AG says Open Meeting Act doesn't apply when public bodies discuss 'broad general matters' possibly related to their business but on which they cannot take action

Public bodies don't have to abide by the Open Meeting Act when meeting with governmental agencies or private entities to discuss "broad general matters that may be related to the business of the public body, but are not matters on which the public body could take action," Attorney General Scott Pruitt said in a written opinion issued today.
 
Instead, Pruitt said, the statute applies only when public bodies are "considering discrete proposals or specific matters that are within the agency's jurisdiction."
 
For example, Pruitt said the state Corporation Commission isn't subject to the Open Meeting Act when meeting with other governmental agencies "to discuss mutual business, or attends a meeting of a private entity concerning a topic of interest to the Oklahoma Corporation Commission's business, ... unless, at the meeting, the commissioners are considering discrete proposals or specific matters that are within their jurisdiction."
 
And the statute wouldn't apply when two of the three commissioners attends a state Senate or House "meeting to provide information about the Commission's business to aid the Legislature in its process of decision-making" because the commissioners would not be "considering discrete proposals or specific matters within their jurisdiction."
 
But when at least two commissioners are present at a public utility hearing, the Open Meeting Act applies because "the commissioners are engaged in the 'conduct of business' because they are considering discrete proposals or specific matters that are within their jurisdiction."
 
Even though Pruitt's 19-page opinion dealt with the Open Meeting Act's application to the Corporation Commission, it sets the framework for other public bodies seeking to discuss issues of public concern with governmental agencies and even private entities.
 
The Open Meeting Act defines a meeting as:

[T]he conduct of business of a public body by a majority of its members being personally together or, ... together pursuant to a videoconference. Meeting shall not include informal gatherings of a majority of the members of the public body when no business of the public body is discussed. (OKLA. STAT tit. 25, §, 304(2))

Pruitt noted that opinions by his predecessors "do not limit the types of discussion that fall under the Act to those that 'effectively predetermine official actions,' and speak in broader terms about discussion, deliberation, and voting as all being the 'conduct of business.'"
 
He also noted the Oklahoma Supreme Court has said that because the Open Meeting Act was "enacted for the public's benefit," the statute "is to be construed liberally in favor of the public." (Int’l Ass’n of Firefighters v. Thorpe, 1981 OK 95, ¶ 7)
 
"As a result," Pruitt reasoned, "the state law term 'conduct of business' might well include discussions in which the members of the public body are considering information that will aid them in their decision-making, even though those discussions do not necessarily 'effectively predetermine their official actions' or cause the members to form a reasonably firm position on the matter at that moment.
 
"[H]owever, we do not believe that even a liberal construction of the term 'conduct of business' could include broad general matters that may be related to the business of the public body, but are not matters on which the public body could take action.
 
"A public body is thus engaged in the 'conduct of public business' when a majority of the members are considering discrete proposals or specific matters that are within the agency's jurisdiction."
 
For instance, Pruitt said, when at least two corporation commissioners are present at the same time at a legislative public utility hearing, the hearing is subject to the Open Meeting Act because they are "participating in discussions of discrete proposals regarding the regulation of a public utility, a matter within their jurisdiction."
 
"Citizens observing the commissioners at the public utility hearings could gain insight into how commissioners arrived at the decisions that affect their daily lives and an understanding of governmental processes," Pruitt said.
 
The Open Meeting Act would apply even if the two commissioners were "not present at the same time for the entire proceeding" or even if they had "chosen to informally 'drop in' on the same public utility hearing at the same time."
 
"Whether the Corporation Commission or another public body is engaged in the 'conduct of business' in other types of gatherings requires a consideration of the particular facts and circumstances," Pruitt emphasized.
 
As for other applications of the Open Meeting Act to the Corporation Commission, Pruitt said:

• Including meeting notices in utility bills, publishing them in newspapers, and posting them on a calendar in the lobby or other area of the Jim Thorpe Office Building fails to meet the statute's requirements.


• Minutes must record when commissioners are absent during portions of a meeting. Pruitt suggested using a notation such as "Commissioner A left the meeting" and "Commissioner A returned to the meeting" in the section of the minutes describing the matter under consideration when the commissioner left and returned. He said commissioners are absent when they are "not both visible and audible to the other members and the public."


• "Neither a court reporter's untranscribed verbatim notes nor transcript meet the Oklahoma Open Meeting Act's requirements for minutes of a public meeting."

Pruitt also said commissioners "may not post notice of and attend two separate meetings held in separate locations at the same time on the same day."
 
"As a majority of the Corporation Commission cannot be in two places at the same time, it is not possible for two 'meetings' to occur at the same time."
 
For example, notices and agendas might be posted for a commission meeting and a public utility hearing conducted by an administrative judge to be held at the same time in different locations. This would allow the commissioners "to move back and forth between the two meetings as they desired."
 
Pruitt called such a practice "misleading to the public."
 
"Rather than 'encourage and facilitate an informed citizenry's understanding of governmental process and governmental problems,' it would more likely confuse and frustrate citizens who wanted to observe the commissioners actions in both the commission meeting and the public utility hearing," Pruitt said. "The public would essentially have to follow the individual commissioners back and forth from place to place.
 
"An interpretation of the Open Meeting Act to allow posting of two sets of notices for meetings held at the same time on the same day but in different locations so individual commissioners can move back and forth between the two meetings as they desire does not attain or champion the spirit and purpose of 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.

VA comm'r wants to throw out state Open Meeting Act

A member of the state commission overseeing the Veterans Affairs Department wants to do more than meet socially with a majority of the board without public notice, which the state Open Meeting Act already allows.
 
Thomas Howell wants legislators to allow the War Veterans Commission to discuss the public's business in secret.
 
"I said just throw it all out and say commissioners can meet whenever they wanted to, to discuss the problem that you have so you can have an answer when you come to these meetings on the problems we are having to address now," Howell said.
 
Howell, who represents Disabled Veteran Americans on the board, said he has spoken with two state senators about proposing a bill allowing a majority of the nine-member commission to meet secretly without violating the Open Meeting Act.
 
The Oklahoman's article didn't identify which two senators might be considering such idiotic legislation. But another news outlet reported that Howell has spoken with Sen. Don Barrington, R-Lawton.
 
Howell's public comments were made Friday during a meeting in which the commission voted to remove "interim" from John McReynolds' job title as executive director of the state's Veterans Affairs Department.
 
Ironically, the commissioners interviewed McReynolds and another candidate during an executive session, which means the public was excluded from that part of the meeting.
 
But the Open Meeting Act prohibits the majority of a public body from meeting without posting advance notice and an agenda telling the public that such an executive session is scheduled. (Okla. Stat. tit. 25, § 303)
 
These requirements exist for good reason. As the state Court of Civil Appeals said in 2008:

The [Open Meeting] Act is designed to ‘encourage and facilitate an informed citizenry's understanding of the governmental processes and governmental problems. … The Act serves to inform the citizenry of the governmental problems and processes by informing them of the business the government will be conducting. (Wilson v. City of Techumseh, 2008 OK CIV APP 84, ¶ 10)

This includes the entire decision-making process, our state Supreme Court has said.
 
"The underlying goals of the 'open meeting laws' can not be seriously challenged. If an informed citizenry is to meaningfully participate in government or at least understand why government acts affecting their daily lives are taken, the process of decision making as well as the end results must be conducted in full view of the governed." (Oklahoma Ass’n of Municipal Attorneys v. Derryberry, 1978 OK 59, ¶ 10)
 
Or as an attorney general opinion later explained, "Public access to a mere 'rubber stamp' vote is all but useless." (1982 OK AG 212, ¶ 7)
 
Howell complained that the Open Meeting Act's requirements cause problems because more than four commissioners are members of the VFW and the American Legion. He apparently believes that the statute prohibits the majority of a public body from gathering at parties, dinners or other social events.
 
In 2007, however, legislators added language to the statutory definition of "meeting" to clarify that a majority of a public body may gather informally as long as "no business of the public body is discussed." (Okla. Stat. tit. 25, § 304(2))
 
But Howell's comments indicate that he believes commissioners should be able to discuss -- and essentially decide -- the public's business far from the prying eyes of the people they're supposed to serve.
 
Fortunately, Commission Chairman Richard Putnam seems to understand the purpose of the Open Meeting Act, saying:

My interpretation is we're not prevented from attending things like conventions where we are all members. We are just prevented from meeting as commissioners during those events. In psychology, we call it face validity. I think in order to have the public's trust we need to demonstrate we will not meet secretly.

The War Veterans Commission and the Veterans Affairs Department need to be building public trust. The agency has been criticized for a "series of premature deaths, abuse and neglect cases" at the seven nursing centers it operates. A former nurse's aid at the Veterans Center in Norman was convicted last week of one count of first-degree rape and two counts of forcible oral sodomy on patients.
 
In August, Gov. Mary Fallin requested an audit to review of the efficiency and effectiveness of the agency's management, the efficiency and effectiveness of the oversight of department operations, the reasonableness of expenditures, and a review of the expenditures of the department's administration for compliance with appropriate state statutes and regulations.
 
Howell of Duncan was one of eight new members appointed by Fallin to the commission in May. He had served on the commission previously as an appointee of Gov. Frank Keating in 1995.
 
Fallin, as a gubernatorial candidate in 2010, publicly said she expected her appointees to public bodies to abide by the Open Meeting and Open Records laws.
 
Fallin should emphasize that to Howell or replace him.
 

 
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. Differing interpretations of open government law and policy are welcome.
 

AG: Mug shots are public records whose release isn't an invasion of privacy

Police booking mug shots are public records that must be released in electronic format if kept that way by the law enforcement agency, Oklahoma Attorney General Scott Pruitt said in a formal opinion Thursday.
 
Because mug shots are public records, releasing them doesn't constitute an invasion of privacy even if the person was acquitted, Pruitt said.
 
Public access to mug shots became an issue in June when the Cleveland County district attorney's office briefly said the photos taken at the county jail would not be released to the public unless there was a legitimate "law enforcement purpose."
 
Assistant District Attorney David Batton justified the decision as protecting the privacy of innocent people who've been arrested and because the photos were being requested by publications that Batton apparently didn't like.
 
Batton also argued that releasing the mug shots could leave county officials vulnerable to lawsuits. He also contended that Oklahoma should abide by a federal appellate decision limiting the release of such photos under the federal Freedom of Information Act.
 
Cleveland County District Attorney Greg Mashburn reversed Batton's opinion about a week later and dismissed him.
 
Pruitt's opinion refuted Batton's arguments.
 
Mug shots are public because the Open Records Act requires law enforcement agencies to make available the descriptions of people arrested, Pruitt said. (See Okla. Stat. tit. 51, § 24A.8(A)(1))
 
"The inclusion of a picture within the term description has long been recognized by law," Pruitt said. "Because a mug shot is one of the best physical descriptions on an arrestee, it is a type of record that must be disclosed."
 
Pruitt said the mug shots must be given to "any person" who requests them. Electronic copies must be provided if requested and the law enforcement agency keeps the photos in that format.
 
An agency isn't required to convert the photos into an electronic format but may charge a reasonable fee for doing so, Pruitt said.
 
Simply releasing the photos "would not constitute an invasion of privacy because mug shots are public records, required by law to be disclosed upon request," Pruitt said.
 
"By itself, the act of disclosing a mug shot is not enough to constitute an invasion of privacy even if the person has been acquitted," Pruitt said. "This is because a mug shot taken during the booking process does not show that the person has been convicted of a crime but only that the person has been arrested and booked into jail.
 
"An invasion of privacy may occur when the disclosure of the mug shot is accompanied by a knowing or reckless false communication that the person in the mug shot has been convicted of a crime."
 
Pruitt emphasized that the opinion applies only to the mug shots of adults, not to confidential law enforcement records of juveniles. However, he noted that if the juvenile loses that confidential status, the mug shot is subject to the Open Records and his opinion.
 
The opinion was requested by Sen. Ron Justice, R-Chickasha, and State Sen. Jim Halligan, R-Stillwater.
 

 
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. Differing interpretations of open government law and policy are welcome.

OSU president refuses to release Chesapeake Energy-related emails, raising questions about his compliance with university's email policies, state law

OSU President Burns Hargis won't release emails on his university account that are related to his job as a member of the Chesapeake Energy Board of Directors, with officials telling The Daily O'Collegian and The Wall Street Journal that the messages are private under the state Open Records Act.
 
But that refusal raises questions about Hargis' compliance with OSU policies (and state law) barring the use of the university's computer system for commercial purposes.
 
Hargis told The Daily O'Collegian that he didn't violate the policy. But as the newspaper pointed out today, Hargis' refusal to provide copies "makes verification impossible."
 
A government ethicist told the newspaper that not releasing the emails raises a "red flag" indicating a potential conflict of interest between Hargis' jobs as OSU president and as a Chesapeake director for which he was paid a little more than $560,000 in 2011.
 
"This is what I call serving two masters," said Judy Nadler, a senior fellow in government ethics at the Markkula Center for ethics at Santa Clara University in California.
 
In May, a reporter for The Wall Street Journal requested Hargis' emails related to Chesapeake Energy Corp., apparently hoping they would shed light on operations by the nation's second-largest natural gas producer.
 
Chesapeake Energy's business practices have been under scrutiny since Reuters reported in April that CEO Aubrey McClendon had taken out up to $1.1 billion in unreported loans by using his stake in each of the company's wells as collateral.
 
OSU officials denied the reporter's request, saying that none of the 758 emails involved "the transaction of public business, the expenditure of public funds or the administration of public property."
 
The Daily O'Collegian made the same request in September. Same response.
 
Users of OSU's email services are put on notice "that under the Oklahoma Open Records Act all records that are created by, received by, under the authority of, or coming into the custody, control, or possession of the University or University officials presumptively are public records.
 
"Such records include messages stored in an electronic or magnetic format. All e-mail communications, therefore, unless subject to a specific statutory privilege, are subject to production under the Oklahoma Open Records Act and, when relevant, to discovery in civil litigation." (Use of Electronic Mail (Revised) (2002))
 
But OSU officials point to a 2001 attorney general opinion that said an email between government employees making lunch plans – if such use is permitted by the agency – generally would not be considered a public record because it would not be "in connection with public business, spending public money or administering public property." (2001 OK AG 46, ¶ 5 n.2)
 
So the questions are whether OSU policies permit using university email for Chesapeake Energy business and whether Hargis did so.
 
"No" is the answer to the first question.
 
OSU policies limit the use of email to furthering "the teaching, research, service, and extension goals and mission of the University." (Use of Electronic Mail (Revised) (2002))
 
"The use of university computing systems for commercial purposes is strictly forbidden," OSU's Use of Electronic Mail policy states. "The sending of electronic mail, which is commercial in character, is a violation of this acceptable use policy.”
 
Another policy states the university's "computing facilities, services, and networks may not be used in connection with compensated outside work for the benefit of organizations unrelated to the University except in connection with scholarly pursuits (such as faculty publishing activities) in accordance with the University consulting policy or the policy governing Access by External Entities to University Technology Resources, or in a purely incidental way.
 
"State law generally prohibits the use of University computing and network facilities for personal gain or profit, and use of computing resources for unauthorized commercial purposes, unauthorized personal gain, or any illegal activities is prohibited." (Appropriate Computer Use (1997))
 
The answer to the second question -- whether Hargis violated the policies (and state law) -- isn't clear.
 
Hargis told The Daily O'Collegian that he normally conducts Chesapeake business on his personal Gmail account and that he cannot control the email sent to his OSU account.
 
But he also refused to disclose the content of his OSU emails related to Chesapeake.
 
"If I'm not going to release the emails, I'm probably not going to talk about what they say," Hargis told The Daily O'Collegian.
 
Well, if they're only the equivalent of Hargis making lunch plans with Chesapeake officials, he would be better served by releasing the records.
 
Otherwise, relying upon a loophole in the Open Records Act raises suspicions that Hargis doesn't want to reveal the business of a for-profit corporation that was conducted over a taxpayer-funded email system in violation of university policy and possibly state 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.
 

Gov. Fallin's office says up to 2 months to respond to request for emails regarding health insurance exchange

Gov. Mary Fallin's spokesman said it will take as long as two month to compile emails that could shed light on why she refused to create a state health insurance exchange, The Oklahoman reported today.
 
Fallin will decide which emails she will keep from the public under a claim of executive privilege, Alex Weintz told the newspaper in a meeting Thursday.
 
He estimated that compiling the "hundreds of thousands” of emails covering six months will take 100-plus man-hours.
 
"This is a time-consuming, labor-intensive process, and right now we're processing the request and we haven't denied any documents," Weintz said.
 
Fallin's legal advisers will review the emails individually, but Fallin will decide which records will be considered privileged, Weintz said.
 
FOI Oklahoma and others have criticized Fallin's unprecedented claims of executive branch privileges in response to various records requests since the spring.
 

 
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.

Tulsa Co. board to vote again on horse racing after original agenda apparently violated Open Meeting Act

This time the public knows in advance that the Tulsa County Public Facilities Authority intends Thursday to vote to end live horse racing at Fair Meadows Racetrack.
 
That wasn't the case five weeks ago when the authority, also known as the Tulsa County fair board, unanimously voted without comment to end the racing even though the topic wasn't on its agenda.
 
That surprise decision led state Rep. Don Armes, R-Faxon, to ask Attorney General Scott Pruitt to investigate the process surrounding the closing of the racetrack.
 
The fair board's agenda for Thursday says public comment will be heard on ending live racing at the track and that the board will "consider and take action on ... cessation of horse racing activities...."
 
But being upfront now doesn't excuse the violation on Nov. 1. Subsequently ratifying an action or decision made in violation of the Open Meeting Act does not cure the violation, the Court of Civil Appeals first said in 1981. (Matter of Order Declaring Annexation, 1981 OK CIV APP 57, ¶ 23)
 
"The harm lay in the lack of proper notice and agenda, notice and agenda which are crucial to the Sunshine Law's purpose," the court said.
 
The Open Meeting Act clearly requires that each agenda "identify all items of business to be transacted" by the public body at the meeting. (OKLA. STAT. tit. 25, § 311(B)(1))
 
Agendas should be worded in "plain language, directly stating the purpose of the meeting, in order to give the public actual notice," the court has said. (Haworth Bd. of Ed. of Independent School Dist. No. I-6, McCurtain County v. Havens, 1981 OK CIV APP 56, ¶ 8)
 
The court said any act or omission that "has the effect of actually deceiving or misleading the public regarding the scope of matters to be taken up at the meeting" would be a "willful" violation of the Open Meeting Act. That includes any agency action exceeding the scope of action defined by the notice.
 
In 2009, the court said any construction of the statute that would allow a public body to consider an item not listed on its posted agenda – apart from "new business" – "totally vitiates the underlying mandate of the OMA to notify the public of the time and place of meetings of a public body, and the matters the public body intends to consider." (Okmulgee Co. Rural Water Dist. No. 2 v. Beggs Pub. Works Auth., 2009 OK CIV APP 51)
 
And the Oklahoma Supreme Court said more than 30 years ago that because the Open Meeting Act was "enacted for the public's benefit," the statute "is to be construed liberally in favor of the public." (Int’l Ass’n of Firefighters v. Thorpe, 1981 OK 95, ¶ 7)
 
Why? Because as the Court of Civil Appeals noted in 2008:

The [Open Meeting] Act is designed to ‘encourage and facilitate an informed citizenry's understanding of the governmental processes and governmental problems. … The Act serves to inform the citizenry of the governmental problems and processes by informing them of the business the government will be conducting. (Wilson v. City of Techumseh, 2008 OK CIV APP 84, ¶ 10)

So how could it be that the Tulsa County fair board -- whose membership includes all three Tulsa County commissioners -- take such a major action without having it on the agenda?
 
Armes was correct to call for an investigation into the fair board's proceedings leading to the Nov. 1 decision.
 
Let's hope that he and Pruitt follow through.
 

 
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.

FOI Oklahoma calls on Gov. Fallin to drop privilege claims, release records

 
Dear Gov. Fallin:

I am writing as president of FOI Oklahoma Inc. to express disappointment that you have withheld important records and emails you used in making decisions impacting the citizens of Oklahoma.

Your office has claimed at least three times recently that executive branch privileges allow you to hide records from public view.

This is disappointing because conducting government in secrecy defies the state's Open Records Act and frustrates the ability of citizens to understand basic functions of state government.

Your actions are puzzling because you signed a pledge on March 13, 2010, that you "will comply with not only the letter but also the spirit of Oklahoma's Open Meeting and Open Records Laws."

You also pledged to "support at every opportunity" the state's policy that "people are vested with the inherent right to know and be fully informed about their government so that they can efficiently and intelligently exercise their inherent political power."

Your legal advisers have claimed that records requested by various media outlets are protected by privileges that far exceed what the state Legislature and the state Supreme Court have granted government officials.

State courts have not recognized that executive privilege and deliberative process privilege exist under the state Constitution.

Your attorney, Steve Mullins, was quoted in The Oklahoman as saying your administration is "more open than anybody else has ever been."

Yet, you want privileges of secrecy that none of your predecessors thought was necessary.

I ask you to drop the executive privilege claims and release the records withheld under those claims.

Sincerely,

Lindel Hutson
President
FOI Oklahoma Inc. 

Former Kiowa trustee reinstated

A Kiowa trustee forced to resign because he failed to take required open government training is back on the board.
 
Kiowa trustees unanimously appointed Ray Goss to fill his former Ward 4 seat after he completed the training, the McAlester News-Capital reported.
 
Goss was forced off the board in late September, five months after the deadline for him to take the daylong training that includes municipal budget requirements, the Open Meeting Act, the Open Records Act, ethics, procedures for conducting meetings, conflict of interest, and purchasing procedures.
 
"It basically reduces liability issues for cities and towns because without training on municipal laws, officials who aren't trained can get into trouble," the Oklahoma Municipal League's executive director told the newspaper.
 
A 2006 state law requires newly elected municipal officials to undergo the training in their first year of office or they "shall cease to hold the office." (OKLA. STAT. tit. 11, § 8-114(A)(C)(E))
 
Goss was elected in April 2011.
 
When Goss was forced to resign, town attorney John Thomas said his votes and decisions by the board would have to be reviewed.
 
Thomas clearly didn't think Goss should be reinstated, telling the board in September that the purpose of the statute was not to be circumvented but to cause town officials to be responsible for their jobs.
 
"The statute was put into place for a reason," Thomas said. "I want our citizens of Kiowa to know that they are getting a government that respects both the intent of the law as well as the letter of the law."
 
"We need to follow the law," he said. "That was the intention of the legislature."
 
Rather than listen to Thomas, Kiowa trustees Janelle Beaver, Bob Ramey, Theresa Ortiz and Jim Ryan thumbed their noses at him and mocked the statute by appointing Goss to his old seat a month later.
 
Goss had not lived up to his obligations as a trustee and should have been replaced with someone who would.
 

 
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.

Open Records Act lawsuit filed against Muskogee County district attorney, who claims IT department cannot search emails for requested documents

The operator of an online news service filed a lawsuit Thursday accusing Muskogee County District Attorney Larry Moore of violating the Open Records Act by not producing documents concerning courthouse security and surveillance when they were requested.
 
Leif Wright's lawsuit also asks a judge to order Moore to provide requested emails on the subject.
 
Moore has told Wright's attorney that the IT department housing the emails cannot search them for the requested records.
 
In September, the Muskogee County Bar Association filed a complaint against Moore accusing him and others in his office of having access to live audio and video feeds of courtrooms while defense lawyers privately consulted with clients, the Muskogee Phoenix reported.
 
In October, Wright, who operates Muskogeenow.com, requested from Moore's office all records related to the recording of video and audio in the Muskogee County Courthouse.
 
Moore responded in a letter to Wright's attorney, Ronald E. Durbin II of Tulsa, that most of the records did not exist.
 
Durbin responded in writing that he found it "extremely difficult to believe that, given the nature of the controversy related to this issue, that no emails and/or text messages exist" and that he had reason to believe they did.
 
Moore subsequently provided a number of the documents.
 
However, in a Nov. 7 letter to Durbin, Moore said the District Attorneys Council Information Technology Division, which stores his office emails, "did not have the technological capability to conduct such [a] search for e-mails or text messages."
 
Wright's lawsuit contends that Moore's office does have the capability to search emails and asks a judge to order Moore to do so.
 
The lawsuit also accuses Moore of violating the Open Records Act by not providing documents when they were first requested.
 
Moore told the Muskogee Phoenix Thursday night that had not seen the petition but that he and his office had complied with Wright's request.
 
"We have given him what he has requested under the Open Records Act," Moore told the newspaper. "You can't give them what you don't have. We've searched the records to the best of our ability and have found nothing else."
 
But Wright counters in a column this morning:

Moore said he isn't obligated to give the public those public documents, since he has no way to search them.
 
We believe it is, however, his obligation to do so, and it stretches credulity to say that, in 2012, somehow emails are completely unsearchable.
 
The most basic home computer has the ability to search emails, why doesn't the agency in charge of making sure those emails get archived have the ability to search them once they're archived?

Darn good question.
 

 
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.

Gov. Fallin claims unprecedented constitutional privileges to hide records from public

Gov. Mary Fallin has claimed at least three times this year that privileges for the executive branch allow her to hide records from public scrutiny.
 
Most recently, she refused to release emails that could shed light on why she refused to create a state health insurance exchange, The Oklahoman reported Friday.
 
Fallin's general counsel, Steve Mullins, claimed the records are protected by executive privilege and deliberative process privilege, as well as attorney-client privileges far exceeding what state legislators and the Oklahoma Supreme Court have granted government officials.
 
On Fallin's behalf, Mullins also made such claims when refusing to release execution procedure-related documents to The Associated Press and denying various records to the Tulsa World.
 
However, Oklahoma courts have not recognized that executive privilege and deliberative process privilege exist under the state Constitution.
 
Instead, Mullins has attempted to conjure them by misconstruing state statutes and applying federal case law.
 
These privileges would turn the state Open Records Act upside down. Under the statute, the government official denying access must cite an applicable state or federal statutory exemption. But under these privileges, the burden would fall on Oklahomans to prove to a court that they should be allowed to see the government records.
 
These privileges would allow Fallin to claim secrecy for records that would be open to the public if in the hands of local officials because the Legislature has not deemed the information confidential.
 
Mullins told The Oklahoman that Fallin’s administration is "more open than anybody else has ever been."
 
But Fallin wants privileges of secrecy that apparently none of her predecessors thought was necessary.
 
As a gubernatorial candidate seeking public support, Fallin promised that she would "comply with not only the letter but also the spirit of Oklahoma’s Open Meeting and Open Records laws."
 
Fallin pledged to "support at every opportunity" the state's policy that "people are vested with the inherent right to know and be fully informed about their government so that they can efficiently and intelligently exercise their inherent political power."
 
But now, Fallin spokesman Alex Weintz says the governor does not believe the Open Records Act was meant to allow access to "conversations between executive branch employees working on draft documents, brainstorming on public policy ideas, offering advice and counsel to the governor, or otherwise acting in an advisory role."
 
"Eliminating the possibility of private dialogue inside the executive branch would damage the ability of the governor to design and implement good policy and would harm the public interest," he said.
 
Then why haven't such records been explicitly exempted by the state Legislature or such privileges written into the Oklahoma Constitution?
 
I urge The Oklahoman, Tulsa World, The Associated Press, other news organizations and public advocacy groups to challenge Fallin's claims in court. Otherwise, Fallin has unilaterally created her own exemptions to the Open Records Act.
 
Better yet, Fallin should quit claiming these privileges until Oklahomans grant them to her in the state Constitution. If she believes the public interest is best served by keeping these secrets, then she should persuade voters to give her the power to keep such information from public scrutiny.
 
I don't believe she would be successful. Oklahomans realize that if they are to meaningfully participate in their government and understand the governmental decisions affecting their lives, they must be privy to the deliberative discussions revealing why officials chose one alternative and rejected others.
 
A point that they should express to the governor now.
 
Because if Fallin has her way, her legacy as governor will be more government secrecy. Just the opposite of what she promised Oklahomans when she was asking for their votes.
 

 
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.

Court of Civil Appeals to decide if Oklahomans unharmed by violation may sue to enforce the Open Meeting Act

The state Court of Civil Appeals has refused to dismiss the appeal of an Open Meeting Act lawsuit against the Bartlesville Redevelopment Authority.
 
Joel Rabin and Sharon Hurst sued the BRTA in 2010, saying it purposefully misled the public about the purpose of an executive session earlier that year.
 
Associate District Judge Russell Vaclaw dismissed the lawsuit last November, ruling that Oklahomans may not sue to enforce the Open Meeting Act without having been specifically harmed by the public body's alleged violation.
 
Vaclaw said Rabin and Hurst made no claims that "their personal, contractual, or proprietary interests were affected by any decision by the BRTA in an executive session. Nor is there any specific claim of any specific class that they claim to represent."
 
The Open Meeting Act does not explicitly permit winning plaintiffs to recover attorney fees and court costs as the Open Records Act does.
 
Therefore, Vaclaw said, the Open Meeting Act "does not appear to allow for an avenue for a complaining party to simply complain that the government violated the OMA without showing any other harm to the individual."
 
Instead, the remedy for Oklahomans "who have no concern but that their government is working in the dark ... is a criminal prosecution for any willful violations," Vaclaw said. "If there was wrongdoing, charges could be filed or the matter may be presented to a grand jury.
 
"If the legislature intended to allow for a private remedy, then it is their responsibility to change the law, not this Court," he said. "To date, the legislature has not changed the remedies available under the OMA."
 
In an order dated Nov. 9, the Court of Civil Appeals gave Rabin and Hurst until Dec. 14 to file a brief addressing whether they have standing to bring a private right of action under the Open Meeting Act.
 
The BRTA will have until Jan. 11 to file its answer. Rabin and Hurst may file a reply by Jan. 31.
 

 
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.
 

State education board denies violating Open Meeting Act with incomplete agenda item

The state Education Board didn't violate the Open Meeting Act in September by omitting from the agenda the item of business that would be discussed in an executive session, a spokeswoman said Thursday.
 
The department's reasoning boils down to 'cause we say we didn't.
 
"We believe the actions of the Board, both with regard to posting and procedure, were in compliance with the Open Meeting Act. We are evaluating established processes of the Department to ensure they are and remain fully complaint with the law," said Tricia Pemberton in an email to Kurt Gwartney, KGOU news director.
 
Gwartney, who had questioned the vague agenda item, said Friday that he intends to bring a complaint to Oklahoma County District Attorney David Prater next week.
 
I explained in early October why the omission violates not only the wording of the Open Meeting Act but also conflicts with previous attorney general opinions and pronouncements by the current AG for the past year.
 
As Gwartney later noted, "The agenda item basically gave the reader absolutely no idea what the board would be discussing."
 
Let's hope Prater agrees that the board violated the Open Meeting Act and at the very least tells the board to change its ways.
 

 
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.

Attorney fees awarded in Open Records Act lawsuit against Yukon school district

A Canadian County judge recently awarded $18,000 in attorney fees and court costs to the plaintiffs who successfully sued Yukon public schools to obtain an investigative audit of the district's Future Farmers of America program.

Judge Gary E. Miller had ruled in June that the audit was not protected by attorney-client privilege because the district had not hired the outside investigator as an attorney.

The lawsuit filed by Randy and Debra Wright of Yukon in January also revealed a number of apparent Open Meeting Act violations by the Yukon Board of Education.


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.

Senate committee hears case for more transparency by state Legislature

The Senate Rules Committee on Tuesday heard why the Legislature should be more transparent in its operations and how open government laws apply to state lawmakers elsewhere.

Bills removing the Oklahoma Legislature's self-imposed exemptions from the state's Open Records and Open Meeting laws are expected this coming session from Republican Sen. David Holt of Oklahoma City and Rep. Jason Murphey of Guthrie.

Holt was responsible for the Senate hearing Tuesday.

Peter J. Rudy of Oklahoma Capitol Source urged senators to adopt the House practice of having standing conference committees with public meetings and votes on bills. Rudy's full comments can be read here.

News coverage of the hearing:

• Sean Murphy, Okla. Senate panel hears from opengovt. advocates, The Associated Press, SF Gate/San Francisco Chronicle, Nov. 13, 2012.
• Phil Cross, Critics want an open government, KOKH FOX 25, Nov. 13, 2012.
• Barbara Hoberock, Panel hears call for open government, Tulsa World, Nov. 14, 2012. 

Here are my prepared remarks to the committee:

Thank you for this opportunity to discuss with you the application of open government laws to the legislative process.

I will begin by pointing out that Oklahoma's Open Records Act starts with the following statement of principle:

As the Oklahoma Constitution recognizes and guarantees, all political power is inherent in the people. Thus, it is the public policy of the State of Oklahoma that the people are vested with the inherent right to know and be fully informed about their government.

The stated purpose of the Open Records Act is "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."

Similarly, the Oklahoma Open Meeting Act states, "It is the public policy of the State of Oklahoma to encourage and facilitate an informed citizenry's understanding of the governmental processes and governmental problems."

Those statutes eloquently declare important principles. As one author has noted, "A basic tenet of a healthy democracy is open dialogue and transparency."

I have heard previous legislative leaders claim that one Legislature may not legally bind future legislatures to the Open Records and Open Meeting acts. However, the Legislature has done just the opposite by explicitly exempting future legislatures from these statutes.

The Oklahoma Legislature appears to be one of only three in the nation to still be explicitly exempted from its state open records law. The other two are Massachusetts and Oregon.

In contrast, the open records statutes of our neighboring states -- Arkansas, Colorado, Kansas and Texas -- have been interpreted to include their respective state legislatures.

In at least 40 states, the legislature must abide by its open records law to at least some degree. Records of these legislatures are often open to the same extent as records of other public bodies.

Oklahoma’s Legislature also appears to be one of only eight nationwide to be explicitly exempted from its open meeting law.

In contrast, meetings of the state legislative bodies in Arkansas, Colorado, Kansas and Texas are opened to the public, to varying degrees, by either statutory or constitutional provisions.

I am told that some Oklahoma legislators are concerned that public notice of meetings is unworkable in four to five month sessions. However, other state legislatures operate under such a requirement.

• The Colorado General Assembly meets 120 days each year. Senate committees are expected to post at least one calendar day prior to the meeting a notice of the measures to be considered.
• The Texas Legislature meets only every two years for a maximum of 140 calendar days. Yet, its committees must give at least 24-hour notice of hearings on bills.

In all, state legislative bodies in 36 states must meet in the open to some degree because of a statutory or constitutional provision.

In Minnesota, for example, the legislature passed a statute that is separate from the state's Open Meeting Act and that requires all its meetings to be open. This includes the sessions and joint sessions of both chambers and meetings of standing committees, subcommittees, conference committees and legislative commissions.

Courts may not interpret or enforce the statute. Instead, each chamber adopts rules to implement it as well as the remedies for violations.

• The House and the Senate allow anyone to file a written complaint alleging a violation of the open meeting requirements. Under the House rules, the Speaker must investigate the complaint promptly.
• If the Speaker concludes that a violation may have occurred, the Speaker must refer the complaint to the Committee on Ethics for further proceedings.
• In the Senate, the written complaint is submitted to the Chairman of the Committee on Rules and Administration, who must immediately forward the complaint to the Subcommittee on Ethical Conduct.

Such an approach here could alleviate concerns that a separation of powers prevents the courts from enforcing the Open Meeting and Records acts against the Oklahoma Legislature.

Regardless of the approach in Oklahoma, a need to protect legitimate privacy and confidentiality concerns will preclude some records and meetings from being open to the public.

But legislators should strive for the greatest transparency while exempting only truly confidential information from disclosure.

In fact, medical records and similarly private information are already exempted from the otherwise public documents of state and local agencies.

In the context of legislative records, personal communications to a legislator in which a person exercises rights under the federal or state constitutions could be exempted from public disclosure. 

In fact, an exemption for personal communications exercising constitutional rights already exists under the Open Records Act.

But I would urge you not to exempt communications to a legislator from other government officials or from registered lobbyists.

As noted earlier, the purpose of Oklahoma's Open Meeting and Open Records laws is to ensure and facilitate the public's understanding of governmental processes and problems.

That understanding occurs best when the public observes frank and open discussions by its elected officials.

As our state Supreme Court said, "If an informed citizenry is to meaningfully participate in government or at least understand why government acts affecting their daily lives are taken, the process of decision making as well as the end results must be conducted in full view of the governed."

Exempting the Legislature from our state's open government laws diminishes the public’s role as a watchdog over the elected officials who most directly shape our state's policies and laws.

Without advance knowledge of what measures a government body will discuss and vote on, the public is deprived of its right to witness such decisions being made.

The public must have the opportunity to watch firsthand the debate in which alternatives are weighed, accepted or rejected. The reasoning of our elected officials is as important as their vote.

Implementing greater transparency at the state Legislature would help foster public confidence in this body and in state government overall.

As U.S. Sen. Russell Long noted in 1964:

A government by secrecy benefits no one. It injures the people it seeks to serve; it damages its own integrity and operation. It breeds distrust, dampens the fervor of its citizens and mocks their loyalty.

These principles are true whether the public body is a city council or the state Legislature.

When a legislature avoids open government laws, it doesn’t build the public's trust or confidence. Instead, it raises suspicion that corruption is occurring behind those closed doors.

It creates the appearance that back-room deals are being cut. 

Consider, for example, this Tulsa World editorial in January 2011, "Senators [and representatives] have nothing to fear from letting the public know what they are doing, unless they're doing something they don't want the public to know about."

Such secrecy also fosters incompetency and mediocrity.

Oklahomans expect their legislators to operate with the same public scrutiny required – rightfully so – of our other state and local officials.

Some 85 percent of Oklahomans believe the state Legislature should comply with the same open government mandate that applies to other public officials, according to a SoonerPoll released in March 2012.

The survey revealed overwhelming bipartisan support for removing the Legislature's exemptions from the Open Records and Meetings acts:

• 85 percent of Republicans,
• 84 percent of Democrats, and
• 93 percent of independents.

Some 85 percent of conservatives, 91 percent of liberals and 86 percent of moderates said they would support legislation to remove the exemptions.

Clearly, Oklahomans want you to abide by the Open Meeting and Open Records acts.

I will close by acknowledging that operating in the open is certainly not always the most convenient or easiest way to conduct the public’s business.

But in a democracy, it's the right way.

Thank you again for this opportunity.

An annotated copy of these comments is available 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.

OKC police vaguely cite irrelevant laws as excuse for hiding name of officer who fired gun near school

Oklahoma City police officials last week trotted out vague references to HIPAA, Oklahoma's mental health statutes, and federal regulations protecting alcohol and drug abuse patient records as excuses for not telling the public which officer fired his gun near a school while reportedly acting strangely at his home.

Those laws don't prohibit police officials from fully disclosing in the incident report the officer's name as well as the exact location and other details of what happened Sept. 27 near Santa Fe Elementary.

Concealing the information didn't stop The Oklahoman's reporter Bryan Dean from learning the name of the officer: Sgt. Chris Suriano.

Or keep Dean from learning Suriano's home address and speaking with neighbors who fear a cover-up and with school district officials who gave a markedly different account of the incident than provided by police.

But it has upset nearby residents who have children attending the school, Dean reported today.

"We can handle the truth a lot better than we can handle lies," neighbor Elvis Humphrey told Dean.

Police spokesman Capt. Dexter Nelson had said just days after the incident that the officer fired at least one gunshot into the floor of his home.

But a Moore School District official says the shots were fired outside the house about 2:45 p.m. that Thursday.

"There was a report of a man in a neighborhood that is just west of Santa Fe who had gone out on his front porch and shot off his gun a few times," the school district official told Dean. "Then he went back in his house, and a little later he did it again."

The elementary school and Highland West Junior High School were locked down about 30 minutes, the school district official said.

Dean reported that a heavily redacted police report mentions nothing about gunshots.

Nelson told Dean, last year's president of FOI Oklahoma Inc., that the report was redacted "according to Oklahoma State Mental Health Law Title 43A, Federal Regulation 42 CFR Part-2 (Public Health), HIPAA regulations, and other city and departmental policies."

Simply citing Title 43A, which contains the state's mental health statutes, is a sure sign that city officials know these laws don't restrict the information placed in police incident reports. Otherwise, the officials would have cited the specific statutory provision that does so.

The same is true of simply citing Federal Regulation 42 CFR Part-2 (Public Health), which protects the confidentiality of patient records in alcohol and drug abuse programs receiving federal funds. Nothing indicates that these regulations restrict the information that local law enforcement agencies place in their incident reports.

Claiming that the federal Health Insurance Portability and Accountability Act applies to police reports is absolute nonsense. The federal Department of Health and Human Services has clarified that police records aren't subject to HIPAA. Other legal authorities have long come to the same conclusion.

For example, Kentucky's attorney general in 2004 said HIPAA doesn't govern police reports, reasoning:

Because the Privacy Rule only applies to covered entities, a public agency to which a records request has been submitted must first determine if it qualifies as a health plan, a health care clearinghouse, or a health care provider which transmits any health information in electronic form in connection with a transaction covered by the Rule.

Only if the agency resolves this issue affirmatively must it proceed to a determination of whether the requested records contain protected health information that is subject to the Privacy Rule.

The Covington Police Department is neither a health plan, a health clearinghouse, nor a health care provider that transmits health information in electronic form in connection with a transaction that is subject to the Privacy Rule.

Records generated by police officers do not contain protected health information, even if those records reflect the officer's observations of an individual's medical condition, and such records are not governed by the Privacy Rule. The incidental delivery of emergency aid by a police officer does not transform the police officer into a health care provider since his primary function is the protection of public safety. Simply stated, HIPAA has no application to records generated by a police department in discharging its duty to protect public safety.

(Op. Att’y Gen. Ky. 2004-ORD-143, p. 6 (Aug. 24, 2004) (Open Records Decision))

Likewise, Texas' attorney general in 2004 said:

A police department is not a covered entity. ... In particular, it is not a covered health care provider because it is not a provider of [health] services ... or an entity that furnishes, bills, or is paid for health care in the normal course of business. ... Thus, a record created by a police officer, including a record that documents an officer's observation of the medical condition of an individual, cannot be protected health information subject to the Privacy Rule. Nor is health information the police department obtains through a Privacy Rule exception from a covered entity, such as a hospital, subject to the Privacy Rule. (Op. Att'y Gen. Tex. ORD-681 (Feb. 13, 2004))

Yet eight years later, Oklahoma City officials are claiming that HIPAA requires them to redact information from police reports.

Police Chief Bill Citty told The Oklahoman there is no effort to keep information from the public.

How can he say that?

Folks living in Suriano's neighborhood don't seem to believe him.

"The police are acting like it's no big deal," Sheryl Humphrey told the newspaper. "He was endangering a whole school full of elementary kids. It just makes it look like they are covering this up. If this was us, our address would have been put out there. Our names would have been released."

She is right. The name of anyone, but especially a police officer, who fires a gun near an elementary school should be in the incident report provided to the public.

(To read the earlier posting: OKC police refuse to identify officer who fired gun in his home, taken to hospital for mental health check)



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.

Agenda didn't explain why state education board would meet behind closed doors

Last week's meeting agenda for the state Board of Education omitted the item of business that would be discussed in executive session.
 
That omission violates not only the wording of the Open Meeting Act but also conflicts with previous attorney general opinions and pronouncements by the current AG for the past year.
 
It also robbed Oklahomans of their right to know what public business the board would be discussing behind closed doors.
 
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))

Similar wording can be found in the provision allowing executive sessions to discuss "matters pertaining to economic development ... if public disclosure of the matter discussed would interfere with the development of products or services or if public disclosure would violate the confidentiality of the business." (§ 307(C)(10))
 
"A vote to enter into executive session pursuant to [that provision] must also be an affirmation the public body has determined the executive session is necessary because 'public disclosure of the matter discussed would interfere with the development of products or services' OR 'public disclosure would violate the confidentiality of the business,'" Attorney General Scott Pruitt said in a formal opinion in November. (2011 OK AG 22, ¶ 5)
 
The vote to enter an executive session under the attorney-client privilege would require the same kind of public affirmation that a public discussion would "seriously impair the ability of the public body to process the claim or conduct a pending investigation, litigation, or proceeding in the public interest."
 
However, the state education board had no such discussion. Instead, the board simply voted to go into executive session. (Listen to the Sept. 27 audio starting at the 1:21.00 mark.)
 
The Open Meeting Act 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))

Unless those notice provisions "are strictly complied with," the Open Meeting Act prohibits public bodies from going into an executive session. (§ 307(E))
 
But the state Board of Education didn't list the specific investigation, claim or action to be discussed.
 
Instead, its agenda listed only the specific statutory authorization for the proposed executive session, stating under "Legal Services":

Discussion and possible action to Convene into Executive Session to discuss a pending investigation, claim, or action pursuant to 25 O. S. Section 307(B)(4)
(a) Convene into Executive Session
(b) Return to Open Session
(c) Possible action

The board took no action when it returned to open session.
 
In a 1998 written opinion, then-Attorney General Drew Edmondson emphasized that the statute says, "All agendas required pursuant to the provisions of this section shall identify all items of business to be transacted by a public body at a meeting, including, but not limited to, any proposed executive session for the purpose of engaging in deliberations or rendering a final or intermediate decision in an individual proceeding prescribed by the Administrative Procedures Act." (1997 OK AG 61, ¶ 2)
 
The bold italics were Edmondson's.
 
"Whether a matter pertains specifically to an executive session or not, the Oklahoma Supreme Court has stated that the Act requires that agendas must be worded in plain language, directly stating the purpose of the executive session," Edmondson said. (¶ 3)
 
He conceded that "a public body may be unable to maintain the confidentiality available in an executive session if it must state on the agenda the nature of the matter to be discussed in executive session." (¶ 4)
 
"Still, we note that for a public body to convene in executive session to discuss employment matters is not mandatory; it is simply 'permitted,'" said Edmondson. "While on the other hand a public body's duty to specify on the agenda all matters to be undertaken in a meeting is absolute. (Id.)
 
"In this light," Edmondson said, "it is quite evident that the word 'identify,' as used in Section 311(B), connotes a requirement by the Legislature that public bodies must provide the public with enough information on its agendas to allow the public to know the nature of an executive session discussion." (¶ 3)
 
Pruitt emphasized the same statutory requirements last November, saying public bodies cannot meet in executive session to discuss economic development unless they "give proper notice of the proposed executive session on the meeting agenda." (2011 OK AG 22, ¶ 5)
 
Even more to the point, Pruitt told a state agency a year ago that its 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)" under the attorney-client provision.
 
The meeting agenda should have listed the name of the parties in the lawsuit and a brief description of the litigation, Pruitt reportedly told the Commissioners of the Land Office.
 
In response, the agency's spokeswoman said, "In the future, we will list all parties of pending litigation."
 
At an open government workshop for public officials and others in Oklahoma City in November, Pruitt's top assistant 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.
 
"The public has a right to know what you are going to discuss in an executive session," said Rob Hudson, first assistant attorney general.
 
The agenda item should list information such as the name of the parties in the lawsuit, Hudson said.
 
"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."
 
Oklahoma courts have provided other guidance for interpreting the Open Meeting Act. For example, the Court of Civil Appeals has 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)
 
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)
 
Or as Hudson warned officials in November: "The Open Meeting Act is the law. Don't break the law."
 
Yet, the state Board of Education's agenda last week listed nothing more than the statute allowing the executive session. So much for the public's right to know what would be discussed behind closed doors.
 

 
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.