Saturday, October 1, 2011
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."
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.
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.