Public may speak up at administrative law hearing for access to annual reports submitted to state Corporation Commission

The public will be allowed to comment during an administrative law hearing Thursday regarding public access to telephone company annual reports submitted to the Oklahoma Corporation Commission.

The hearing starts at 10:30 a.m. It has been moved to Room 301 (a large hearing room) of the Jim Thorpe Building in Oklahoma City.

Administrative Law Judge Jacqueline Miller will ask for public comment.

Miller's recommendation will be sent to the commission, which will decide whether to give the public more access to the reports.

The OCC Public Utility Division director is asking commissioners to issue an order determining what information required to be in the annual report "will be deemed proprietary, confidential, and competitively sensitive."

David B. Dykeman also wants the commission to determine "what records will be deemed proprietary, confidential, and competitively sensitive in Protective Orders."

Public access to the reports is important.

As the OCC's own legal counsel has noted, the 2004 commission order closing all public access to the reports is overly broad to the point of absurdity.

"Read literally it applies even to the names of telephone companies and other information already in the public domain," said Andrew Tevington.

The annual reports provide basic information about public utilities regulated by the three-member Oklahoma Corporation Commission.

If the information is important enough to be required in reports to this public agency, then it's important enough for the public to know.

For example, Schedule 7 of the annual report discloses the number of trouble tickets per exchange.

The reports don't contain information about individual callers or phone company employees.

But the reports do contain information "such as government subsidies received and total revenue," said Matt Skinner, OCC public information officer.

That information is related to the monies that telephone companies receive from the Oklahoma Lifeline Fund and the Oklahoma Universal Service Fund.

The Lifeline Fund subsidizes basic services to eligible low-income customers. The Universal Service Fund subsidizes the availability of reasonably comparable services at affordable rates in rural areas.

Both are financed by assessments placed on each telecommunications carrier operating in the state. The funding from each carrier is based on the percentage the company's Oklahoma intrastate telecommunications revenues represents of the total such revenues of all such companies. (OKLA. STAT. tit. 17, § 139.107)

As Tevington noted, these "funds require openness to public scrutiny to assure the citizenry that the monies are spent appropriately by the correct parties."

"Information concerning telecommunications lines and the leadership of telephone companies may provide necessary information for the public to make sure these funds are spent appropriately," he said. "The use of public monies by telephone utilities demands openness of their records in the commission's possession."

Yes, it does.

Oklahomans "are vested with the inherent right to know and be fully informed about their government." (OKLA. STAT. tit. 51, § 24A.2)

That principle creates a presumption that government-held information is open to the public. Unless an applicable statutory exemption exists, "information coming into the possession of a public body or a public official or records generated by a public body must be subject to the Open Records Act.” (2002 OK AG 5, ¶ 14)

The purpose of the Oklahoma 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."

That's tough for the people to do when information in the hands of government is kept from the public for no apparent overriding reason.

The intent of the statute "requires that questions of doubt as to the accessibility of government records be resolved in favor of access." (1988 OK AG 35, ¶ 3)

The Oklahoma Corporation Commission should resolve this question in favor of access by undoing its 2004 order and restoring the public's right to these annual reports.


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.

Rogers County judge rules police dash-cam video not public record under Open Records Act

The Claremore Police Department's dash-cam recordings are not public records under the state Open Records Act, a Rogers County judge ruled Tuesday.

But requesters may ask a court to find that the release of a particular recording would serve a public interest that outweighs the reason for denial, noted Associate District Judge Sheila A. Condren.

Two attorneys who specialize in drunken-driving cases -- Stephen G. Fabian Jr. of Oklahoma City and Josh D. Lee of Ward & Lee -- sued Claremore and Catoosa in June for access to their police departments' dash-cam recordings.

Condren's ruling in favor of Claremore was a surprise given that the city of Catoosa in June agreed to release its police department's audio and video recordings and because local law enforcement agencies typically release such recordings.

For example, the Oklahoma County sheriff last week released the dash cam video of a head-on collision in which a deputy was injured.

Condren's ruling contradicted an Oklahoma County district judge's 2005 ruling that favored Fabian by barring "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.)

Her ruling also seems at odds with a 2004 state Supreme Court ruling also in favor of Fabian. The court ruled that DPS 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 Claremore police department's dash-cam recordings certainly contain facts concerning arrests.

Even Condren noted that the Claremore Police Department's dash-cam audio and video was "the only recording possessed by CPD of Plaintiff's client regarding the DUI stop and arrest."

But Condren said the Supreme Court case dealt "with what amounts to a transcript of a public hearing."

"In contrast, the 'dash cam' recording is a direct piece of evidence," she said. "As a result, the Court finds the Fabian case distinguishable from the facts presented at bar, and finds the 'dash cam' recording is not a public record pursuant to Title 51 O.S. § 24A.8 which is subject to public inspection."

The Supreme Court had interpreted the Open Records Act as requiring certain information in the hands of law enforcement to be made public.

Condren, however, read the statute as listing documents that must be public. And dash-cam recordings are not specified. (See OKLA. STAT. tit. 51, § 24A.8(1-8))

Condren's ruling is a blow to the public's need to know in Oklahoma. Other local law enforcement agencies are likely to cite it as a reason for not releasing their dash-cam videos.

But Fabian and Lee aren't likely to give up in this case, so we can hope that an appellate court will put dash-cam recordings firmly back in the realm of public information.


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.

Order closing telephone companies' annual reports to public violates state Open Records Act, says Corporation Commission attorney

The Oklahoma Corporation Commission should not have closed public access in 2004 to all the annual reports it receives from telephone companies, the commission's legal counsel recently said.

Andrew Tevington said the 2004 order violates the Open Records Act by exceeding the commission's statutory authority to close public utility records in its possession.

"The scope of the order is absurd. It goes against the State’s policy that records will be open unless a good, supportable, indiviualized reason exists otherwise," said Tevington in written testimony submitted to the commission on Aug. 11.

He urged commissioners to revoke the 2004 order and to decide case by case whether any information in each telephone company's annual report should be kept confidential.

But Attorney General Scott Pruitt said,

Nothing in the express language of the [Open Records] Act dictates or restricts the manner in which the Commission makes such a determination - whether it be on a case-by-case basis particular to a specific utility or a determination that a category or type of information is confidential as applied to several utilities, as in the case of the Annual Reports.

The written testimony by Pruitt and Tevington was given as the commission considers a request by one of its officials to change the rule.

David B. Dykeman, director of the Public Utility Division, is asking commissioners to issue an order determining what information required to be in the annual report "will be deemed proprietary, confidential, and competitively sensitive."

Dykeman also wants the commission to determine "what records will be deemed proprietary, confidential, and competitively sensitive in Protective Orders."

A hearing on the merits of the request is scheduled before Administrative Law Judge Jacqueline Miller for 10:30 a.m. Thursday in Room 301 of the Jim Thorpe Building in Oklahoma City.

Tevington said the only testimony heard in 2004 was from representatives of four telephone companies and the then-Public Utility Division director.

Order No. 493818 "allowed all information in all telephone annual reports to be confidential."

Tevington contended that "goes too far for four reasons":

1. "The order is too broad. Read literally it applies even to the names of telephone companies and other information already in the public domain."
2. "The order covers too many telephone utilities. ... It applies across the board to all telephone companies without any determination of whether a specific company’s information requires protection."
3. "The order covers all of each telephone utility's annual reports without specific, individualized consideration of the information in any report. No attempt is made to discern whether any trade secrets or sensitive commercial information is even in the report."
4. "Order No. 493818 is a general order, analogous to an administrative rule, and was entered without appropriate public participation as required by" state law.

Tevington noted that the policy underlying the Open Records Act "seeks to make state government and government business transparent to the people" and that "disclosure is favored over secrecy."

He also emphasized that the Open Records Act does not create a right of individual informational privacy.

"In the ordinary course of government business, any person who submits information to a state agency has no right to keep this information confidential," Tevington said. "An expectation of confidentiality may exist only when the Legislature or Congress creates a specific exemption.

"Furthermore, even when an expectation may be created by statute, the party seeking confidentiality bears the burden of proving the specific record should be kept confidential.

"These provisions show clearly stated legislative policy requires records coming into the possession of a state agency to be presumed open to public access."

Under the Open Records Act, "The Corporation Commission shall keep confidential those records of a public utility, its affiliates, suppliers and customers which the Commission determines are confidential books and records or trade secrets." (OKLA. STAT. tit. 51, § 24A.22(A))

Based on that statutory language, Tevington argued, "The commission's statutory ability to decide some utility information may remain confidential does not allow the OCCC to make all information confidential.

"The Legislature did not say the Commission may keep records of public utilities confidential; instead, it said OCC may 'keep confidential those records of a public untility . . . which the Commission determines are confidential books and records or trade secrets.'" (emphasis included)

Tevington concluded that the order closing all the telephone company annual reports "goes beyond the legislative grant of authority."

The statutory language "indicates a decision concerning confidentiality must be made about one utility at a time," he said. "It is not appropriate to aggregate all public utilities of a class and make a blanket pronouncement about access.

"The Open Records Act requires an individualized determination of whether a specific utility's information should be protected from public scrutiny. One size does not fit all."

Tevington said the 2004 order "is overbroad both as to the number of entities it covers and as to the type of information is covers" and violates "the Open Records Act's requirements for specific findings."

He also noted that the telephone companies receive money from the Oklahoma Lifeline Fund and the Oklahoma Universal Service Fund.

"These legislatively created funds require openness to public scrutiny to assure the citizenry that the monies are spent appropriately by the correct parties," Tevington said. "Information concerning telecommunications lines and the leadership of telephone companies may provide necessary information for the public to make sure these funds are spent appropriately.

"The use of public monies by telephone utilities demands openness of their records in the commission’s possession."

The Oklahoma Corporation Commission consists of Chair Dana Murphy, Vice Chairman Jeff Cloud and Commissioner Bob Anthony. The three commissioners are elected by statewide vote to serve six-year terms.


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.

Wagoner police identify two officers involved in fatal shooting

The Wagoner Police Department on Friday released radio logs identifying the two officers involved in the fatal shooting of a Coweta man outside a Wagoner fast-food restaurant on Aug. 16, the Muskogee Phoenix reported.

Wagoner Police Chief Bob Haley had refused to disclose the names, citing an ongoing OSBI investigation as justification for not disclosing the names, the newspaper had reported.

But no provision of the Oklahoma Open Records Act permitted such a delay. The statute requires that the following information be made public: "A chronological list of all incidents, including initial offense report information showing the offense, date, time, general location, officer, and a brief summary of what occurred."

The state Attorney General's Office has long said Oklahoma public agencies and officials have a "duty" to provide prompt, reasonable access to public information. (2005 OK AG 3, ¶ 4)

"There is no provision in the Open Records Act for a public body to 'withhold' records for any amount of time, however small. The duty to provide prompt and reasonable access is complied with only when a public body properly attends to its duty to provide a record," according to a formal 1999 opinion. (1999 OK AG 58, ¶ 11)

On Friday, the identities of Officers Jamie Powell and Kevin Higginbottom were revealed in documents provided to the Muskogee Phoenix in response to its Open Records Act request.

District Attorney Brian Kuester on Friday cleared Powell and Higginbottom, saying their use of deadly force was justified because the Coweta man was attacking them with a knife.


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

Wagoner police chief refuses to identify two officers involved in fatal shooting more than a week ago

For nine days, Wagoner Police Chief Bob Haley has refused to tell the public which two of his officers were involved in the fatal shooting of a Coweta man outside a Wagoner fast-food restaurant, the Muskogee Phoenix reported today.

Haley has cited the ongoing OSBI investigation as justification for not disclosing the names, the newspaper reported.

But no provision of the Oklahoma Open Records Act provides for such a delay.

The statute requires that the following information be made public: "A chronological list of all incidents, including initial offense report information showing the offense, date, time, general location, officer, and a brief summary of what occurred." (OKLA. STAT. tit. 51, § 24A.8(A)(3))

I'm told that Haley says he won't release the incident reports because the officers haven't filed one because they were placed on administrative leave following the shooting on Aug. 16.

Haley might be well-intentioned, but his reasoning is nonsensical and an insult to the people of Wagoner.

The statute says "information showing...." It doesn't require that an incident report have been filed.

Regardless of the OSBI investigation, that information is public when it's in the hands of the Wagoner police. No provision of the Open Records Act allows for the information to be redacted.

Certainly the police chief knows which officers were involved. How else could they have been placed on administrative leave? How else could the OSBI be conducting its investigation?

When does Haley intend to release the information? Never? Does he contend that the public is not entitled to the information?

The Open Records Act doesn't let government officials decide when it's time to disclose information that the public is entitled to know.

Oklahoma public agencies and officials have a "duty" to provide prompt, reasonable access to public information. (2005 OK AG 3, ¶ 4)

"There is no provision in the Open Records Act for a public body to 'withhold' records for any amount of time, however small. The duty to provide prompt and reasonable access is complied with only when a public body properly attends to its duty to provide a record," the state Attorney General's Office has said. (1999 OK AG 58, ¶ 11)

So the law doesn't empower the police chief to withhold this information until he deems the time is right. It's public information that should be disclosed now.

Why does Haley not want the public to know this information?

Oklahomans "are vested with the inherent right to know and be fully informed about their government." (OKLA. STAT. tit. 51, § 24A.2)

The purpose of the Oklahoma 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."

That right to know is stolen from the public when public officials refuse to abide by the Open Records Act. The police chief might not like this law, but he has an obligation to follow it.

And by hiding the names, Haley is making the situation worse by giving the impression that the department and those officers have something to hide. He is doing a disservice to those officers.

It's time to tell the public who the officers are.


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 open meeting, records seminars start Sept. 26

Have questions or concerns about Oklahoma's Open Meeting and Records laws?

You can ask First Assistant Attorney General Rob Hudson during a statewide series of seminars on the state's freedom of information laws.

Hudson will answer FOI-related questions and explain the requirements on access to public records and the conduct of public meetings.

The seminars are free and open to the public. Registration is not required.

Each will be from 1 p.m. to 4 p.m. The first is Sept. 26 at the Southern Oklahoma Technology Center, 2610 Sam Noble Parkway, Ardmore.

The workshops are sponsored by Attorney General Scott Pruitt, the Oklahoma Press Association, Oklahoma Newspaper Foundation and FOI Oklahoma Inc.

For more information, contact Lisa at OPA, (405) 499-0040, toll-free in Oklahoma at 1-888-815-2672 or lpotts@okpress.com.

The rest of the seminars are scheduled for:

• Oct. 17: Bedouin Shrine, 201 Sixth St., Muskogee.


• Nov. 7: Metro Technology Center, Conference Center Auditorium, 1900 Springlake Drive, Oklahoma City.


• Nov. 14: High Plains Technology Center, Seminar Center, 3921 34th St., Woodward.


• Dec. 5: Tulsa Technology Center-Riverside, 801 E. 91st St., Tulsa.


• Dec. 12: Great Plains Technology Center, 4500 W. Lee Blvd., Lawton.

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

Edmond school board's promise of transparency echoes Open Government Pledge; But board agendas fall short

Edmond's Board of Education will "comply with both the letter and the spirit of Oklahoma's Open Meeting and Open Records laws," Board President Kathleen Duncan recently promised.

“We have been criticized somewhat in the past year for not being as transparent as we could be as far as the operations of our school system,” Duncan said at a board meeting July 21.

In February, a candidate for the board's District 1 seat signed FOI Oklahoma's Open Government Pledge, promising to "comply with not only the letter but also the spirit of Oklahoma's Open Meeting and Open Records laws" if elected.

Ann Cameron also 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."

Cameron, married to FOI Oklahoma Inc. board member Alex Cameron of KWTV NEWS9, lost to Lee Ann Kuhlman by 51 votes.

But she seems to have succeeded in making open government an important issue for the board. At the July 21 meeting, according to the Edmond Sun, Duncan read an Open Government Statement to the other school board members:

I think it is important for us to assure the public that we have taken steps to keep the public better informed such as hiring a PR person and by posting a monthly newsletter on the EPS website.

We also want our patrons to know that we fully support and will do our best to comply with Oklahoma’s Open records Act and Open Meeting Act and have recently received the Sunny Award for our efforts to keep the public informed regarding school business.

We fully support the notion that the people are vested with the inherent right to know and be fully informed about their school government and we will continue to comply with both the letter and the spirit of Oklahoma’s Open Meeting and Open Records laws.

The Open Government Statement doesn't seem to be on the school district's website.

Looking for it, however, revealed board agendas that don't live up to that promise.

Agendas should be worded in "plain language, directly stating the purpose of the meeting, in order to give the public actual notice. (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 state Court of Civil Appeals said.

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)

Or as a 1980 attorney general opinion said, "The Open Meeting Act must be given a construction which will effectuate and not subvert the intention of the Legislature in facilitating an informed citizenry’s right to participate in government and understand why government acts affecting their daily lives are taken." (1980 OK AG 215, ¶ 12)

But the school board's July 21 agenda made no mention of an Open Government Statement. The newspaper article gave no indication of when or how the statement was endorsed by the other school board members, so perhaps the "we" was rhetorical.

The same agenda also failed to give the public actual notice of what the board would discuss under item No. 1, which read: "Board Member Continuing Education and planning sessions with superintendent and staff."

The meeting was labeled as "Continuing Education." No such meeting category is provided for in the Open Meeting Act. Because the meeting was not listed among the board's regular meetings for the year, it must be treated as a special meeting -- meaning the board may consider only items listed on the agenda. (OKLA. STAT. tit. 25, § 311(A)(11))

Public bodies were cautioned in September 2009 not to use "cryptic" agenda language to hide what they will do in a meeting.

"Don’t try to hide items of business by putting it under 'report,'" warned the head of the state Attorney General's General Counsel Section.

The Attorney General's Office prefers for such reports "to have bulleted points for items under the report," said Gay Tudor during an open government workshop for public officials.

The Edmond school board's agenda item doesn't seem any different from "report by staff."

The public was clearly entitled to be at the board's July 21 meeting. So the agenda should have listed the specific topics for the "continuing education and planning sessions with superintendent and staff."

The same agenda also called for an executive session to discuss negotiations with employee groups.

But the agenda did not specify which employee organization negotiations would be discussed in executive session. The statute requires that the agenda item for an executive session "identify the items of business and purposes of the executive session." (OKLA. STAT. tit. 25, § 311(B)(2)(a-c))

The board's Aug. 1 agenda called for an executive session under the statute's personnel exemption. But the agenda itself didn't list the names or unique titles. Instead the information was listed separately and not included online with the agenda.

However, 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." The purpose is to give the public actual advance notice. (1997 OK AG 61, ¶ 5)

That purpose is defeated if a public body such as the Edmond school board lists the information separately from the agenda.

The Aug. 1 agenda also cited attorney-client privilege as a reason for the executive session. But it didn't reveal the "pending claim, investigation or litigation" for which a closed-door discussion was necessary to protect the public's interest.

This blog has long contended that agendas must identify the nature of the claim, investigation or litigation on the agenda for an executive session under the Open Meeting Act's attorney-client privilege exemption.

The district attorney for the Oklahoma Panhandle agreed in June, reminding a public hospital board that the agenda item for any executive session must "identify the items of business and purposes of the executive session."

"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," said James M. Boring, district attorney for Cimarron, Texas, Beaver and Harper counties.

The Edmond school board's agendas for July 21 and Aug. 1 did not provide enough information to give the public actual notice.

These omissions contradict the letter and spirit of the Oklahoma Open Meeting Act and Duncan's Open Government Statement.


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 Watchdog: DHS legal staff to respond to DA’s request for explanation regarding Open Meeting Act violations

State Department of Human Services legal staff, not the commission overseeing DHS, will respond to the Oklahoma County district attorney's request a week earlier for a written explanation for why two issues "should not be viewed as willful violations of the Oklahoma Open Meeting Act," Oklahoma Watchdog reported Friday.

District Attorney David Prater said the commission's "actions of not reconvening after executive session and of possibly utilizing a committee with de facto decision-making authority may potentially constitute willful violations of the Act."

Prater's request for more information was directed to Commission Chairman Richard L. DeVaughn. Prater told the Tulsa World, "It's giving them a chance to defend their position, giving them some due process."

The Oklahoma Commission for Human Services certainly seems to have violated the Open Meeting Act in some instances. For more explanation, read "DHS commission falls short of Open Meeting Act requirements, DA says."


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 commission falls short of Open Meeting Act requirements, DA says

The statewide commission overseeing the Oklahoma Department of Human Services may have violated the Open Meeting Act, Oklahoma County's district attorney said Friday.

The commission's "actions of not reconvening after executive session and of possibly utilizing a committee with de facto decision-making authority may potentially constitute willful violations of the Act," said David Prater in a five-page letter to Commission Chairman Richard L. DeVaughn.

Prater asked DeVaughn for a "written reply to provide any needed explanation or clarification of the ... issues and to show why these two issues should not be viewed as willful violations of the Oklahoma Open Meeting Act."

Prater told the Tulsa World, "It's giving them a chance to defend their position, giving them some due process."

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)

The state Supreme Court has 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)

DeVaughn told the Tulsa World, "I’m very, very confident that we have never violated the Open Meetings Act in any form."

DeVaughn, a commissioner since 2004, better read the Open Meeting Act again because they certainly have violated it.

At their June meeting, 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, Oklahoma Watchdog Editor Peter J. Rudy reported at the time.

Rudy and Commissioner Steven Dow complained to Prater about the commission's practice to "never officially return from executive session and publicly vote in open meeting about the matters discussed in executive session."

The Open Meeting Act prohibits the commission from voting in executive session. The statute also requires that all votes be publicly cast.

Dow complained "there is also no official adjournment of any meeting of the Commission when returned to open session after having conducted an executive session."

Dow said members have sometimes "simply left the meeting after executive session" and the clerk/secretary telephoned them to get their vote on adjournment.

Commission records showed Commissioner George Young Sr. voting to return from an executive session and to adjourn the meeting June 14 even though Young wasn't present for most of the executive session or for the adjournment, the Tulsa World later reported.

Prater said the commission clearly "has not properly come back into open session after having convened and gone into executive session."

He said telephoning commissioners for their votes on executive sessions and on adjournment "falls short of what is required under the Act."

"The practice ... is careless at best and falls short of what the public has a right to expect from its public servants," Prater said. "This office condemns any action, purposeful or unintentional, which has the intent or effect of circumventing the Open Meeting Act in regard to executive session matters."

Prater rejected the notion that not publicly voting to adjourn would be a "de minimis violation."

"I would submit there are no de minimis violations of the Open Meeting Act," Prater wrote. "Oklahoma's laws on openness in government serve an important and noble purpose. Those of us privileged enough to serve the public and who are thereby bound by those laws must demonstrate through our actions and attitudes the utmost respect for those laws and the principles they serve."

Prater commended the commission for properly reconvening in open session to adjourn at its July 26 meeting.

But Prater told the Tulsa World he is looking "real hard" at whether the commission purposefully places no more than four of its nine members on its Budget Committee in an 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.

"Part of the problem looking into these committees is there are no minutes and nothing is recorded so it is hard to determine what has been considered," Prater told the newspaper.

(For a detailed explanation of how public bodies try to exploit the loophole, read how the OU Regents use a strict compliance with the letter of the Open Meeting Act to defeat its purpose.)

Dow has said the Budget Committee "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 said.

Dow also had complained that when the commission approved the Department of Human Services budget in June, 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.

Prater said the omission was not a "willful violation of the law that would render null and void the action taken by the Commission."

An agenda item concerning a $500 million budget "could never spell out each and every detail," wrote Prater.

"However, the core purposes of the Open Meetings Act dictate that the public be able to ascertain what actions are to be considered or taken by its governing bodies, and my concern is that with very little effort on the part of the Commission, this particular agenda item could have been made to far better advance the purposes of openness in government," Prater wrote.

Prater warned the commission not to use "future agenda items which are phrased very vaguely and have imbedded within them massive policy changes," saying they "may indeed constitute violations in light of the expressions of concern contained within this letter."

In June, DeVaughn had 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.

Seems as though Prater has done just that.

(For more news coverage of Prater's letter, read DHS commission may have violated openness laws, DA says by Bryan Dean of The Oklahoman.


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.

Tulsa oilman's divorce case in Osage County opened after secrecy questioned by newspaper

A divorce case in Osage County was opened Wednesday after the editor of The Bigheart Times questioned why the entire case, including the names of the couple, lawyers and judge, had been sealed.

Even the order sealing the case had been closed to the public.

Debra Zinke, owner of the Z7 Bar Ranch in Osage County, is seeking a divorce from Robert Zinke, the president of Tulsa-based oil and gas company Zenergy Inc., Bigheart Times owner Louise Redcorn reported today for the Tulsa World.

(ZINKE, DEBRA R vs. ZINKE, ROBERT M, FD-11-00142, Osage County, July 22, 2011)

Redcorn had challenged the manner in which the case had been sealed in Osage County on July 22.

Gentner Drummond, attorney for Debra Zinke, told Redcorn that the state Open Records Act justified the case being sealed.

No, it doesn't.

Drummond also claimed that divorce cases are commonly filed under seal in Oklahoma.

No, they are not. And such a practice should not become common.

Our public court system is just that -- public. The rich and powerful don't have a separate judicial system in our state.

Why else should the public be entitled to know what's in a divorce case?

First, the public is entitled to make the most informed choice possible when selecting who will operate its government. Divorce files, like many other court records, can provide valuable information about business dealings and other aspects of a candidate for political office, an elected official or a powerbroker who influences government.

Take, for instance, the divorce file of then-Tulsa mayoral candidate Dewey Bartlett Jr. In September 2009, Michael Bates posted on his conservative blog Batesline a small portion of the 2002 case file that brought into question Bartlett's financial acumen, a key selling point in his campaign.

(After Bates began posting parts of the file, Bartlett succeeded in getting a Tulsa County special judge to seal the file -- a day or so after Bartlett had signed FOI Oklahoma's Open Government Pledge.)

Second, if some divorce records in the public court system are closed, why not seal everyone’s files? Because the information in those court files can help each of us make more informed life-affecting decisions. Choosing a business partner? Hiring an employee? Selecting a doctor, baby-sitter or day-care provider for your child? Concerned about your daughter’s new boyfriend? Etc.

Personal information in government-held records can help us make better decisions about the people and events most important in our lives.

Third, access to court records assures the public that everyone is treated equally in our judicial system and that decisions aren't "based on secret bias or partiality" – as the U.S. Supreme Court said in defense of open courts.

"Closed trials breed suspicion of prejudice and arbitrariness, which in turn spawns disrespect for law," the Court said.

The same can be said for court records sealed from public view.

In requesting the Zinke divorce case be filed, Drummond wrote that "publication of the name of the parties in this case, either in the public record or through public media, would do irreparable economic harm to the parties, and their related companies."

How? Why?

He cited no laws or court rules to justify sealing the case, reported Redcorn.

She said Osage County District Judge John Kane deferred her questions to Drummond but suggested that "irreparable harm" could result if the case was open. She said records show Kane granted the order "in the interests of justice."

What justice? What compelling reason relevant to this case did Kane have for sealing the entire file and overriding the public interest in open court records?

Kane's decision smacks of smacks of impropriety and favoritism.

Drummond said he was "conceding ground" by having the file opened.

He also said he should take the blame for his "legal shenanigans."

"I was culpable. I don’t think Judge Kane was culpable in any way, and I know the Zinkes aren’t culpable. They just wanted to do it privately. They never mentioned the word 'seal,'" he told Redcorn.

But Drummond told her that he would defend the privacy of any final settlement "over his dead body."

The final settlement shouldn't be closed any more than the rest of the file should have been.

But if it is, the public can trust that Redcorn will be there to challenge such a decision.


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.