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

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

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

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

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

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

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

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

That oversight should be rectified by state legislators next year.

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

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

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

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

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

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


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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In reaching its decision, the court also took into account the purpose of the Open Records Act "to ensure and facilitate the public's right of access to and review of government records so they may efficiently and intelligently exercise their inherent political power." (Id. ¶ 13, quoting OKLA. STAT. tit 51, § 24A.2)

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

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

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

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

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

The answer should be yes.

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

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

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

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


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


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

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

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

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

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

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

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

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

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

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

Pruitt should remind district attorneys of that.


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


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

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

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

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

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

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

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

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

Vanderburg said they must.

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Seems like another gray area that state legislators should address.

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


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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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


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

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

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

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

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

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

Wrong.

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

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

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

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

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

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

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

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

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

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

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

In coming to its 2009 decision, the court also took into account the purpose of the Open Records Act "to ensure and facilitate the public's right of access to and review of government records so they may efficiently and intelligently exercise their inherent political power." (Id. ¶ 13, quoting OKLA. STAT. tit 51, § 24A.2)

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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


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

Washington County judge hears arguments on motion to dismiss Open Meeting Act lawsuit against Bartlesville Redevelopment Trust Authority

Oklahomans aren't entitled to sue over Open Meeting Act violations, the Bartlesville Redevelopment Trust Authority attorney argued before a judge Thursday.

Dan McMahan also contended that public bodies aren't required to explain on an agenda what specific investigation or lawsuit will be discussed behind closed doors.

An attorney for the plaintiffs argued that the BRTA had waived its right to file a motion to dismiss when it filed an entry of appearance.

"We should not even be here," said J. Schaad Titus.

Associate District Judge Russell Vaclaw said he would study the information presented by both sides and render a decision within 30 days.

(Read coverage of the hearing by The Bartlesville Examiner-Enterprise.)

Plaintiffs Joel Rabin and Sharon Hurst allege that the BRTA purposefully misled the public about the purpose of its Aug. 11, 2010, 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.

In May, the BRTA filed a motion arguing that Rabin and Hurst have no right to sue to enforce the Open Meeting Act.

The BRTA 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. It also argues that private individuals may not sue under the Open Meeting Act because the statute is silent regarding such a right.

In a response, Rabin and Hurst's attorney said 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.

In a 2000 ruling, the Oklahoma Supreme Court said the state Senate could sue a state board over an alleged Open Meeting Act violation.

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."

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."

Attorneys for Hurst and Rabin also point 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.

At Thursday's hearing, McMahan also argued that agendas do not have to specify the "subject" of an executive session between a public body and its attorney to discuss "a pending investigation, claim, or action."

But Attorney General Scott Pruitt recently said in an informal opinion that a state public body's agenda was too vague under the Open Meeting Act when it listed an executive session "for the purpose of considering a settlement of a lawsuit(s)."

The meeting agenda should have listed the name of the parties in the lawsuit and a brief description of the litigation, Pruitt told the Commissioners of the Land Office.

But McMahan told the judge that revealing the subject of an "impending" lawsuit or investigation would give an unfair legal advantage to the other side.

McMahan's logic seems applicable only if the other side has no idea that it is the subject of a possible lawsuit or investigation requiring a discussion by a public body. How realistic is that?

McMahan's interpretation contradicts the language of the Open Meeting Act, which 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))

McMahan's version of the statute also would allow public bodies to discuss whatever they wanted behind closed doors because no objective evaluation would be possible to determine if the executive session had exceeded the statutory authorization.

Given the BRTA executive session at issue, perhaps that's what McMahan wants.

In January, the FOI Oklahoma Inc. board of directors approved a $1,000 grant to Rabin and Hurst, who are FOI Oklahoma members, to help support their costs of the Open Meeting Act lawsuit against the BRTA.

In March, the Bartlesville City Council allocated $30,000 to help pay the BRTA's legal expenses.


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.