens run their names through the sex offender registry, they might be surprised to find someone on the list with the same name. Birth dates can quickly sort out who's who. I respectfully disagree with the court's decision.
- M. Scott Carter, president, Oklahoma Professional Chapter, Society of Professional Journalists:
We are disappointed by this ruling. This ruling suggests that state employees have a greater right to privacy than the average citizen.
We feel this ruling is a setback for transparency efforts within Oklahoma government. On too many occasions, the spirit and strength of the Oklahoma Open Meeting and Open Record Act have been chipped away over concerns about an invasion of privacy.
In their ruling a majority of the court said they “could not fathom an instance where this information could be used by the public to ensure the government is properly performing its function.”
We disagree.
Oklahomans need transparency in their government. Further, being able to use a birth date to correctly identify a state worker – who could be making or enforcing policy that would have a profound impact on residents – is an absolute necessity for both the public and media professionals.
In the future, we hope the Justices of the Oklahoma Supreme Court will consider the vital role the news media plays in ensuring Oklahoma government remains transparent and accessible to the general public.
- Mark Thomas, executive vice president of the Oklahoma Press Association, said the Supreme Court expanded privacy protections for state employees at the expense of transparency in government.
It's ironic that private citizens are required to give our information to the government to vote or drive, but the same information about state employees is off limits. Now government will have everything about us, but we'll have nothing about them.
- Sterling Zearley, executive director of the Oklahoma Public Employees Association:
This is a great victory for OPEA and state employees. The Association followed through on this critical issue all the way to the Supreme Court because we believed state employees, who dedicate their lives to public service, should not have their private information released to the press or other individuals.
OPEA was concerned that an employee’s birth date could be the missing puzzle piece in both financial and health care identity fraud. In addition, the safety of corrections officers, child welfare workers, and other employees who work with the public could be put in jeopardy.
- Randy Terrill, Republican state representative from Moore:
I believe in openness and transparency in government and that any data related to the job performance of an employee should be public record. However, birthdates and personal identification numbers in no way relate to an employee’s performance in an official capacity. The blanket release of personal data simply does not satisfy the test set forth by the court today.
We did try to work with the Oklahoma Press Association and other media entities to craft a reasonable compromise to provide access to state employees’ information under certain circumstances when reasonable suspicion existed, but those efforts were rebuffed. Today, the 'all or nothing' approach they pursued has left them with nothing. It is my hope that they will be less rigid and dogmatic in the future when someone makes a good-faith, reasonable effort to negotiate a compromise.
Public access to government employees' birth dates and worker identification numbers would constitute an unwarranted invasion of privacy, the Oklahoma Supreme Court ruled Tuesday.
(Okla. Pub. Employees Ass’n v. Oklahoma Office of Pers. Mgmt., 2011 OK 68). Opinion begins on Page 14.)
In coming to that conclusion, the seven-justice majority found no value in the public knowing the information but accepted as gospel the claim that access would cause identity theft and other harms.
"The information requested here could result in cases of identity theft and compromise of government computer systems yet bring little, if any, information to public attention which would enlighten Oklahoman citizens as to how their government runs, performs, or spends their tax dollars," they said. (Id. ¶ 3)
"There is simply no instance in which we can fathom how such information would advance the public's interest in assuring that the government is properly performing its function. (Id. ¶ 35)
"The purpose of openness in government is not fostered by disclosure of information about private citizens that is accumulated in various government files but reveals little or nothing about an agency's own conduct. (Id. ¶ 37)
"Rather, government agencies and the courts have a special obligation to protect the public's interest in individual privacy by acknowledging that public records are being harvested for personal information about individuals, contributing to a surge in identify theft, consumer profiling, and the development of a stratified society were individuals are pigeonholed according to the electronic trail they leave of transactions that disclose personal details." (Id.)
The case revolves around which information in a government employee's personnel file may be exempted under the state Open Records Act. A public body may keep confidential those personnel records "where disclosure would constitute a clearly unwarranted invasion of personal privacy such as employee evaluations, payroll deductions, employment applications submitted by persons not hired by the public body, and transcripts from institutions of higher education maintained in the personnel files of certified public school employees." (OKLA. STAT. tit. 51, § 24A.7(A)(2))
In a one-paragraph dissent, Justice Yvonne Kauger, joined by Chief Justice Steven W. Taylor, saw the case as "a matter of statutory construction."
Kauger noted that although the Legislature had amended the personnel exemption three times since 1985, "it had never chosen to include the date of birth."
"If the Legislature desires to do so, it certainly can," Kauger wrote.
A 2009 attorney general had said the birth dates of government employees were presumed to be public information when contained in their personnel files and should be released upon request. Officials could refuse to release the information only if they determined that disclosing the birth date would constitute an “unwarranted invasion of privacy” that outweighed the public interest in disclosure. (2009 OK AG 33, ¶ 11)
Then-Attorney General Drew Edmondson told The Oklahoman:
My [personal] opinion is that an agency is going to have difficulty claiming the exemption as a clearly unwarranted invasion of personal privacy. My view is that the conditions under which birth dates would be confidential would be rare.
Shortly after issuing the 2009 opinion, Edmondson released the birth dates of his employees.
In the opinion, Edmondson said public officials must balance the interests involved, "weighing the public's right of access to the records, which the Legislature has declared is substantial, against the employees' interests in nondisclosure." As part of that balancing,
A public body may determine that the ORA's public policy raises the question, 'How does disclosing an employee's birth date allow citizens to know what the government (or a particular employee) is up to, and whether he or she is properly discharging his or her duties?' If the purpose of the ORA 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,' the operative question is 'how will knowing an employee’s birth date assist citizens in the exercise of that political power?’ (2009 OK AG 33, ¶ 10)
On Tuesday, Justices Tom Colbert, Joseph M. Watt, James R. Winchester, James E. Edmondson, John F. Reif, Douglas Combs and Noma Gurich found that the balance between public interest and employee privacy "must tip in favor of privacy." (2011 OK 68, ¶ 35)
"We determine that when the balancing test is applied to the facts presented, where significant privacy interests are at stake while the public's interest either in employee birth dates or employee identification numbers is minimal, release of birth dates and employee identification numbers of State employees 'would constitute a clearly unwarranted invasion of privacy,'" they said. (Id. ¶ 39)
They gave no weight to the public's interest in knowing the information. (Id. ¶ 35)
"Although state employees' privacy interests may be diminished somewhat by taking a position in an agency subject to public scrutiny, they do not surrender all privacy rights by taking a government employment," the majority said. "However, it is important to note that the policy of public disclosure is purposed to serve the public interest and not to satisfy the public's curiosity. Here, the information sought serves no valid public interest." (Id.)
But open government advocates fear that exempting government employees' birth dates and identification numbers from their personnel files would severely hamper the ability of Oklahomans to know and be fully informed about their government. State law already exempts public employees' Social Security numbers, home addresses and telephone numbers.
By barring access to the birth dates and employee identification numbers, the court has made it virtually impossible for the public to determine if government employees have committed crimes, evaded paying taxes, filed for bankruptcy or made political contributions. The public also will find it virtually impossible to track workers across government jobs.
But the seven justices discounted the ability of the press and public "to identify one state worker from another" as "too 'narrow and limited' on the public interest scale to tip the balance of interests in favor of disclosure." (Id. ¶ 34)
The justices also shrugged off the fact that birth dates are available in other public documents, such as voter registration records.
"The fact that information may be available to the public in some form or from another source does not dissolve the individual's interest in controlling the dissemination of information regarding personal matters," they said. (Id. ¶ 34)
In contrast, Drew Edmondson had publicly said it would be difficult to contend that birth dates are private when they are found in a number of public records.
Instead, the justices placed a great deal of weight on the fear of identity theft, saying:
Since September 11, 2001, the ramifications of identity theft have proven much more grave than previously thought. Identify theft, a huge problem in financial fraud, now has implications for national security.
The growing problem of identify theft is facilitated when birth dates are combined with other personal information. Simply combining the release of a person's age along with other factors may make the individual vulnerable to those targeting a certain age range for scams.
With both a name and a birth date, one can obtain information about: an individual's criminal record; arrest record (which may not include disposition of the charges); driving record; state of origin; political party affiliation; social security number; current and past addresses; civil litigation records; liens; property owned; credit history; financial accounts; and quite possibly, information about an individual's complete medical and military histories; and insurance and investment portfolios. (Id. ¶ 32)
But a data privacy expert speaking at FOI Oklahoma Inc.'s 2010 Sunshine Week conference said keeping birth dates secret won't help protect workers' identities or safety because the information already is available elsewhere.
"What I would tell them is stop trying to shut the barn door after the horses are gone. It's a lack of understanding by policy makers to what an effective countermeasure is to identity theft," said Richard J.H. Varn, chief information officer for the city of San Antonio and executive director of the Coalition for Sensible Public Records Access.
Varn also emphasized that public records are not a source of information for identity thieves. However, exempting the birth dates from public records does create a privacy problem, he said.
When public identifiers are not made public, it is nearly impossible to distinguish among people with the same name. It leads to more false positives and false negatives, Varn told the National Freedom of Information Coalition conference in 2009.
For example, when The Oklahoman compared a state payroll data to the state sex offender registry, the newspaper found 778 state employees who shared first and last names with registered sex offenders.
"Without dates of birth, which are included in the sex offender registry, it is impossible to determine whether these workers may be sex offenders," the newspaper noted.
For years, The Oklahoman and Tulsa World have received birth dates of public employees. In 2010, for example, Oklahoma City Public Schools released birth dates for more than 5,000 district employees in response to The Oklahoman's open records request.
And the state of Oklahoma has made tens of millions of dollars selling personal information, including birth dates and other personal information of all state drivers, The Oklahoman and Tulsa World reported last year.
Where are the incidences of these records being used to steal people's identities?
Instead of relying upon facts, the seven justices emphasized that the Legislature had intended to create "a non-exclusive list of information" whose release would result in an unwarranted invasion of privacy when it created the personnel exemption to the Open Records Act. (Id. ¶ 39)
However, they ignored that legislators had not exempted birth dates when they blocked public access to government employees' Social Security numbers, home addresses and telephone numbers. And for the past two sessions, legislators rejected attempts to add birth dates to the list of exempted information.
The justices, instead, chose to add birth dates to the list themselves. That's called judicial activism: When a court takes the opportunity to solve what it perceives as a social problem rather than relying upon the legislative branch to do so.
In this case, the seven justices see public access to personal information in government records as a social problem. But their decision is based on their subjective fears rather than facts. By adding birth dates to the list of exempted information, they did what the elected representatives of the people had chosen not to do.
To find no valid public interest in access to the government employees' birth dates and identification numbers is nonsensical and insulting to the public's intelligence.
The ruling on Tuesday is a serious blow to the public's ability to act as a watchdog of its government's activities. The court's reasoning is an affront to the public's right to know and be fully informed about its government.
For more background on the case, click here.
Read reactions to the ruling.
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.
Jet officials who pledged to comply with the letter and spirit of the state's open government laws now won't provide meeting agendas and minutes as simple email attachments.
Also, the town's copy fees posted on the wall at City Hall violate the Open Records Act. The town charges 50 cents for each page larger than 8 1/2 by 11 inches, according to the posted fees.
But the town may not charge more than 25 cents per page for uncertified paper documents 8 1/2 by 14 inches or smaller. (OKLA. STAT. tit. 51, § 24A.5(3))
A photo of the town's posted records fees was provided to the FOI Oklahoma Blog by Paul Blackledge, who has chronicled online his attempts to get computerized records from town officials.
Blackledge wants the agendas, as well as minutes, sent to him as email attachments so he can post them on a website he created to make town records available.
"I want to include the agenda with the regular meeting notice that the web site automatically displays a few days ahead of the regular meetings," he said. "This would provide a heads up notice for people away from home or for out of town property owners."
The town doesn't have its own website on which to post the agendas or minutes.
Town attorney E. W. "Bill" Shaw of Mitchell & DeClerck in Enid said the records won't be provided to Blackledge via email because the Open Records Act doesn't require it.
"The state law may permit, but does not require, the Town of Jet to release records by electronic means. If the state law changes to require the release of public records by electronic means, the Board will adopt an appropriate policy for the Town of Jet," Shaw told Blackledge in, ironically, an email.
In another email, Shaw noted that the Open Records Act states, "Except as may be required by other statutes, public bodies do not need to follow any procedures for providing access to public records except those specifically required by the Oklahoma Open Records Act." (OKLA. STAT. tit. 51, § 24A.2)
Of course, that's also the same section that begins with:
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 purpose of this 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.
Shaw is correct that the statute doesn't require records be sent as email attachments. However, Shaw also seems to say the town doesn't have to provide records in an electronic format at all.
"51 O.S. §24A.3 is merely the definition which includes the form of records that may be maintained that are to be produced under the Act. It is not a requirement that records be produced in any particular form," Shaw said in an email.
But a 1999 attorney general opinion said that because "the Open Records Act does not distinguish between the form of public records," records must be provided "in whatever form they exist." (1999 OK AG 55, ¶ 23)
In a 2006 opinion, then-Attorney General Drew Edmondson said public agencies could not refuse to provide existing computer records in that format.
"There are no Oklahoma statutes or laws generally requiring public agencies or public officers to keep records in an electronic format," he noted. "However, if a governmental agency elects to keep its records in electronic format we believe that such agency must provide records under the Act in this format if so requested." (2006 OK AG 35, ¶ 19)
After Paul Blackledge got no where with Shaw, I wrote the following email to Town Board members Jim Blackledge, Carolyn Crossette and Clerk-Treasurer Donna S. Keller, each of whom had signed FOI Oklahoma's Open Government Pledge in April.
Dear Mr. Jim Blackledge, Ms. Carolyn Crossette and Ms. Donna S. Keller:
Paul Blackledge has contacted me about the City of Jet's refusal to supply him with meeting agendas and minutes via e-mail.
While the Open Records Act does not require records be made available via e-mail, the law does clearly require that records be made available in the format in which they exist.
Each of you signed FOI Oklahoma’s Open Government Pledge in which you pledged “to support at every opportunity the public policy of the State of Oklahoma that the people are vested with the inherent right to know and be fully informed about their government so that they can efficiently and intelligently exercise their inherent political power.”
You also pledged that you and the City of Jet would comply “with not only the letter but also the spirit of Oklahoma's Open Meeting and Open Records laws.”
Given your public commitment to open government and the City of Jet’s apparent lack of a website on which to post these documents for easy access by the public, I am asking that meeting agendas and minutes be made available to Paul Blackledge as attachments to e-mail unless doing so is technologically impossible.
If the latter is the case, what obstacles cannot be overcome to provide the requested records via e-mail attachments? For example, are the meeting agendas and minutes created with a typewriter or in a computer format, e.g. a Word document?
Because you yourselves signed the Open Government Pledge, I am asking that you, not someone else, respond to my inquiry.
I look forward to working with you to resolve this issue.
Sincerely,
Joey Senat, Ph.D.
Instead of a response from them, I received the following e-mail from Shaw:
Mr. Senat,
As the attorney for the Town of Jet Oklahoma , I find your recent email to the town very offensive. What do you know about the town of Jet and the operation of the town government. Have you done anything other that listen to the gripes and complaints of the citizens named.
If the parties that you are so eager to support would use just have of the efforts they have expended in support rather that perpetual criticism, much could be accomplished. No citizen has been denied access to appropriate public records. The town is in compliance with the law.
Did you do any investigation before your contact dated May 6th or did you just take the information provided by a few and decide to join in their continuing antagonism of the town board. Your copying of your letter to the newspapers and others makes it clear that your intentions were to embarrass and attempt to pressure the town board with no concern for the town board and the antagonism that it has be subjected to for months from certain citizens who will be satisfied only if things are done their way.
From the tenor and content of your letter I must conclude that FOI Oklahoma really has no concern for truth, the law or responsible government.
Bill Shaw
E. W. "Bill" Shaw
Mitchell DeClerck
202 W. Broadway
Enid, Oklahoma 73701
580-234-5144
580-234-8890 (Facsimile)
My email was copied to Korina Dove, editor of the Cherokee Messenger Republican, because she had given the Open Government Pledge to the candidates for Jet's April election. The email also was copied to FOI Oklahoma President Bryan Dean, President Elect Lindel Hutson and Paul Blackledge.
As for responsible government, Jim Blackledge, Crossette and Keller could go a long way toward meeting that goal and living up to their pledge by using technology to make government more accessible.
Wouldn't cost the town a penny or much time. And it's simple. Use Google Docs to make the agendas and minutes available online. Create a Facebook page for the town to post the links.
If I can figure out these tools, certainly they could. As elected officials, they have an obligation to do so.
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications
The city of Catoosa will release its police department's audio and video recordings, according to court documents.
A Vinita attorney who specializes in drunken-driving cases sued Catoosa and Claremore for the records in May.
A hearing in the Claremore case has been set for Aug. 1.
On Wednesday, however, Catoosa officials agreed that the recordings, "to the extent they exist, are subject to the Open Records Act."
They agreed to provide the records directly to the plaintiff, Josh D. Lee of Ward & Lee, rather than to the district attorney for release.
Lee agreed not to seek criminal sanctions against the city officials, who in turn agreed to pay $3,500 in attorney fees and costs to Lee.
Because Catoosa officials were stubborn and wrong, taxpayers have to pony up $3,500.
What will Claremore taxpayers have to pay?
Claremore officials said in a court filing that the city police patrol cars have video cameras but the videos can't be produced because of significant issues with the Police Department's computer system, according to the Tulsa World.
Sounds like a story by itself.
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.
The Oklahoma Supreme Court has already decided that no personal harm is required for a private person to sue a public body under the Open Meeting Act, say plaintiffs in such a lawsuit against the Bartlesville Redevelopment Trust Authority.
Joel Rabin and Sharon Hurst allege that the BRTA purposefully misled the public about the purpose of its Aug. 11 executive session, the real subject of which was not permitted in an 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.
In an e-mail sent a day earlier, BRTA Downtown Development Director Patrick Treadway told the seven members of the authority:
You will note that the first item on the agenda is an Executive Session which seems to indicate an investigation. There is not an investigation. This is on the agenda to allow Dan to give you information which he believes you need to have for future projects. Dan purposefully provided the language for this agenda item.
Dan is BRTA attorney Dan McMahan of Oklahoma City.
The lawsuit also has uncovered that despite an Open Meeting Act requirement, the BRTA did not keep minutes of its executive sessions. (See Deposition of Patrick Treadway at 21-25 (Dec. 8, 2010)).
On May 4, the BRTA filed a motion arguing that Rabin and Hurst have no right to sue to enforce the Open Meeting Act.
The BRTA pointed to 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)
The BRTA, relying upon that interpretation, contends that because the Open Meeting Act was enacted for the public's benefit, it does not create a special class of protected people who may sue for violations of the statute.
The BRTA also argues that based on the second prong of the test, private individuals may not sue under the Open Meeting Act because the statute is silent regarding such a right.
In a response filed May 31, Rabin and Hurst's attorney pointed to a 2000 ruling in which the Oklahoma Supreme Court said the state Senate could sue a state board over an alleged Open Meeting Act violation. (Okla. State Senate v. State Bd. for Prop. & Casualty Rates, 2000 OK 69)
The state board had argued that the Senate "does not have the requisite 'personal stake' in the outcome [of the meeting at issue] and is therefore not a person 'aggrieved' by the Board's decision." (Id. ¶ 9)
The Senate responded that "a violation of the Open Meeting Act ... is a public injury, so that proof of a direct, and immediate personal consequence to the Senate of the unlawful action, is not a necessary requisite to bringing the action." (Id.)
The Senate also contended that it had standing based on another state statute. The court said that issue was controlled by a broad application of that statute.
The Court then ruled that the Senate had standing, but the Justices did so without explaining why. Was their ruling based on the Senate's contention that an Open Meeting Act violation "is a public injury," or on the Senate's other argument, or equally on both?
Regardless, the attorney for Hurst and Rabin also pointed to 11 other appellate cases in which private citizens or an entity sought relief in civil court because of an alleged violation of the Open Meeting Act.
"Since the OMA's 1977 enactment, the appellate courts have tacitly acknowledged the right to bring a civil cause of action for OMA issue," wrote Jessica E. Rainey of Titus Hillis Reynolds Love Dickman and McCalmon in Tulsa.
Deciding that "the only remedy for a violation of the OMA is a criminal sanction ... would effectively nullify this body of precedential and persuasive Oklahoma court decisions determining OMA issues," she 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.
A wrongly worded McAlester City Council agenda item will be reposted with the correct information and voted on again, the mayor told the McAlester News-Capital.
The newspaper's James Beaty had questioned the validity of the council's original vote last week.
The agenda item was labeled "Consider and act upon change in zoning from R-1B (Single Family Residential) to C-5 (Highway Commercial)."
However, the summary in smaller print explained the item concerned closing streets and alleys, not a rezoning.
Turns out, the incorrect label was a clerical error that simply repeated the label from the previous item on the agenda.
City Attorney Joe Ervin told Beaty the council's approval of the street and alley closings was valid because the summary was correct.
"As long as any element is correct," it doesn’t matter if another part is not, Ervin said.
Beaty contended that Ervin’s interpretation sets a dangerous precedent for future councils.
For example, Beaty wrote, what would then prevent a future council from listing Item 6 as a resolution supporting Flag Day — but then stating in smaller print under an Executive Summary as actually being about a water bill increase?
I agreed with Beaty that Ervin's explanation opens the door to abuses of the Open Meeting Act.
Also, a reasonable legal argument can be made that the City Council should not have approved the incorrect item but instead should have pulled it or tabled it.
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)
Agendas should be worded in “plain language, directly stating the purpose of the meeting, in order to give the public actual notice," the Court of Civil Appeals said. (Haworth v. Havens, 1981 OK CIV APP 56, ¶ 8) (emphasis added)
The court said any act or omission that "has the effect of actually deceiving or misleading the public regarding the scope of matters to be taken up at the meeting" would be a "willful" violation of the Open Meeting Act. (Id. ¶ 8)
Based on those statements, the McAlester City Council shouldn't have voted on the agenda item.
But why should Beaty or I have to make any legal argument? The issue is as much about ethics and the principle of conducting an open government as it is about the letter of the statute.
Why couldn't the City Council just do the right thing without arguing over it?
The Legislature's goal in enacting the Open Meeting Act "was not simply to prevent or punish deliberate violations, but to restore sadly sagging public confidence in government, a goal which is hurt by every noncomplying meeting regardless of whether or not the noncompliance resulted from evil motives," said then-Attorney General Jan Eric Cartwright in 1982. (1982 OK AG 212, ¶ 11)
How does the city attorney's defense of the City Council's action inspire public confidence in McAlester's city government?
Why not just admit there was a mistake and pull the item until it could be corrected for the next meeting's agenda? If it needed to be dealt with before the next regular meeting, they could call a special meeting.
McAlester city officials could take a lesson from the way Muskogee County District Larry Moore handled a similar situation in July 2009. The wrong date had been listed on the agenda for the county commission's regular meeting. Moore refused to allow the commission to conduct the meeting as an "emergency meeting," saying a special meeting could be called without sustaining any financial loss.
"We’re going to follow the law. It’s as simple as that," Moore told the county clerk and commissioners.
My point: Mistakes happen. But make the right choice when they do.
McAlester Mayor Kevin Priddle seems to have gotten the message.
"You don't want to set the precedent about something not being covered at any level of government — whether it's the city, or state or federal," he told Beaty.
Priddle said he will have the item placed on the agenda again to ensure it has been properly posted before the council votes on it.
Now was that so hard?
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.
Public bodies must identify the nature of the claim or investigation on the agenda for an executive session under the Open Meeting Act's attorney-client privilege exemption, the district attorney for the Oklahoma Panhandle recently told a hospital board.
The agenda also must identify by name or position the employee to be discussed under the personnel exemption, said James M. Boring, district attorney for Cimarron, Texas, Beaver and Harper counties.
An agenda must also identify the "potential action [to be] taken as a result of the executive session," said Boring in a June 10 letter to three doctors who filed an Open Meeting Act complaint against the board.
Boring said these required pieces of information were left off a May 24 meeting agenda for the Board of Control overseeing the Memorial Hospital of Texas County in Guymon.
Violating the Open Meeting Act is a misdemeanor punishable by up to one year in the county jail and a fine of up to $500. (OKLA. STAT. tit. 25, § 314)
But Boring said he won't prosecute because these omissions weren't "a willful violation of the OMA by the BOC that would support or justify criminal prosecution."
Boring blamed the violations on the "extremely short notice and time period" that the hospital's CEO had to "prepare, post and file a revised agenda in order for the BOC to be able to address" the issue that required an executive session. (Read The Oklahoman article for an explanation of the conflict over a doctor's suspension.)
"It is also worthy of noting that this complaint is the only complaint ever received by this office against the BOC of MHTC with respect to the OMA," Boring said.
However, May 24 wasn't the first time the board's agenda omitted some or all of the information that Boring said is required to conduct an executive session.
Eleven of the board's previous 15 agendas since Nov. 24, 2009, lacked the necessary information for its closed-door sessions. (Read the agendas for Jan. 25, 2011; Dec. 20, 2010; Sept. 28, 2010; Aug. 24, 2010; May 25, 2010; April 27, 2010; March 30, 2010; Feb. 23, 2010; Feb. 2, 2010; Dec. 22, 2009; and Nov. 24, 2009.)
So, a lack of time doesn't seem to have been the cause of the violations.
Perhaps the lack of complaints is because the public attending the meetings didn't know the law.
That's not an excuse for the board. As Boring pointed out, the hospital's CEO is not responsible for the Open Meeting Act violations even though he puts together the agenda.
"He is not a member of the BOC," said Boring. "The provisions of the OMA impose obligations upon the board of a public body."
The board members are Chairman Wayne Manning, Vice Chairman Dallas Mayer, Secretary/Treasurer Jim Webster, John Nye, John Board, Mary Beth Ebersole and Kelly McMurry.
Why don't they know the law? Boring's conclusions and the law he relied upon regarding what the statute requires are decades old. The Act 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))
A 1997 attorney general opinion says agenda items for an executive session under the personnel exemption must include either the employee's name or job title if it "is so unique as to allow adequate identification." (1997 OK AG 61, ¶ 5)
The reasoning in that opinion and the statute's language also make clear that a specific item of business must be listed under the exemption for attorney-client privilege.
Boring agreed, saying,
It is my opinion that the agenda item to consider an executive session must identify either the position or the individual who is the subject of the discussion or the nature of the investigation or claim to be discussed in the agenda that would apprise the public of the matters to be addressed in the executive session.
So what is required for a violation to be prosecuted?
Boring explained that his "office is not authorized to file criminal actions against anyone on its own initiative."
"My office files criminal actions based upon the receipt of an 'affidavit of arrest' or an 'affidavit for issuance of an arrest warrant' from a law enforcement officer," he said.
Boring said his office may "receive and gather information relating to allegations of criminal activity, especially when such activity relates to actions taken by public bodies."
"Subject to obtaining relevant facts that may indicate criminal action has occurred, this office may then submit the information to the appropriate law enforcement agency for formal investigation," he said.
Boring said it's "not unusual" for his office "to receive complaints relating to violations of the OMA." His office then attempts to obtain all the pertinent information and determines if the Open Meeting Act has been violated, he said.
"If we find a violation, we must then consider if such a violation could be deemed a 'willful violation' of the OMA before referral is made to law enforcement," Boring said.
He noted that in 1984, the state Supreme Court said that for the purposes of the Open Meeting Act: Willfulness does not require a showing of bad faith, malice, or wantonness, but rather, encompasses conscious, purposeful violations of the law or blatant or deliberate disregard of the law by those who know, or should know the requirements of the Act. (Rogers v. Excise Bd. of Greer County, 1984 OK 95,¶ 14)
He also noted that in the same opinion, the court said, "Notice of meetings of public bodies which are deceptively vague and likely to mislead constitute a willful violation." (Id.)
Boring said that in reading the board's May 24 agenda, "It is not possible to say that it would be comprehensible to a person of ordinary intelligence what matters were proposed to be discussed in the executive session and what action, if any, was contemplated to be taken on the matters to be discussed in the executive session.
"The duty to specify on the agenda plainly and directly in language comprehensible to a person of ordinary intelligence the purpose of the executive session proposed ... was not satisfied," Boring said. "The notice provided to the public in ... the revised agenda fails to satisfy the requirements of minimum notice of the contemplated action that would be taken following the executive session."
So why isn't Boring forwarding the violations to a law enforcement agency for formal investigation and then prosecution? He explained:
It does not appear to me that there is any basis whatsoever to assert, much less establish and prove beyond a reasonable doubt in a criminal prosecution, that the BOC had any intention of acting in bad faith or with malice or wantonness to circumvent the provisions of the OMA.
There is absolutely nothing in the record that would indicate that any of the obvious hostility between the medical staff and the CEO, and perhaps any feelings the CEO might have toward members of the medical staff, were, should, or could be imputed to the individual members of the BOC.
Further, I can not conclude and certainly do not feel the facts would support a finding beyond a reasonable doubt that the actions of the BOC were taken in conscious, purposeful, blatant, or deliberate disregard of the OMA.
In addition, I do not believe or find any facts that would legitimately support a proposition that there was any intention on the part of the BOC to be deceptively vague or to mislead the public about the nature of the matters to be addressed in the executive session.
I conclude and find there was not a willful violation of the OMA by the BOC that would support or justify criminal prosecution of the BOC of MHTC.
What a steaming pile of buffalo chips.
Boring said the OMA puts the obligation on the public body, but then he excused them for being ignorant of a law that's nearly 35 years old. He's doing exactly what our Court of Civil Appeals in 1981 warned against:
If willful is narrowly interpreted, if actions taken in violation of the Act could not be set aside unless done in bad faith, maliciously, obstinately, with a premeditated evil design and intent to do wrong, then the public would be left helpless to enforce the Act most of the time and public bodies could go merrily along, in good faith, ignoring the Act.
Instead of prosecuting the Open Meeting Act violations, Boring lambasted the three doctors who filed the complaint with his office, saying:
It is the policy of this office that, to the extent possible, we will avoid being drawn into political disagreements associated with municipal and county entities, including the functioning of various boards established under municipal or county authority. This office is not willing to permit the power of the office through a threat of criminal prosecution to be used as the arbiter of such disagreements.
The complaint received by this office is laden with indications of it being instigated as the result of an internal or political disagreement or dispute between certain members of the medical staff and the CEO of MHTC.
Boring said he is relatively sure that if the board had upheld the doctor's suspension by the three doctors, they would not have filed the complaint. He doesn't explain why that should affect his decision on whether the board willfully violated the Open Meeting Act. But Boring did add:
This matter has consumed almost four full days of my time in order to sort through and determine the actual facts as well as doing the necessary legal research and drafting of this response. These four days represent four additional days of time that other criminal matters and county business requiring my attention have been placed on hold. That means victims are waiting, defendants are waiting, judges are waiting, attorneys are waiting, and county officers are waiting while I have been dealing with this complaint.
That's all he did for those four days? So much for multi-tasking. And if it's "not unusual" for Boring's office to receive Open Meeting Act complaints, shouldn't he already know the law? This is another example of why the public should be able to go to someone at the state level who specializes in open government law.
In the meantime, Boring has provided some insight into the difficulty of getting district attorneys to treat this form of public corruption seriously.
P.S. The board's agendas also routinely list items of business under "New Business." Boring should explain to the board that the Open Meeting Act defines "new business" as "any matter not known about or which could not have been reasonably foreseen prior to the time of posting." Nothing should be listed on the agenda under "new business." (OKLA. STAT. tit. 25, § 311(A)(9))
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.
Seems like the Budget Committee for the Oklahoma Commission for Human Services is violating the Open Meeting Act, based on what one commissioner told the Tulsa World.
Steven Dow also said that when the commission approved the Department of Human Services budget Tuesday, it also increased co-payments made by clients who receive child-care benefits and reduced the income eligibility.
An important decision. But no mention of it was made on the meeting agenda Tuesday.
Chairman Richard L. DeVaughn told the newspaper in a release that the commission would add more detail to its agendas if told to by a court or state Attorney General Scott Pruitt.
In other words, until Pruitt or a court tells DeVaughn to be more transparent, the public can go to hell.
(DeVaughn, an Enid dentist, was appointed chairman by then-Gov. Brad Henry in December 2004. His nine-year term on the commission ends in August 2012.)
Dear Mr. Pruitt, please tell DeVaughn to add more details to the agendas so that the public can know in advance what the commission is up to. Better yet, tell them all to follow not only the letter but also the spirit of the Open Meeting Act.
The stated purpose of the Act is "to encourage and facilitate an informed citizenry's understanding of the governmental processes and governmental problems." (OKLA. STAT. tit. 25, § 302)
Therefore, then-Attorney General Drew Edmondson said in 2000, "a governmental body must operate with such openness that the citizenry is informed of its activities." (2000 OK AG 7, ¶ 30)
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)
The principle is "very simple," the state Court of Civil Appeals said that year: "When in doubt, the members of any board, agency, authority or commission should follow the open-meeting policy of the State." (Matter of Order Declaring Annexation, Etc., 1981 OK CIV APP 57, ¶ 18)
In contrast, the Oklahoma Commission for Human Services has a budget committee that meets in secret.
The commission purposefully places no more than four of its nine members on the Budget Committee in at attempt to avoid the requirements of the Open Meeting Act. That loophole only applies, however, if the committee has no actual or de facto decision-making power.
But the Budget Committee "has de facto decision-making authority," said Dow, executive director of the Community Action Project of Tulsa County.
"They did not decide to approve the overall budget, but it did decide the details of that budget," he said.
Ooops!
(Friday's posting explains the loopholes that the commission is trying to exploit.)
Nothing in the Open Meeting Act prevents the Oklahoma Commission for Human Services from posting agendas and keeping minutes of its Budget Committee meetings or from posting more details on its agenda.
Only a desire for secrecy is stopping it.
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.
The statewide commission overseeing the Oklahoma Department of Human Services doesn't seem too keen on open government.
On Tuesday, members of the Oklahoma Commission for Human Services just packed up their things after an executive session and left without a public vote to adjourn, reported Oklahoma Watchdog Editor Peter J. Rudy.
And Commissioner Steven Dow complained to Rudy that he -- Dow -- is not allowed to attend the commission's budget committee hearings.
Rudy said he has provided information about the lack of a public vote to adjourn -- an apparent violation of the Open Meeting Act -- to the Oklahoma County district attorney.
Rudy said he was the only person in the meeting room when commissioners returned from about a 15-minute executive session. Rather than dealing with the next agenda item or even voting to adjourn, commissioners "started gathering their things and leaving," Rudy reported.
Rudy said he was told the meeting was over. During a subsequent interview, he was told that the commission's clerk "asked each member individually for their vote on whether to adjourn."
However, 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)
That doesn't mean voting behind closed doors at the end of the executive session or in the hallway walking back to the meeting room.
Leaves me wondering what else commissioners vote on outside the view of the public.
Also indicative of the commission's disrespect for an open government was Dow's complaint of being barred from the commission's budget committee hearings.
"They do not want the committee subject to the Open Meetings Act. There is no agenda, no minutes, no way for me to find out what the deliberations were,” said Dow, executive director of the Community Action Project of Tulsa County.
Apparently the budget committee isn't a majority of the commission members, but having Dow there would put it over the magic number.
Yes, it's that old game again.
For a detailed explanation, read how the OU Regents use a strict compliance with the letter of the Open Meeting Act to defeat its purpose.
Here is a summary of how it works: (1) The Open Meeting Act's definition of "meeting" allows less than the majority of a public body to meet secretly to discuss the public’s business. (2) The Open Meeting Act says it applies to "all committees and subcommittees of any public body." But a state Supreme Court decision years ago said that despite that language, the statute doesn't apply to committees that are strictly advisory.
Public bodies use these loopholes by saying the committee -- consisting of less than a majority of the public body -- isn't subject to the Open Meeting Act because the committee doesn't make decisions.
Seems odd that the budget committee wouldn't make any decisions.
Nothing in the statute prohibits the committee from following the Open Meeting Act by posting notices and agendas. They don't because they don't want the public to know what they're doing. That's outrageous.
And the Legislature needs to address these loopholes by clarifying that ALL means ALL, even those committees that just advise or recommend, and especially those committees whose members are from the parent public body.
On Tuesday, Dow was one of two commissioners to vote against the proposed budget for the Department of Human Services, Rudy reported in a separate story.
Dow's complaints about the budget and the budgeting process are worth reading.
The nine-member commission, established by the Oklahoma Constitution, "approves program budgets, funding, and policies and procedures that direct the Department's program and service delivery."
The other commissioners are Chairman Richard L. DeVaughn, Vice Chairman Aneta F. Wilkinson, Jay Dee Chase, Linda English Weeks, Michael L. Peck, Robert D. Rawlings, Anne M. Roberts, and George E. Young Sr.
They do an important job that should be done in the open. But that doesn't seem to be the commission's mind-set.
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.
A state investigatory audit of Broken Arrow Schools uncovered a possible Open Meeting Act violation that is being investigated by the state attorney general for possible prosecution.
The 84-page audit was released Thursday, but all details about the possible violation were redacted while state Attorney General Scott Pruitt's office continues its investigation.
"Once the AG’s office has completed its independent criminal investigation into these specific matters and a conclusion has been reached, those portions of the investigatory audit will be made public," according to a news release by Pruitt's office.
Violations of the Open Meeting Act are a misdemeanor punishable by up to one year in jail and a $500 fine.
Because the audit was requested by the Attorney General's Office to help in an investigation, the audit is considered part of that office's investigation and litigation files and, therefore, may be "kept confidential to preserve the integrity of the investigation until it’s complete or criminal charges are filed," according to the news release.
The audit covered several areas of interest between July 1, 2006, and March 31, 2009. Of the five current school board members, only Shari Wilkins and Sharon Whelpley served during that time.
"Following a thorough review, the Attorney General’s Office found possible criminal violations in at least two areas – open meetings and special favoritism for vendors. The AG’s Office will continue a criminal investigation in these areas, and pursue those criminally responsible, if warranted," according to the news release.
The audit cleared school board members of one alleged Open Meeting Act violation. A former board member was concerned that the board's policy committee had obligated the district for legal fees without proper board approval.
Auditors, however, determined that "no formal policy committee existed at the time" and that the contract for legal services was approved by the full board.
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications
An attorney representing four Oklahoma City TV stations says they won't appeal a judge's order banning cameras from the same courthouse floor as criminal proceedings involving an Oklahoma County judge and her husband, The Associated Press reports.
Robert D. Nelon has said the order by Judge Paul Woodward is blatantly unconstitutional.
I'm told the decision not to appeal is about newsroom budgets, not the chances of winning. OKC stations spent a lot of money attempting to get cameras into the courtroom for the murder trial of pharmacist Jerome Ersland.
Coincidentally, it was Oklahoma County Judge Tammy Bass-LeSure who initially approved allowing cameras in the Ersland trial courtroom. Now it's her criminal trial in the Oklahoma County Courthouse that Judge Paul Woodward is keeping television cameras away from.
On Tuesday, Woodward refused to hear Nelon's motion challenging the judge's order that TV cameras be kept away "from the immediate vicinity" of his Oklahoma County courtroom during hearings for Bass-LeSure. Woodward threatened to have TV crews arrested for contempt and to confiscate their cameras if he sees them near the courtroom again.
Unfortunately, Oklahoma County voters -- in whose courthouse Woodward is hearing motions regarding criminal allegations against one of their elected officials -- won't have any say the next time Woodward's name is on the ballot.
Woodward is a Garfield County judge but is hearing this case because his Oklahoma County counterparts recused themselves.
On Wednesday, a FOX 25 reporter and videographer learned that television cameras aren't banned from the hallways of the Garfield County Courthouse.
When the news crew shot video of Woodward's office door from the hallway, one of the judge's staffers asked, "Have you gotten permission to do that?" The news crew replied, "It's a public hallway."
Chief Judge Dennis Hladik told the reporter that the news media has a right to be in the Garfield County Courthouse.
So what is Woodward's compelling reason for banning them from the Oklahoma County Courthouse floor? Don't know. He hasn't given one. And he won't if the news stations don't ask a higher court to overturn his order.
Woodward's order starts down a slippery slope. May he ban TV crews from the entire courthouse or even the sidewalk outside? That's no more farfetched than his banning them from an entire floor of the courthouse.
Before newspaper folks start rejoicing over the ban on TV cameras, they should ask whether Woodward's order applies to them as well. Won't they want to shoot videos of interviews outside the courtroom if an actual trial occurs? Seems to be the thing to do in an era of converged media.
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.
Judge Paul Woodward wouldn't hear legal arguments on Tuesday against his order banning TV cameras in the same courthouse hallway as a criminal hearing involving an Oklahoma County judge and her husband.
Woodward threatened to hold TV crews in contempt and confiscate cameras if he sees them again in the hallway outside the courtroom, KFOR and KOKH Fox 25 reported.
Woodward's order relies upon a judicial canon no longer in effect.
A Garfield County judge, Woodward was assigned the case after Oklahoma County judges recused themselves. Oklahoma County Judge Tammy Bass-LeSure and her husband are charged with perjury and making a fraudulent claim against the state for taking payments for children they adopted but who don't live with them.
On Wednesday, Woodward ruled against Bass-LeSure's motion to have District Attorney David Prater removed from the case.
In May, Woodward issued the order banning TV news cameras from the hallway near the courtroom.
Local TV stations hired media attorney Robert Nelon to fight the order.
But on Wednesday, Woodward refused to hear Nelon's arguments. (Ironically, when Woodward announced his candidacy for a district judgeship a year ago, he said, "You want someone you feel like you have a fair chance with, who’ll listen to both sides.")
Nelon said Woodward had apparently "only skimmed the motion and hadn't fully read it."
"He just told us to get out of the courthouse," Nelon said.
He believes Woodward's order is "blatantly unconstitutional."
"The judge has the right under the law to control access in terms of a camera inside the courtroom," Nelon told KOCO and KFOR. "And he can probably tell you not to shoot [video] through the window of the courtroom.
"But I don't think the judge has the constitutional power to tell you that you can't be in a public place," said Nelon.
Woodward cited a judicial canon that had been in effect since 1997. The canon required the trial judge's permission first before cameras could be used in the courtroom. The canon did not require a judge's permission for news cameras to be used in courthouse hallways.
Also, the judicial canon hasn't been in effect since April 15. The state Supreme Court in December adopted a new Code of Judicial Conduct that makes no mention of cameras in courtrooms.
The change came at the recommendation of the Oklahoma Bar Association.
An OBA committee "discussed this issue at length but eventually decided that such rules did not belong in a Code of Judicial Conduct. These rules, if they are to be kept, would be better placed in the Rules for the District Courts or some other set of rules," according to the final report presented to the OBA membership for approval in November.
An attorney for the Oklahoma Press Association said judges should not construe the deletion of the regulations "as a direction that cameras in the courtroom are not allowed."
"Judges will hereafter have to decide on their own whether to allow cameras in the courtroom and, if so, will have to create their own ad hoc guidelines," wrote Michael Minnis.
Prior to formally opposing Woodward's order, the stations tried to meet with the presiding judge but got no response, reported FOX 25.
The station also reported that county commissioners are divided over whether they have the authority to require the judge to allow cameras in the courthouse hallway. Commissioner Brian Maughan said he would seek an opinion from Prater on the issue.
For now, Nelon points out, Woodward's order prohibits TV crews from a public area of the courthouse while allowing print journalists to "roam freely, to interview people, to stand where they want to, but the electronic media can't do the same thing."
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.
