Tuesday, October 4, 2011

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.

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