Friday, January 27, 2012

Okemah city attorney tells council that appointing new member is emergency and can be done even though agenda doesn't list such an action

The Okemah City Council appointed a new member Monday night even though such an action wasn't on the agenda, the Okemah News Leader reported.

Council members took that action after City Attorney Bruce Coker said they could declare an "emergency" based on the possibility of not having a quorum to conduct business at their next meeting if one was absent, the newspaper reported.

The five-member council was already down to four before the mayor resigned last week.

Monday night's agenda listed the "discussion and possible action to begin search and application process to appoint a new council member for Ward #2 to fill the vacancy created by the resignation" of the mayor.

The city had 60 days to fill the vacancy, the newspaper reported.

Ron Gott, who was elected mayor by his two colleagues at the start of the meeting, raised a concern that if one councilman were sick, the council would be without a quorum at a meeting and therefore unable to conduct business, the newspaper reported.

So instead of following the agenda, the council appointed Ken Lee, a resident of Ward 2, to fill the seat. Gott and Vice Mayor Lloyd Raimer voted for the appointment; Councilman Bobby Coplin opposed it.

The vote should not have occurred Monday night.

A public body cannot take an action unless it's on the agenda or meets the definition of "new business" -- assuming that the agenda includes "new business" as an item.

The Okemah City Council agenda didn't include "new business."

Even if it had, appointing a new councilman in this situation didn't meet the Open Meeting Act's definition of "new business."

The Okemah News Leader reported that City Manager Jerry Turner questioned whether the council could fill the vacancy because the agenda did not list the possibility of appointing a councilman.

According to the newspaper, Coker said the emergency clause usually applies to emergency meetings but could "overlap" in this area.

No, it couldn't. The Open Meeting Act 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))

The only exception is for "new business."

But the council could have called an "emergency meeting" once it adjourned the regular meeting.

The Open Meeting Act allows public bodies to call emergency meetings because of
a situation involving injury to persons or injury and damage to public or personal property or immediate financial loss when the time requirements for public notice of a special meeting would make such procedure impractical and increase the likelihood of injury or damage or immediate financial loss. (OKLA. STAT. tit. 25, § 304(5))
Therein lies another serious problem for the council.

There was no emergency that necessitated the council appointing a new member at that moment. The council should have called a special meeting for 48 hours later.

How would delaying the vote for 48 hours have increased "the likelihood of injury or damage or immediate financial loss"?

The council's next regular meeting isn't until Feb. 13.

The council should take note of a 2009 decision in which the Court of Civil Appeals said that acting on the advice of an attorney does not excuse a public body’s violation of the Open Meeting Act. (Okmulgee Co. Rural Water Dist. No. 2 v. Beggs Pub. Works Auth., 2009 OK CIV APP 51)

"Any construction of the OMA which would permit a public body's consideration of 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," the court said. (Id. ¶ 17)

The court considered the violation by the Beggs Public Works Authority to be "willful" and "conscious" even though its attorney had advised that a water purchasing contract "could be properly considered and approved as an unlisted item of 'old business.'" (Id. ¶ 18)

"The plain language of §303 [of the Open Meeting Act] mandates the posting of a notice of the matters to be considered at a meeting of a public body," the court said. (Id.)

"The failure of Beggs' governing board to post proper notice of its intent to consider the execution and approval of the water contract with Okmulgee, although based on advice of counsel, constitutes a 'willful,' 'conscious' violation of the OMA 'by those who know, or should know the requirements of the Act,'" the court said. (Id.)

How is the situation in Okemah any different?

Joey Senat, Ph.D.
Associate Professor
Oklahoma State University

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.

Thursday, January 26, 2012

Not all DHS commission committee meetings to be open to public

The Budget and Rules committees of the statewide commission overseeing the state Department of Human Services will meet publicly and comply with Open Meeting Act requirements, the Tulsa World reported Monday.

"We are a public agency serving more of the public than any other agency and need to be as open as possible. It's all about the public, not about us," said Brad Yarbrough, chairman of the Oklahoma Commission for Human Services.

That's a big step forward for a public body that wasn't too keen on open government until Yarbrough was appointed chairman by Gov. Mary Fallin in the fall.

But the story indicates that public notices and agendas won't be posted for two of the commission's six standing committees.

Yarbrough told the Tulsa World that the Special Review Committee and the Evaluation and Compensation Review Committee will be closed because of separate statutory exemptions for confidential child- and adult-welfare information and for considering pending personnel actions.

Why shouldn't public notice and agendas be posted for those committees as well?

This is especially true for the Evaluation and Compensation Review Committee, which seems to act as the commission's personnel committee.

Under the Open Meeting Act, a public body may meet in executive session to discuss "the employment, hiring, appointment, promotion, demotion, disciplining or resignation of any individual salaried public officer or employee." (OKLA. STAT. tit. 25, § 307(B)(1))

But such closed-door discussions may occur only if the executive session is listed with sufficient information on the publicly posted agenda and only after the officials vote in open session to go into executive session. (OKLA. STAT. tit. 25, § 311(B)(2)(a-c))

And an AG opinion requires that the names or unique titles of those employees be listed on the meeting agenda. (1997 OK AG 61, ¶ 5)

On Tuesday, I sent emails to DHS spokeswoman Sheree Powell and Diane Clay of the state Attorney General's Office asking whether another state statute requires the evaluation committee to meet without posting public notice and an agenda.

They haven't responded.

Yarbrough had told the Tulsa World his first action as chairman was to contact Attorney General Scott Pruitt's office for help.

"I asked for help in determining what might be the best process for building and posting the agenda," he said. "They are now reviewing those before they are posted to ensure we are complying with the Oklahoma Open Meeting Act.

"Because the commission was being looked at by the district attorney of Oklahoma County for alleged violations of the Open Meeting Act, I felt it was very important to work with officials outside the agency to make sure we are doing things by the law."

That's commendable.

But more openness is called for.

In lieu of a state statute requiring complete secrecy, all the commission's committees should meet publicly and follow the Open Meeting Act requirements for entering into executive sessions.

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.

Tuesday, January 24, 2012

Plaintiffs appeal Washington County judge's decision that Oklahomans aren't entitled to sue to enforce Open Meeting Act unless specifically harmed by alleged violation

Oklahoma's Supreme Court is being asked to decide if residents may sue to enforce the state Open Meeting Act without having been specifically harmed by the public body's alleged violation.

Joel Rabin and Sharon Hurst are appealing a Washington County judge's dismissal of their lawsuit alleging an Open Meeting Act violation by the Bartlesville Redevelopment Authority.

In November, Associate District Judge Russell 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."

Vaclaw reiterated that ruling in another decision on Jan. 3.

Vaclaw ruled that plaintiffs suing under the Open Meeting Act must demonstrate they "were directly harmed by the wrongful actions of a government in violation of the OMA."

The statute "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," he said.

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."

Rabin and Hurst alleged that the BRTA purposefully misled the public about the purpose of its Aug. 11, 2010, executive session.

The agenda for the meeting said the closed-door session would be to "Discuss Pending and/or Impending Investigations, Claims or Actions Affecting the BRTA." However, the agenda did not identify the specific item of business to be discussed in the executive session.

And in an e-mail sent a day earlier, BRTA Downtown Development Director Patrick Treadway told the seven members of the authority:
You will note that the first item on the agenda is an Executive Session which seems to indicate an investigation. There is not an investigation. This is on the agenda to allow Dan to give you information which he believes you need to have for future projects. Dan purposefully provided the language for this agenda item.
Dan is BRTA attorney Dan McMahan of Oklahoma City.

The lawsuit also uncovered that despite an Open Meeting Act requirement, the BRTA did not keep minutes of its executive sessions.

Vaclaw did not rule on whether the BRTA violated the Open Meeting Act. Instead, he decided that Hurst and Rabin had no right to sue.

Vaclaw relied upon the state Supreme Court's three-part test in Holbert v. Echeverria, 1987 OK 99, ¶ 8, for determining if a private cause of action can be inferred from a regulatory statute:
  1. The plaintiff is one of the class for whose special benefit the statute was enacted;
  2. There is some legislative intent, explicit or implicit, suggesting that the legislature wanted to create a private remedy; and
  3. Implying a remedy would be consistent with the underlying purposes of the legislative scheme.
Applying the test, the court in Holbert said private individuals had no right to sue for a violation of the state's Consumer Protection Act. The home buyers were not part of a class of persons for whose "especial benefit" the statute was enacted, the court said.

It explained that adopting "a broad construction for establishing a class would render the first factor ... virtually meaningless. When a statute is created for the benefit of the public at large, no special class is created in its wake simply because a remedy for injured persons is fashioned." (Id. ¶ 9) The court reasoned:
It is difficult to think of a term broader or more general than "consumer." Every individual, regardless of one's occupation, does in some respect occupy on a daily basis the status of consumer. Because everybody stands included, the term "consumer" does not describe any special class, but rather the public at large. Inasmuch as the Act is for the benefit of the general public, no special class is established for whose especial benefit it was created. (Id. ¶ 10)
Vaclaw noted that after the Holbert ruling, state legislators amended the Oklahoma Consumer Protection Act "to expressly provide for a private right of action."

Attorneys for Rabin and Hurst had pointed to a string of Oklahoma appellate court decisions involving plaintiffs suing public bodies over alleged Open Meeting Act violations.

But Vaclaw said that in all those cases, the plaintiffs "had some specific statutory, contractual or proprietary interest which allowed them to seek specific relief in those particular situations."

He agreed that the Open Meeting Act "exists for the benefit of the general public."

"But that does not grant a right to every individual citizen to sue the government body in civil court every time they believe the government violated the OMA," he said.

"If the legislature intended to allow for a private remedy, then it is their responsibility to change the law, not this Court," he said.

Yes, the Legislature could resolve the issue this session by explicitly stating that Oklahomans have a private right to sue to enforce the Open Meeting Act.

I receive a steady stream of complaints about Open Meeting Act violations -- a number of which have been publicized on this blog. Unfortunately, police and district attorneys have shown little interest in pursuing complaints of government officials breaking this law.

But our legislators have the power to remedy this problem. Please clearly give your constituents another tool to enforce a law intended "to encourage and facilitate an informed citizenry’s understanding of the governmental processes and governmental problems."

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.

Monday, January 23, 2012

Cash prizes to be awarded in FOI essay contest for Oklahoma college students

Oklahoma college students are invited to enter FOI Oklahoma’s second annual freedom of information essay contest.

Any college student may enter by writing an essay of about 500 words on one of the following topics:
  • How have you used Oklahoma’s Open Meeting and Open Records laws to encourage and facilitate an informed citizenry’s participation in government?

  • How do violations of Oklahoma’s Open Meeting and Open Records laws by public universities and colleges diminish public confidence in higher education?

  • Are Oklahoma’s Open Meeting and Open Records laws adequately enforced to protect the public’s need to know?
Students should research the topic as well as write creatively and personally.

Entries must be typed and double-spaced.

Essay winners will be recognized and receive their prizes during FOI Oklahoma’s fifth annual Sunshine Week Conference on March 10 in Oklahoma City.

Winning essays will be distributed at the conference and published on FOI Oklahoma’s website.

Entries must be received by 5 p.m., Feb. 22.

E-mail entries as attachments to Joey Senat, OSU School of Media & Strategic Communications, at

Each entry must include at the top (single-spaced) the STUDENT’S:
  • Name
  • School
  • Mailing address
  • Phone number
  • Email address
If you have questions about the contest, please contact Joey Senat at (405) 744-8277 or

No more electronic records from county clerks if state legislator, some clerks have their way

Oklahoma's county clerks would no longer have to provide electronic records in that format, under a House bill filed Thursday.

House Bill 2605 is from Rep. Gus Blackwell, a Republican representing the Oklahoma Panhandle.

The bill amends a 1989 statute applying to county clerks by adding, "Nothing in this section shall require the clerk to provide any record by electronic means."

That covers a lot of important public records. County clerks keep the records of proceedings of the county commissions, county excise boards, county boards of equalizations and county boards overseeing tax roll corrections.

County clerks also keep records of the receipts and expenditures by county governments, including the payroll for all county employees and all claims for payment for goods and services.

And they keep land records such as plats, deeds, oil and gas leases, real estate liens, and other liens against property in the county.

I'm told that county clerks are mad at oil companies and at private companies that buy large amounts of land records to sell on websites. That threatens the clerks' "copy money" they use to run their offices.

But public records aren't supposed to be money-makers for government agencies.

Twenty years ago, the Oklahoma Supreme Court said that for computer tapes, the "reasonable, direct costs" for copying should be "based upon the cost of materials [and] labor needed for providing the computer program and service to produce the requested data." (Merrill v. Oklahoma Tax Comm’n, 1992 OK 53, ¶13)

And since 2000, a $5 fee has been added to each land instrument recorded with each county clerk solely to "increase the net funding level available to the county clerk to maintain and preserve public records." (OKLA. STAT. tit. 28, § 32(D))

The "County Clerk's Records Management and Preservation Fund" is "for the purpose of preserving, maintaining, and archiving recorded instruments including, but not limited to, records management, records preservation, automation, modernization, and related lawful expenditures." (OKLA. STAT. tit. 28, § 32(C))

For those of you just joining the 21st century, let me explain that access to records in an electronic format increases significantly the public’s ability to make sense of government information. The format is as critical as the disclosure itself because the format can render the data very useful or practically useless.

Without access to computerized government records from county clerks, Oklahomans will lose a meaningful way to oversee a great deal of government activity.

House Bill 2605 is a bad idea that should be buried.

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.

Wednesday, January 18, 2012

Senate bills would require more openness by state Legislature

A Republican state senator says the Legislature should comply with the same open government laws that other state agencies and local governments must follow.

"I spent five years serving in the Oklahoma City government, where we were subject to the Open Meetings and Open Records Acts," said Sen. David Holt of Oklahoma City. "I believe it is time the Legislature embraced these acts."

Holt has introduced Senate bills 1243 and 1244, which remove the Legislature's self-imposed exemptions from the Open Meeting and Open Records acts respectively.

Not bad for a guy about to start only his second legislative session.

Meanwhile, Rep. Jason Murphey is drafting a bill that would create a separate open records and meeting statute for the Legislature. In November, Murphey oversaw a House interim study on the application of open records and meetings laws to legislative proceedings.

The Guthrie Republican requested the study after his bill requiring the Legislature to abide by the Open Meeting and Open Records laws died in a House committee during the last legislative session.

The new legislative session begins Feb. 6.

Holt's 1243 would require the full Senate and House and their standing committees to comply with the Open Meeting Act but only during regular and special sessions.

During the legislative interim, the committees would conduct open meetings in accordance with rules adopted by each house.

But why not conduct such meetings under the Open Meeting Act regardless of whether the Legislature is in session?

Ironically, Holt was one of seven members of the Senate’s eight-member delegation to the Joint Legislative Water Committee who met secretly in December to see if they could agree on legislation to allow the sale of water to out-of-state interests, The Journal Record reported Tuesday.

Under SB 1243, political caucuses could remain closed, but public notice of the meetings would be required at least 12 hours in advance. Legislators couldn't vote on pending legislation during a caucus unless the meeting was open to the public.

Holt's 1244 would add the Legislature to the Open Records Act. Under current law, only the Legislature's financial records are public. (OKLA. STAT. tit. 51, § 24A.4)

SB 1244 would specifically require records relating to legislation filed for consideration in a particular session to be open beginning on July 1 following a regular session and beginning 21 days following a special session.

But access to those records would benefit the public more during the session when the legislation at issue is being considered.

Under the bill, the names of registered lobbyists and of public officers acting in their official capacity would be available in the records. But legislative officials could redact the names of other people, including those of public employees acting pursuant to the Whistleblower Act.

The bill would make public only those records related to legislation filed for the 2013 regular session and afterward.

Holt told the Tulsa World that he thinks the Legislature should be ashamed if it made itself subject to the Open Records and Open Meeting laws, only to begin carving out exemptions that could water down the statutes for all public bodies.

"I think Republicans ran on the kind of principles that are enshrined in the Open Meeting and Open Records acts," he said.

"It is just hard for me to imagine a Republican elected official standing up and saying in public he can't support this type of transparency, but we shall see and the process will play out."

While I believe Holt's bills could be a bit stronger, they still represent another opportunity for our state legislators to live up to the same principles of openness and transparency rightfully expected of other public servants.

I commend him for challenging the status quo at the state Capitol.

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.

Tuesday, January 17, 2012

Newspaper editorial's right on message but wrong on law

I sincerely appreciate the basic message of The Oklahoman's editorial on Monday that police departments must follow the state Open Records Act.

The editorial, however, indicates that release of incident reports is subject to judicial review under the Open Records Act.

It is not.

The Open Records Act requires law enforcement agencies to make incident reports and other specified information available for public inspection. (Okla. Stat. tit. 51, § 24A.8(A)(1-8))

Police departments are given no leeway regarding these records.

Law enforcement agencies may deny access to other records "except where a court finds that the public interest or the interest of an individual outweighs the reason for denial." (Okla. Stat. tit. 51, § 24A.8(B))

Contrary to the editorial, that is not a step that police have skipped. The burden is on the person seeking the records to ask a court to rule in favor of access.

The problem in Edmond and elsewhere involved police departments claiming that incident reports are part of investigatory files that may be withheld from the public at the discretion of the law enforcement agencies.

Incident reports are not part of such investigatory files.

As Attorney General Scott Pruitt recently agreed, the Open Records Act clearly distinguishes between incident report information that must be made available for inspection when requested and investigatory files that may be closed to the public

The Open Records Act states, "Access to records which, under the Oklahoma Open Records Act, would otherwise be available for public inspection and copying, shall not be denied because a public body or public official is using or has taken possession of such records for investigatory purposes or has placed the records in a litigation or investigation file." (Okla. Stat. tit. 51, § 24A.20)

As Pruitt agreed, incident reports must be made available to the public when requested.

The Open Records Act does not empower law enforcement agencies to ask a court to block public access to incident reports.

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.

Monday, January 16, 2012

Employee records of EMSA ambulance drivers should be subject to the state's Open Records Act

The Tulsa World requested from EMSA the full names, dates of birth, job applications, disciplinary actions and other identifying information on paramedics and EMTs following a fatal accident involving an EMSA ambulance in Oklahoma City on Dec. 10.

EMSA provided first and last names, hire dates and medical license numbers for 518 employees of Paramedics Plus -- a private contractor used by EMSA to hire the paramedics and EMTs, perform background checks and maintain the employee records.

But Parmedics Plus refused to provide other employee information, saying such records are private and not subject to the Open Records Act.

However, that information should be subject to the state Open Records Act under a series of attorney general opinions applying our open government laws to private nonprofit and for-profit corporations.

Here's why:

The Emergency Medical Services Authority is a public trust authority of the Tulsa and Oklahoma City governments. It manages ambulance services for more than 1 million people in the two cities and surrounding areas.

EMSA says nearly three-quarters of its operating budget comes from patient billing revenues.

But cities provide the rest either directly through general fund allocations or indirectly through a fee placed on residents' utility bills. For example, the agency receives about $4.8 million a year from a monthly utility-bill fee paid by Tulsans, the Tulsa World reported.

EMSA owns the 89 ambulances, which cost up to $150,000 each.

The public agency knows the names of employees who drive its ambulances but doesn't possess the job applications or records of disciplinary actions, an EMSA attorney told the Tulsa World.

Those records are in the hands of Paramedics Plus, a wholly-owned subsidiary of East Texas Medical Center (ETMC), based in Tyler, Texas. (ETMC is a not-for-profit organization that operates the nation's second-largest rural EMS system with a service area spanning more than 17,000 square miles, according to the EMSA website.)

EMSA's Board of Trustees apparently didn't include in its contract with Paramedics Plus a provision treating the employee information as open records to the same extent as those of government employees.

Even so, a series of attorney general opinions indicates that those employee records are subject to the personnel provisions of the Oklahoma Open Records Act.

A 1981 opinion said the statute applies to private nonprofit corporations that "have entered into contractual arrangements with municipalities to operate or maintain public property for and on behalf of such municipalities...." (1981 OK AG 184, ¶ 7)

Such corporations "have been entrusted with the affairs of government," the opinion said. "Especially is this so where the contract vests discretion in the nonprofit corporation to possess and operate public property for a joint purpose of the municipality and the nonprofit corporation." (Id.)

This ruling applied to the records "pertaining to the operation or maintenance of public property," the opinion said. (Id. ¶ 10) (emphasis added)

"To find otherwise would permit public officials to abdicate to private parties their duties with respect to keeping records concerning such matters and would place such records beyond the reach of interested members of the public desiring to become informed upon matters pertaining to the operation and maintenance of public property," the opinion said. (Id.) (emphasis added)

It concluded:
Where a municipality has contracted with a nonprofit corporation to operate public property, records pertaining to the operation, maintenance or improvement of such property or the administration or performance of the contract are public records open for public inspection, even though such records may be kept and maintained in the custody of the nonprofit corporation.
Subsequent attorney general opinions have said for-profit and nonprofit corporations can also be subject to the Open Meeting Act.

A 2002 opinion explained:
Although private for-profit and non-profit organizations are not mentioned in the [Open Meeting Act] definition of public body, that does not necessarily prevent the Act from applying to private organizations. There are at least two situations in which a private organization will be subject to the Act: (1) if the private organization is a "subordinate entity" which exercises actual or de facto decision-making authority on behalf of a governmental body; or (2) if the private organization is "supported in whole or in part by public funds or entrusted with the expending of public funds, or administering public property." (2002 OK AG 37, ¶ 2) (emphasis added)
While those opinions focused on whether the corporations were "supported in whole or in party by public funds," that is only one of three qualifiers found in both statutes.

To be a public body under the Open Meeting Act, the entity "must have one of three characteristics:
  1. it must be supported in whole or in part by public funds;
  2. it must be entrusted with the expending of public funds; or
  3. it must administer public property.”

    (2002 OK AG 5, ¶ 7 (citing OKLA. STAT. tit. 25, § 304(1)).
(See also 2002 OK AG 42, ¶ 3 ("The Silver Haired Legislature, as a group of individuals working on a specific project or general goal, would be considered a public body within the definition of the Open Meeting Act if (1) it is 'supported in whole or in part by public funds or entrusted with the expending of public funds, or administering public property,'; or (2) it is a 'subordinate entity' created by a public body and exercises actual or de facto decision-making authority on behalf of that public body.") (emphasis added))

Likewise, under the Open Records Act, a public body must be
  1. Supported in whole or in part by public funds, OR
  2. Entrusted with the expenditure of public funds, OR
  3. Entrusted with administering or operating public property.

    (OKLA. STAT. tit. 51, § 24A.3(2))
This doesn't mean that, as a 2002 attorney general opinion acknowledged, the records of all companies selling goods or services to government are subject to the state's open government laws. (2002 OK AG 37, ¶ 17)

But Paramedics Plus employees have been entrusted with operating the publicly owned ambulances on behalf of a public agency, EMSA. Therefore, their personnel files should be subject to the provisions of the Open Records Act.

Oklahomans are entitled to know and should know who these employees are, their qualifications and any disciplinary actions taken against them.

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.

Saturday, January 14, 2012

Norman councilman is first 2012 candidate to sign FOI Oklahoma's Open Government Pledge

Norman Councilman Tom Kovach has renewed his support for open government as he seeks another two-year term in the city's municipal election on April 3.

Kovach, 49, is the first candidate in a 2012 election to sign FOI Oklahoma's Open Government Pledge.

He also signed the pledge when he ran for re-election to the Ward 2 seat in 2010.

Freedom of Information Oklahoma Inc. invites all candidates for municipal offices this spring to sign the pledge to uphold the letter and spirit of the state's Open Meeting and Open Records laws.

Instructions and a list of signers for the 2011 elections can be found on FOI Oklahoma’s Web site,

This past summer, Kovach's fellow council members approved his proposals to make Norman city government more transparent.

Under what became Norman's first records retention policy, all city emails and other records must be
"retained for at least 1 year unless there is pending litigation, in which case it will be retained for at least 2 years after the ultimate disposition or the resolution of the litigation."

Also, all committees, sub committees and ad hoc committees must abide by the state Open Meeting Act
and a state statute requiring that notices and agendas for regularly scheduled meetings be posted on the public body's website.

Kovach said that provision covers advisory committees, even those appointed by the mayor, regardless of whether they have actual or de facto decision-making power.

By signing the Open Government Pledge, candidates promise, "I and the public bodies that I am elected to govern will comply with not only the letter but also the spirit of Oklahoma's Open Meeting and Open Records laws."

They also promise “to support at every opportunity 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 so that they can efficiently and intelligently exercise their inherent political power.”

FOI Oklahoma began the Open Government Pledge in spring 2008 as part of a national effort to spur public commitments to government transparency from candidates for president down to city council contests.

Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications

Tuesday, January 10, 2012

Please support FOI Oklahoma by becoming a member

You can continue and expand the valuable work that FOI Oklahoma does each year to uphold the public's right to know.

January is Membership Month for FOI Oklahoma, and I am inviting you to renew your financial support.

Annual dues for individuals are only $30, but you can also select the $50 category. The student category is just $15.

Further, we ask you to ask your employer if the organization or company can support the work of FOI Oklahoma with a larger membership. The categories are:
  • $150 for Academic, Public or Government Organizations;
  • $250 for Non-Profits (e.g., Professional Associations and Non-Commercial Media); and
  • $500 for For-Profits (e.g., Companies and Commercial Media)
Print the membership form, complete the form with your information, and mail it to the address at the top of the form.

While you are writing down things to remember to do, note the upcoming dates:
  • March 10: The Sunshine Conference, to be held at the OPUBCO. Nominations for the various awards given at the Sunshine Conference are due Feb. 21st.

  • Oct. 31: The First Amendment Congress, to be held at the University of Central Oklahoma.
Please let me know if you have any questions or concerns about your financial support of FOI Oklahoma.

If you have already sent in your membership for our new fiscal year (calendar 2012), thank you very much, but please reach out to others you know and encourage their support.


Karen Holp
General Manager, KGOU Radio
Membership Chair, FOI Oklahoma

Monday, January 9, 2012

AG to police: Incident reports must be open for public inspection

State Attorney General Scott Pruitt wants police to know that initial incident reports may not be withheld from the public as part of investigatory files.

"The state Legislature has made it clear in this regard that a police department's initial offense report or 'cover sheet' should be open for public inspection, regardless of its inclusion in an investigation file," Pruitt said in a letter being distributed to local departments.

FOI Oklahoma Inc. asked Pruitt in late November to notify police departments that incident report information must be released when requested.

The Edmond Police Department and others in the state were refusing to provide incident reports, claiming they were part of files that wouldn't be released until investigations were completed.

That reasoning is at odds with the Oklahoma Open Records Act, which clearly distinguishes between incident reports and investigatory files. The statute states:
A. Law enforcement agencies shall make available for public inspection, if kept, the following records:

1. An arrestee description, including the name, date of birth, address, race, sex, physical description, and occupation of the arrestee;
2. Facts concerning the arrest, including the cause of arrest and the name of the arresting officer;
3. A chronological list of all incidents, including initial offense report information showing the offense, date, time, general location, officer, and a brief summary of what occurred;…”
(OKLA. STAT. tit. 51, § 24A.8(A)(1-8))
The statute also states:
Access to records which, under the Oklahoma Open Records Act, would otherwise be available for public inspection and copying, shall not be denied because a public body or public official is using or has taken possession of such records for investigatory purposes or has placed the records in a litigation or investigation file.
(OKLA. STAT. tit. 51, § 24A.20)
The state Legislature drew a clear distinction between incident report information that must be made available for inspection when requested and investigatory files that may be closed to the public, argued FOI Oklahoma Inc.

FOI Oklahoma's complaint wasn't the only one received by Pruitt regarding access to initial incident reports.

Pruitt said that during open government workshops this fall, his staff heard of police departments withholding the reports or delaying release "for up to a week after the incident occurred."

In Pruitt's letter Wednesday to the Oklahoma Association of Chiefs of Police, he urged the organization to discuss the Open Records Act provisions "with police chiefs and law enforcement officers across the state to ensure they are aware of the statutes and can avoid unintended complications...."

The association will forward the letter to local police departments, Pruitt's spokeswoman Diane Clay said Sunday.

Such an explanation shouldn't be necessary because the Open Records Act is clear in this regard.

But Thank You to Pruitt for telling police to abide by the law.

Pruitt is a member of the FOI Oklahoma Inc. Board of Directors. The nonprofit is a statewide coalition advocating for open government.

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.

Wednesday, January 4, 2012

FOI Oklahoma seeks nominations for First Amendment, freedom of information awards for 2011

Nominations are open for FOI Oklahoma’s awards recognizing individuals and organizations that promoted the First Amendment and the free flow of information to the public in 2011.

FOI Oklahoma also recognizes those who opposed dissemination of public information with its Black Hole Award.

The Ben Blackstock Award is presented to a non-governmental person or organization that has shown a commitment to freedom of information. The Sunshine Award goes to a public official or governmental body that has shown a commitment to open meetings and open records.

FOI Oklahoma also recognizes an Oklahoman who has promoted education about or protection of the individual rights guaranteed by the First Amendment with its Marian Opala First Amendment Award. The award is named for the late Oklahoma Supreme Court justice, a Polish immigrant who exemplified a belief in First Amendment rights.

All four awards will be presented during the Sunshine Week conference March 10 in Oklahoma City. The local conference is in conjunction with national Sunshine Week, March 11-17.

The deadline for nominations for all four awards is Feb. 21.

Nominations must include a letter of no more than 250 words justifying why the person or organization is deserving of the award.

Nominations may be made via e-mail to or mailed to FOI Awards, PO Box 5315, Edmond, OK 73083-5315.

Last year, the Opala Award was presented to Joann Bell, who had served as the executive director of the American Civil Liberties Union of Oklahoma since 1988.

This is the fifth year for the open government awards. The 2010 winner of the Blackstock Award was The Oklahoman. The Sunshine Award was presented to state Rep. Jason Murphey, R- Guthrie.

The Black Hole Award went to state Rep. Randy Terrill, R-Moore.

FOI Oklahoma is a statewide not-for-profit founded in 1990 to educate the public on the First Amendment and openness in government.