State Supreme Court refuses to stay judge's order releasing hospital surveillance video that led to arrest of police officers

Oklahoma Supreme Court justices on Tuesday unanimously denied a district attorney's request to delay enforcement of a judge's order releasing a video showing a confrontation in a local hospital emergency room between four Bartlesville police officers and a handcuffed patient.
 
The one-line order isn't surprising given that the Bartlesville Examiner-Enterprise received a copy of the hospital surveillance video in March and posted it online.
 
However, Washington County District Attorney Kevin Buchanan's appeal of District Judge Curtis L. DeLapp's ruling remains alive.
 
Buchanan had asked DeLapp to suspend his order against the Bartlesville police so Buchanan could appeal it. DeLapp refused, saying that Buchanan had no standing because the order didn't apply to him.
 
The city attorney and Buchanan had argued that the video was not public because mental health proceedings are confidential. The patient was the subject of an emergency detention order under mental health proceedings.
 
But DeLapp said the video "does not depict the administration of mental health treatment, mental health treatment information or the receiving of mental health treatment."
 
DeLapp noted that even if the video did contain such information, the patient had provided the newspaper with a waiver of his rights to confidentiality.
 
The city and Buchanan also contended that the video was not public under the state Open Records Act because it is not listed among the law enforcement information that must be released.
 
DeLapp rejected that argument, holding that the video contains "facts concerning the arrest and cause for the arrest" of the two police officers.
 
DeLapp ruled that the hospital surveillance video was a record that came into the custody of Bartlesville police "in connection with the transaction of public business, i.e. the investigation of crimes committed within its jurisdiction."
 
"In particular, the Court finds that the videotape(s) would include the cause of the arrest," he ruled.
 
In late April, the state Supreme Court denied Buchanan's petition declaring he has the right to appeal DeLapp's decision. But the one-line order agreed to by all the justices didn't offer an explanation. And Buchanan already had appealed the order releasing the video.
 
The 44-minute video shows a confrontation in a local hospital emergency room between four Bartlesville police officers and a handcuffed young man who had been brought to the hospital after expressing "suicidal thoughts."
 
The video has no audio. It shows the man "being pushed, choked, slapped and kneed by officers," the newspaper said.
 
"On the other hand, the patient appears to be constantly making verbal assaults and, in one instance, appears to spit at the officers," the newspaper reported. "There are instances, however, when each of the officers appears to react to something the man says or does — resulting in rough treatment of the patient.
 
"An especially disturbing episode on the video shows an apparent retaliatory confrontation with the man by [officer Sonya Jean] Worthington — who is seen punching, kneeing and twisting the head of the victim. The attack goes on for nearly a minute before one of the other officers intervenes," the newspaper reported.
 
Worthington and fellow Bartlesville police officer Stacy Charles Neafus were charged with assault and battery on Dec. 1. They and a third officer, Carey Duniphin, were fired in mid-January. A fourth officer, Josh Patzkowski, was placed on administrative leave following the incident but has returned to active duty, the newspaper reported.
 

 
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.

Okla. Supreme Court assigns new judge to sealed records case

District Judge Ray Dean Linder won't be the one deciding if a felony perjury case remains sealed.
 
The Oklahoma Supreme Court reassigned the case Thursday from Linder to Grady County District Judge Richard Van Dyke, the Enid News & Eagle reported this afternoon.
 
Linder blocked public access to the records the same day the charge was filed against attorney Eric Edwards in May.
 
Linder gave no reason other than he was the judge in the case and "because in my professional opinion it deserved to be sealed."
 
Linder also told the newspaper at the time that the case would "remain sealed until I say it shouldn't be sealed."
 
The newspaper on Tuesday filed two motions aimed at unsealing the case file.
 
The case also will be prosecuted by a new district attorney, the newspaper reported.
 

 
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 Stephen Jones threatens newspaper with legal action for reporting on sealed case

The Enid News & Eagle's attempt to unseal court records has drawn threats of legal action by Enid attorney Stephen Jones.
 
Jones is representing Eric Edwards, the Enid attorney whose charge for felony perjury the newspaper is trying to open for the public to see.
 
The newspaper filed two motions on Tuesday seeking to unseal the records closed by District Judge Ray Dean Linder in May.
 
In reporting on the motions Wednesday, the newspaper noted that a letter from Jones had been hand-delivered and faxed to the newsroom less than 45 minutes after he had declined to comment for the story.
 
In the letter, Jones said, "The publication of a newspaper story about matters that are under seal may result in contempt citations against the newspaper, the reporter personally, and their sources."
 
However, the newspaper is under no gag order from the judge that would prohibit it from reporting on the case having been sealed and its attempt to open the file.
 
Jones sent another letter following Wednesday's story. He accused the newspaper of engaging in a "journalistic assassination" of Edwards and of "bullying."
 
He also wrote:

We are evaluating, as counsel for one of the parties in interest, whether the newspaper, its anonymous source, and the reporters have violated the Court’s Order, and thus subject to contempt, punishment, and liable for violation of Mr. Edward’s civil rights. The sanction available against their likely source is unique to him.

How the newspaper could have violated the judge's order and Edwards' civil rights isn't clear.
 
For example, the charge against Edwards was originally posted to On Demand Court Records, a state court records database. The newspaper reported that its subsequent request to the Major County court clerk for an affidavit in the case was denied on the grounds the case records had been sealed.
 
The case was removed from ODCR that afternoon, but not before the newspaper grabbed a screen capture of the case.
 
Best known for serving as Timothy McVeigh's lead defense, Jones is the one guilty of bullying. Kudos to the Enid News & Eagle editors and reporters for not kowtowing to 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.

Attorney calls reporter to stand, tries to exclude her from courtroom during testimony of other witnesses

Bigheart Times Publisher Louise Red Corn recently found herself being called to testify during a preliminary hearing that she was covering and then having to defend her right to be in the Osage County courtroom.
 
Red Corn reported that she hadn't been subpoenaed by defense attorney Gentner Drummond and hadn't witnessed the alleged assault at issue in the hearing.
 
Red Corn told Special District Court Judge Stuart Tate that Drummond's announcement of her as his witness was no more than a ploy to prevent the newspaper from covering the public hearing.
 
Red Corn and Drummond had a run-in nearly a year ago when she questioned why an entire Osage County divorce case, including the names of the couple, lawyers and judge, had been closed to the public. Even the order sealing the case was closed.
 
Drummond was the attorney who had sought the closure. The case file was opened after Red Corn justifiably raised hell over the secrecy.
 
He wasn't any more successful in keeping Red Corn out of the courtroom during the preliminary hearing earlier this month.
 
In Red Corn's story on the hearing, she noted that Drummond was acting as defense attorney for his cousin, Thatcher Drummond, who is charged with assaulting a state trooper, escape from arrest and a half-dozen misdemeanors, ranging from DUI and possession of marijuana to running a stop sign.
 
She also noted that Thatcher Drummond's family "is among the wealthiest in Osage County, owning tens of thousands of acres on which they run cattle and wild horses, in addition to having other businesses."
 
At the beginning of the hearing, Gentner Drummond asked the judge to exclude witnesses from the hearing. Then, he announced that he was going to call Red Corn as a witness and asked the judge to tell her to leave the courtroom.
 
Good luck with that.
 
After Red Corn's objection, Drummond and First Assistant District Attorney Mike Fisher spent 10 minutes with the judge in his chambers. Drummond emerged to announce that he was withdrawing his request and that he would "invite Ms. Red Corn to sit through these proceedings and take copious notes."
 
She did.
 
When it was her turn to testify, Red Corn said she hadn't interviewed the trooper or his superiors. The morning after the incident, she had gone to the Sheriff's Office to ask about it, had seen the trooper there and made a comment to him about an injury under his eye. The trooper didn't say a word to her, Red Corn testified.
 
Thatcher Drummond was bound over for an arraignment. A pre-trial date was set for Aug. 16.
 
Wonder if Gentner Drummond will try to keep her out of that courtroom as well?
 

 
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.

Newspaper seeks to open court records sealed by district judge

The Enid News & Eagle filed two motions Tuesday in Major County District Court to unseal the records of a felony perjury charge filed against an Enid attorney in May.
 
District Judge Ray Dean Linder blocked public access to the records the same day the charge was filed against attorney Eric Edwards.
 
Asked why he had sealed the case, Linder gave these reasons:

• "Because in my professional opinion it deserved to be sealed.


• "Because I am the district judge and I believe all persons are presumed innocent until their guilt is proved beyond a reasonable doubt by a qualified jury or judicial process.


• "My personal opinion, my professional opinion, my 50 years of experience as an attorney."

But Tuesday, the 71-year-old judge denied knowing about the felony case against Edwards.
 
"I don't know what case you're referring to," he told the newspaper.
 
When Linder was told the case name again, he asked: "Is that a sealed case? I mean, are we playing games here?"
 
When the newspaper asked if he knew of a felony perjury case against Edwards, Linder said, "I have heard some rumors about it, I guess, but I have no direct information since the case is sealed and I don't have access to the records."
 
In the newspaper's story published today, News & Eagle Publisher Jeff Funk raised serious questions about why Linder had become involved in the case.
 
"It appeared the charge against Eric Edwards was assigned to a Major County judge to hear, but a judge came in from another county, took over this case immediately and sealed it," Funk said. "Why such extraordinary behavior?"
 
Linder presides over Oklahoma's 4th Judicial District, Division 1, which covers Alfalfa, Dewey, Major, Woods and Woodward counties. But his courtroom is in Woods County.
 
Linder had told the newspaper that the case would "remain sealed until I say it shouldn't be sealed."
 
But the Enid News & Eagle sought Tuesday to intervene in the case for the purpose of filing a motion to unseal the case record and to lift Linder's order sealing the case.
 
In the motions filed on behalf of the newspaper, Oklahoma City attorney Michael Minnis contended that Linder had failed to follow the proper procedures for closing a court record.
 
District judges are required to give adequate public notice that the closure might be ordered, provide interested parties an opportunity to object before deciding to seal the records, and state their reason along with specific findings supporting the decision.
 
The U.S. Supreme Court has said judicial documents are presumptively open to the public and may be sealed only if that right of access is outweighed by a compelling need to protect higher interests. (See, e.g., Nixon v. Warner Communications. Inc., 435 U.S. 589, 597, 55 L. Ed. 2d 570, 98 S. Ct. 1306 (1978))
 
Thank you to Funk and the News & Eagle for standing up for the public's right of access.
 

 
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.

Canadian County judge rules Yukon Public Schools must provide copy of investigative audit; Open Records Act lawsuit reveals apparent Open Meeting Act violations by school board

An investigative audit of the Yukon Public Schools is not protected by attorney-client privilege, a Canadian County judge ruled Friday.
 
The district had not hired investigator Mark Patzkowski in his capacity as an attorney, Judge Gary E. Miller said in granting summary judgment for the plaintiffs in an Open Records Act lawsuit against the district.
 
Miller gave the district 30 days to file a motion for a stay of his order if it chooses to appeal his decision.
 
The open records lawsuit, filed in January by Randy and Debra Wright of Yukon, revealed apparent Open Meeting Act violations by the Yukon Board of Education, including that the:

• School board members decided through a series of non-public, individual private conversations with the superintendent to hire someone to investigate the school district’s FFA program.


• School board didn't publicly post its consent docket;


• Meeting agenda for May 2, 2011, did not provide the public sufficient actual notice that the board intended to hire Patzkowski to conduct an investigation; and


• Meeting agendas for Aug. 1, Aug. 23 and Oct. 3, 2011, did not identify items of business for executive sessions to discuss personnel, negotiations and litigation.

As an expert witness for the Wrights, I was given copies of the depositions of Yukon Public Schools Superintendent William Earl Denton and of Yukon Board of Education members Suzanne Cannon, Jeffrey Deckard, David Gene Moore, John Nail and Karen Youngblood.
 
I also reviewed school board meeting agendas and minutes for May 2, 2011; Aug. 23, 2011; Sept. 6, 2011; Oct. 3, 2011; and Nov. 7, 2011.
 
The Wrights had requested Patzkowski's audit of the school district's Future Farmers of America program. Denton denied the request, claiming it fell under attorney-client privilege.
 
But Denton said in his deposition that he did not consider the hiring of Patzkowski to be the hiring of an attorney for the district.
 
"I hired Mr. Patzkowski to be an investigator. And it really wasn’t even in my thought process about he also being an attorney," testified Denton. "What I thought we were hiring him for were his services as a fraud investigator."
 
Denton testified that he did not consider Patzkowski's reports to be confidential under an attorney-client privilege until seeing that the reports were labeled as such.
 
Board Member John Nail testified that Patzkowski had been hired as an attorney "to investigate it so we can improve our vo-ag program. That was the extent of the investigation."
 
Denton also testified that the Yukon Board of Education members decided through a series of private conversations with him prior to April 8, 2011, to hire someone to investigate the school district’s FFA program.
 
Denton testified that he had spoken individually with the school board members by telephone or in person about the hiring of an investigator and that to the best of his recollection, "all the board members were in favor of securing an outside investigator."
 
Denton testified that following those conversations with the individual school board members, he signed a contract with Patzkowski on behalf of the district on April 12, 2011.
 
Nail's testimony supported Denton's account of a decision being made through conversations with individual members prior to April 12, 2011, and separate from a public meeting.
 
"[Denton] told us he was going to hire an attorney to represent us, to investigate the program," Nail testified. "So it had to be before he [Denton] signed the contract because he told us he was going to go find someone."
 
However, the Oklahoma Open Meeting Act prohibits members of a public body from reaching a decision through a series of non-public discussions.
 
"Informal gatherings among a majority of the members to decide on any course of action or to vote on any matter is prohibited by the Act," the Oklahoma Supreme Court said in 1980. (Berry v. Bd. of Governors of Registered Dentists, 1980 OK 45, ¶ 12)
 
This means that one member of a public body may not obtain a consensus upon an item of business through a series of private one-on-one meetings, according to a 1981 Oklahoma Attorney General Opinion. (1981 OK AG 69, ¶ 17)
 
"Permitting a single member of the governing body to obtain a consensus or vote of that body by privately meeting alone with each member, would be to condone decision-making by public bodies in secret, which is the very evil against which the Open Meeting Act is directed," said the opinion.
 
"The Open Meeting Act's prohibition against this type of decision making is not dependent upon whether a majority of the members of a governing body gather together at the same place at the same time in the presence of each other," the opinion said. (Id. ¶ 18)
 
In contrast to Denton's description of private conversations, Board Member David Gene Moore testified that the board gave Denton permission during an executive session to enter into a contact with Patzkowski.
 
"I do not know when it was discussed, but I'm sure it was done in an executive session," Moore testified.
 
If true, then the Yukon Board of Education violated the Open Meeting Act because it is not statutorily authorized to vote in an executive session. The statute also requires that each member's vote "be publicly cast and recorded." (OKLA. STAT. tit. 25, § 305)
 
At an open government workshop for public officials in November, the Oklahoma Attorney General's Office warned public bodies not to even take "straw polls" in executive sessions.
 
Denton and Board Members Jeffrey Deckard, Nail and Karen Youngblood testified that the board approved the hiring of Patzkowski during the regular meeting on May 2, 2011.
 
However, they conceded that the meeting agenda contained no separate item listing a discussion and possible action on hiring Patzkowski to investigate the school district's FFA program.
 
Instead of being listed on the publicly posted meeting agenda, an encumbrance to Patzkowski was approved by the board as part of the consent agenda that had not been publicly posted.
 
The Open Meeting Act, however, contains no provision allowing for a separate consent agenda that is not publicly posted.
 
Under the statute, "All agendas … shall identify all items of business to be transacted by a public body at a meeting." (OKLA. STAT. tit. 25, § 311(B)(1))
 
Without proper notice on an agenda, a 2000 Oklahoma Attorney General Opinion emphasized, "the public is deprived of its right to be present and to know when decisions affecting the public are being made." (2000 OK AG 7, ¶ 27)
 
Denton testified that Patzkowski presented a preliminary report to the Yukon Board of Education during an executive session held during a special meeting on Aug. 23, 2011. He was unsure of the date when the final report was presented.
 
The five board members, even after reviewing several of their meeting agendas, were unsure or had no idea of the dates for the executive sessions when Patzkowski had presented his preliminary and final reports to them.
 
The inability of the board members to know from reading their own agendas what they had discussed in executive sessions further illustrates violations of the Open Meeting Act's requirements regarding agendas.
 

 
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.

Sperry school district won't honor standing requests for records

Sperry school officials won't respond to requests for board agenda packets or other documents until after the records are created, Superintendent Brian Beagles recently told Neighbor News.
 
The district's legal counsel advised Beagles that the state Open Records Act doesn't require the creation of any records in response to a record request, Beagles told a Neighbor News editor who had requested the board's agenda packet.
 
"Accordingly, there were no documents responsive to your request at the time of the request and your 'standing' request is not allowed by Oklahoma law," Beagles said.
 
"The District will, of course, respond to your or any person's request in a timely manner for documents after they come into existence," he said.
 
Beagles has refused to provide the school board's agenda packets to the public until the day after the meetings.
 
Now, Beagles says the public cannot request the packets in advance.
 
He said the legal counsel, presumably the Tulsa law firm of Rosenstein, Fist & Ringold, told him that "no law ... requires the Sperry School District or any other public body in Oklahoma to respond to a standing request as to documents that are not in existence or in its custody when the requestor issues its 'standing request'."
 
The Open Records Act says it "does not impose any additional recordkeeping requirements on public bodies or public officials." (Okla. Stat. tit. 51, § 24A.18)
 
The Neighbor News editor didn't ask Sperry school officials to create documents. Instead, he asked to inspect the school board's agenda packet once it was created, which it would be.
 
The purpose of the Oklahoma 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." (Okla. Stat. tit. 51, § 24A.2)
 
The Open Meeting Act emphasizes that this state's public policy is "to encourage and facilitate an informed citizenry's understanding of the governmental processes and governmental problems." (OKLA. STAT. tit. 25, § 302)
 
"The Act serves to inform the citizenry of the governmental problems and processes by informing them of the business the government will be conducting,” said the Court of Civil Appeals in 2008. (Wilson v. City of Techumseh, 2008 OK CIV APP 84, ¶ 10)
 
Beagles, aided by Rosenstein, Fist & Ringold, is doing his damnedest to thwart the public's right (obligation) to know and have some say on Sperry school board decisions before they're a done deal.
 
Blame it on the Sperry school board: President Jeff Carter, Vice President Gary Juby, Clerk April Bowman, Derrell Morrow and Mechelle Beats.
 
They're the ones letting Beagles get away with it.
 

 
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.

Delaware County district attorney refuses to prosecute Open Meeting Act violations in Bernice

The Bernice Board of Trustees won't face criminal charges over several Open Meeting Act violations detailed by a state audit in April, Delaware County District Attorney Eddie Wyant's office said last week.
 
"Basically, after we have looked at what we've got here, it appears that the things that they did were under the advice of their counsel, and that in our opinion makes it difficult to find that it was a willful violation," Wyant's first assistant told the Tulsa World
 
"We don't necessarily agree with their counsel, but it certainly mitigates against it being a willful violation," said Ben Loring.
 
But that excuse ignores a long line of contrary opinions by Oklahoma courts.
 
In 2009, the Court of Civil Appeals said acting on the advice of an attorney did 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)
 
The court said the violation by the Beggs Public Works Authority, "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.'" (Id. ¶ 18)
 
The court quoted from a 1984 ruling in which the Oklahoma Supreme Court said, "Willfulness does not require a showing of bad faith, malice, or wantonness, but rather, encompasses conscious, purposeful violations of the law or blatant or deliberate disregard of the law by those who know, or should know the requirements of the Act." (Rogers v. Excise Bd. of Greer County, 1984 OK 95,¶ 14, 701 P.2d 754, 761)
 
That reasoning was adopted from a 1981 Court of Civil Appeals decision in which the lower court said that even a vote taken in "good faith" could be found to be a willful violation. (Matter of Order Declaring Annexation, 1981 OK CIV APP 57, ¶¶ 24-25)
 
"If willful is narrowly interpreted, if actions taken in violation of the Act could not be set aside unless done in bad faith, maliciously, obstinately, with a premeditated evil design and intent to do wrong, then the public would be left helpless to enforce the Act most of the time and public bodies could go merrily along, in good faith, ignoring the Act," the Court of Civil Appeals explained. (Id. at ¶ 26)
 
"While we discern no bad faith, malice, or wantonness, and while the officials may not have consciously broken the law, we are well-convinced that they knew or should have known the Act's requirements and blatantly or deliberately disregarded the law," the court concluded in that case. (Id. at ¶ 30)
 
So should the Bernice Board of Trustees have known the law? In at least one instance, they were warned by a resident that an executive session would be illegal under the particular circumstances. But they did it anyway.
 
Keep in mind, too, that since 2005, all municipal officials elected for the first time must undergo training that includes the Open Meeting Act's requirements and prohibitions. (OKLA. STAT. tit. 11, § 8-114(A))
 
Violating the Open Meeting Act is a misdemeanor punishable by up to a $500 fine and one year in the county jail.
 
As a penal statute, the Open Meeting Act must be strictly construed, the Oklahoma Court of Criminal Appeals said in 1992.
 
"Any cause of action based upon such a statute must be clear and without a doubt," the court said. "Statutes which create and provide penalties for criminal offenders must be sufficiently explicit so persons of common intelligence may understand their provisions and so that their meaning does not require speculation," the court said. (State v Patton, 1992 OK CR 57, ¶ 3)
 
In Bernice, the state auditor's office found instances between July 1, 2008, and June 30, 2011, in which the town trustees had unquestionably violated the Open Meeting Act by:

• Discussing contracts of independent contractors in executive session;
• Not taking minutes of executive sessions;
• Not listing the statutory authorization for executive sessions or listing the wrong one;
• Not including the names or unique titles of employees to be discussed in executive sessions as well as not identifying the "specific purposes of the sessions – whether employment, hiring, appointment, promotion, demotion, disciplining, or resignation";
• Voting in an executive session; and
• Discussing the creation of a job, rather than hiring a specific person, in executive sessions. (A violation that was pointed out on this blog last April.)

These aren't violations of new requirements or prohibitions under the Open Meeting Act. And, as the audit pointed out, the Oklahoma Court of Civil Appeals has said:

The Open Meeting Act is not obscure or incomprehensible. On the contrary, anyone with ten minutes to spare can read the whole thing and understand virtually every word. Each member of a covered public body should have taken that ten minutes [sic]. Lack of familiarity is no excuse. (Matter of Order Declaring Annexation, 1981 OK CIV APP 57, ¶18 )

But in Delaware County, public officials' ignorance of the Open Meeting Act is being excused.
 
Loring also gave one more reason why Bernice trustees wouldn't be prosecuted for robbing the public of their right to an open government: It did not appear that any of the trustees personally benefited from the violations described in the audit.
 
"Our attitude would be a whole lot different if there is personal gain from it," Loring told the Tulsa World.
 
When did that become a requirement for prosecution of an Open Meeting Act violation?
 
Personal gain wasn't apparent, or mentioned, when the Muskogee County district attorney prosecuted Boynton town trustees in 2010 for Open Meeting Act violations.
 
The state Court of Criminal Appeals has said criminal intent need not be proved because the conduct is illegal by virtue of the Open Meeting Act. In other words, a crime exists because the statute deemed the conduct to be wrong. (Hillary v. State, 1981 OK CR 78, ¶ 5)
 
The Open Meeting Act also doesn't require prosecutors to prove injury to establish a prima facie case of a violation, the court said. (Id. ¶ 8)
 
Wyant's excuses for not prosecuting are frustrating for the public not only because they ignore the law but also because a Washington County judge has said Oklahomans may not sue to enforce the Open Meeting Act without having been specifically harmed by the government body's alleged violation.
 
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," said Associate District Judge Russell Vaclaw said in November.
 
But Wyant's refusal to prosecute blatant violations underscores the need to create an independent state authority with the expertise and willingness to pursue violations. Oklahomans simply cannot rely on local district attorneys to consistently do the essential job of protecting an open government.
 
In 2008, the Court of Civil Appeals said: "The 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)
 
However, that purpose is defeated when district attorneys shrug off violations of the Open Meeting Act.
 

 
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.