Tuesday, November 8, 2011

AG's Office to Public Officials: List information about impending lawsuits, claims under agenda items for executive session; Staff documents given to members of public body are not 'drafts' exempted under Open Records Act

At least the nature of an impending lawsuit or claim should be listed on the agenda item for an executive session under the Open Meeting Act's attorney-client privilege, an official with the state Attorney General's Office said Monday.

"The public has a right to know what you are going to discuss in an executive session," said Rob Hudson, first assistant attorney general.

He spoke to more than 200 government officials, news media and other members of the public at a Monday seminar in Oklahoma City. The next workshop on the state freedom of information laws will be Nov. 14 at the High Plains Technology Center in Woodward.

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.

The Open Meeting Act permits public bodies to conduct executive sessions to discuss
confidential communications between a public body and its attorney concerning a pending investigation, claim, or action if the public body, with the advice of its attorney, determines that disclosure will seriously impair the ability of the public body to process the claim or conduct a pending investigation, litigation, or proceeding in the public interest. (OKLA. STAT. tit. 25, § 307(B)(4))
The statute also 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))

Hudson said listing only the specific statutory authorization for the proposed executive session under the attorney-client privilege would be a violation of the Open Meeting Act.

Hudson reiterated what Pruitt told a state agency in September: The agenda item should list information such as the name of the parties in the lawsuit.

"How else would the average person know what you are talking about," Hudson explained.

If the lawsuit or claim has not been filed, then the agenda item should include "at least the nature of it," Hudson said. "More is better."

On other Open Meeting Act issues, Hudson ...
  • Warned against taking "straw polls" in executive sessions;
  • Said a roll-call vote isn't required by the Open Meeting Act, "but it's the smart thing to do"; and
  • Warned that a majority of a public body should not take action or discuss public business by phone, email or even Facebook.

Speaking about the Open Records Act, another member of Pruitt's staff warned governments against charging more than the direct, reasonable cost of copying documents.

"This isn't supposed to be a money-making operation," said Diane Clay, communications director for the Attorney General's Office.

Clay also agreed that staff memoranda and other documents are public records when given in agenda packets to members of public bodies.

The Oklahoma Open Records Act contains no provision for "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)

Clay reminded officials of the statute's purpose: "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." (OKLA. STAT. tit. 51, § 24A.2)

Similarly, Hudson told officials to keep in mind the purpose of the Open Meeting Act: "Encourage and facilitate an informed citizenry’s understanding of the governmental processes and governmental problems." (OKLA. STAT. tit. 25, § 302)

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

And, Hudson pointed out, the Court of Civil Appeals held that "strict adherence to the letter of the law is required" and that "substantial compliance" is insufficient. (Matter of Order Declaring Annexation, Etc., 1981 OK CIV APP 57, ¶¶ 20-21)

Ultimately, Hudson warned officials: "The Open Meeting Act is the law. Don't break the law."

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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