A Stillwater parent wants to read the emails, text messages and other correspondence in which members of a school district committee discussed a controversial calendar that the school board appears ready to adopt for 2013.
Mitsi Andrews asked to inspect the emails after being told by Superintendent Ann Caine that no minutes existed for the committee's meetings.
Caine and the district won't even tell Andrews the names of all the committee members. (Read the related posting.)
And an attorney for the district now says Andrews has to pay a $250 deposit before the district will begin compiling the emails for her inspection.
And the cost includes a search fee, said Kent B. Rainey of Rosenstein, Fist & Ringold.
Yes. Another school district represented by this Tulsa law firm wants to charge a search fee to disclose records clearly in the public interest -- even though the state Open Records Act clearly prohibits such a fee in such circumstances.
In a letter to Andrews, Rainey said a search of archived emails from July 1 to Dec. 8 found 897 with "calendar committee" in the body. Nearly 21,000 emails were found with "calendar" in the body.
Rainey said the district doesn't archive employee text messages so the 36 district employees on the committee will have to be asked for such messages. He said a method of retrieving the messages would have to be determined.
Rainey said 15 non-district employees serve on the committee. He said those members will have to be asked for emails, text messages and other correspondence that they exchanged among themselves but not with district employees.
(How could the district contact those non-employees if it doesn't have a record of their names?)
All the collected documents will have to be reviewed by district personnel or his law firm for exempted material, he said.
For these reasons, Rainey said, "The District believes your ORA request would clearly cause excessive disruption of the District's essential functions."
Therefore, he said, Andrews will be charged a "fee to recover the direct cost of the document search."
But the Open Records Act prohibits a search fee in these circumstances, stating:
In no case, shall a search fee be charged when the release of records is in the public interest, including, but not limited to, release to the news media, scholars, authors and taxpayers seeking to determine whether those entrusted with the affairs of the government are honestly, faithfully, and competently performing their duties as public servants. (OKLA. STAT. tit. 51, § 24A.5(3))Andrews' request certainly fits within this provision. She has requested records that can reveal the pros and cons discussed by the committee, and which, if any, alternatives were rejected and for what reasons.
In June 2010, another school district represented by Rosenstein, Fist & Ringold tried to charge a $90 search fee for copies of the district’s itemized legal bills.
The Broken Arrow Public Schools superintendent at the time considered the records request to be "an excessive disruption of the business of the school" because Rainey charged the district for the three hours to redact exempted information from 17 legal bills submitted during a seven-month period.
Current BAPS Superintendent Jarod Mendenhal not only rescinded the search fee when he took office a week later but also agreed that one shouldn't have been charged in the first place. A district spokesman said:
Clearly the Act says in 'no' case shall a search fee be charged when the release of records is in the public interest, including but not limited to, release to the news media, scholars, authors and taxpayers seeking to determine whether those entrusted with affairs of governments are honestly faithfully, and competently performing their duties as public servants.Because the Stillwater school district is represented by Rosenstein, Fist & Ringold, it is useful to review legal arguments made by the Broken Arrow superintendent who tried justify a search fee.
Most requests fall under that description meaning a search fee can’t and won’t be charged. If a request for commercial uses causes an excessive disruption of the business of the district, it could be assessed a search/administrative fee per the Open Records Act.
Gary Gerber had pointed to this comment by the Oklahoma Court of Appeals in a 1995 case:
We observe that the public interest is as equally well served by public agencies performing their essential services without burdensome, disruptive records requests as in providing release of information to tax payers. (McVarish v. New Horizons Cmty. Counseling and Mental Health Servs. Inc., 1995 OK CIV APP 145, ¶ 3)In McVarish, the court had quoted with apparent approval the trial judge’s conclusion that "whether or not there's any public purpose or whether it's a matter of a private vendetta ... I think what the legislature was perhaps trying to say was if there's going to be some sort of substantial disruption of business of the public agency then a fee is not improper."
But the trial court had "clearly overstepped its judicial authority" with its interpretation, said an attorney serving on the FOI Oklahoma Inc. board of directors in 2010.
"Clearly, § 24A.5 says no such thing," said Doug Wilson, who won several Open Records Act cases before becoming an assistant district attorney for Tulsa County.
Indeed, McVarish was not mentioned in subsequent attorney general opinions on the meaning of "In no case, shall a search fee be charged when...."
In a 1996 opinion, state Attorney General Drew Edmondson described that language as a "legislative warning," saying:
Should a public body choose to charge a search fee it should proceed with caution in view of the legislative warning set forth in the Act which provides in pertinent part: 'In no case shall a search fee be charged when the release of said documents is in the public interest, including, but not limited to, release to the news media, scholars, authors and taxpayers seeking to determine whether those entrusted with the affairs of the government are honestly, faithfully, and competently performing their duties as public servants.' (1996 OK AG 26, ¶ 13 (quoting OKLA. STAT. tit. 51, § 24A.5(3))Using absolute terms of his own in a 1999 opinion, Edmondson said, "Further, a search fee cannot be charged when release of public records is in the public interest, such as release to the news media, scholars, authors or taxpayers seeking to determine if government affairs are being properly performed." (1999 OK AG 55, ¶ 15)
Legislative intent also had been "quite clear" to then-Attorney General Robert H. Henry in 1988, when he said public bodies could not charge a search fee to reporters investigating government operations.
"[T]here is no situation under which a member of the news media may be lawfully charged a search fee by a public body," he said. "51 O.S. 24A.5(3) … is quite clear on that point when it decrees 'in no case' may such search fees be assessed in such circumstances." (1988 OK AG 35, ¶ 6 (citing OKLA. STAT. tit. 51, § 24A.5(3))
That prohibition on search fees would seem to apply to Andrews' request given that the same sentence in the statute includes both the news media and "taxpayers seeking to determine whether those entrusted with the affairs of the government are honestly, faithfully, and competently performing their duties as public servants."
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.