Oklahoma earns 'F' for public access to government information

Oklahoma's Open Records Act received a failing grade and ranked 33rd nationally in a recent national study of public access to government information.
 
Connecticut ranked first with an 89 percent "B+" grade, according to the State Integrity Investigation.
 
Oklahoma scored 54 percent.
 
The score probably should have been lower because the state received 100 percent for having a right of appeal if access to a record is denied.
 
The only appeal is to file a lawsuit, which the survey described as "a risky proposition which is both time-consuming and expensive," or ask a district attorney to enforce the statute.
 
South Carolina was "faulted" for having the same "weak legal structure." It ranked last with an overall score of 22.
 
South Carolina received zero points for the absence of a formal appeals process when a record is denied. Oklahoma received 100 percent under the same question.
 
However, Oklahoma received zero percent for not having a government "agency or entity that monitors the application of access to information laws and regulations."
 
Likewise, Oklahoma received zero percent for not having an agency that "independently initiates investigations" and "imposes penalties on offenders."
 
Also read: Oklahoma gets F on open government survey, by Bryan Dean, The Oklahoman, 7.28.12
 

 
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.

DHS commission still using vague agenda items for meetings despite DA's warning to be more specific

DHS' attorney said 10 months ago that agenda items for meetings of the statewide commission overseeing the agency would be more specific when major policy changes are contemplated.
 
So much for that assurance, according to a story in The Oklahoman today.
 
Last month, Commissioner Michael Peck presented a lengthy proposal to close a Pauls Valley residential center for developmentally disabled adults under an agenda item labeled "property committee report," the newspaper reported.
 
The head of a nonprofit concerned with the future of the Southern Oklahoma Resource Center said Peck had assured him that he "would not be presenting anything" regarding its closure at the meeting.
 
Surprise!
 
Peck told the newspaper he didn't try to mislead the SORC Parent Guardian Association and hadn't planned to make the presentation.
 
"I did not know I was going to say anything about my idea until the moment came," Peck said.
 
Peck and Commissioner Brad Yarbrough, who was still commission chairman in June, claim the state Open Meeting Act wasn't violated because no action was taken.
 
WRONG!
 
The purpose of the Open Meeting Act is "to encourage and facilitate an informed citizenry's understanding of the governmental processes and governmental problems." (OKLA. STAT. tit. 25, § 302)
 
As such, the statute requires agendas to include "the subject matter or matters to be considered." (OKLA. STAT. tit. 25, § 303)
 
The state Supreme Court has said agendas must "be worded in plain language, directly stating the purpose of the meeting . . . [and] the language used should be simple, direct and comprehensible to a person of ordinary education and intelligence." (Andrews v. Indep. Sch. Dist. No. 29 of Cleveland County, 1987 OK 40, ¶ 7)
 
"To require otherwise would defeat the purpose of the Act," the unanimous court said. (Id.)
 
And because the Open Meeting Act was "enacted for the public's benefit," the statute "is to be construed liberally in favor of the public," the court said in 1981. (Int’l Ass’n of Firefighters v. Thorpe, 1981 OK 95, ¶ 7))
 
The state Court of Civil Appeals said the purpose of the Open Meeting Act "to encourage and facilitate an informed citizenry's understanding of the governmental processes and governmental problems . . . is defeated if the required notice is deceptively worded or materially obscures the stated purpose of the meeting." (Haworth v. Havens, 1981 OK CIV APP 56, ¶ 8)
 
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, the court said. (Id. ¶ 10)
 
Or as a 1980 attorney general opinion said:

The Open Meeting Act must be given a construction, which will effectuate and not subvert the intention of the Legislature in facilitating an informed citizenry’s right to participate in government and understand why government acts affecting their daily lives are taken. (1980 OK AG 215, ¶ 12)

And at an open government workshop nearly three years ago, public officials were cautioned not to use "cryptic" agenda language.
 
"Don’t try to hide items of business by putting it under 'report,'" warned Gay Tudor, who was then the chief of the Attorney General's General Counsel Section.
 
The Attorney General's Office prefers for such reports "to have bulleted points for items under the report," said Tudor.
 
Contrary to that advice, the June 12 agenda for the Oklahoma Commission for Human Services has seven items listing nothing more than "report."
 
The commission's agenda materially obscured the scope of matters that would be considered. It failed to give the public actual notice of what would be discussed. Members of the Parent Guardian Association were denied the opportunity to hear for themselves Peck's plan to close the center.
 
Aside from what the Open Meeting Act requires, vague agenda items are just not good government. As another author has noted, "A basic tenet of a healthy democracy is open dialogue and transparency."
 
But DHS commissioners seem hell bent on keeping Oklahomans in the dark.
 
After complaints last summer that the commissioners were violating the Open Meeting Act, Oklahoma County District Attorney David Prater warned them that there are no minimal violations.
 
"Oklahoma's laws on openness in government serve an important and noble purpose," Prater wrote. "Those of us privileged enough to serve the public and who are thereby bound by those laws must demonstrate through our actions and attitudes the utmost respect for those laws and the principles they serve."
 
Prater specifically warned the commission not to use "future agenda items which are phrased very vaguely and have imbedded within them massive policy changes," saying they "may indeed constitute violations in light of the expressions of concern contained within this letter."
 
Prater chose not to prosecute commissioners then for violating the Open Meeting Act.
 
What will he do now?
 

 
Joey Senat
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.
 

Enid newspaper gets hearing to unseal records of dismissed charge against attorney

A sealed felony perjury charge against Enid attorney Eric Edwards was dismissed Monday.
 
But the Enid News & Eagle isn't giving up its fight to unseal the records closed by District Judge Ray Dean Linder in June.
 
News & Eagle Publisher Jeff Funk said the manner in which the case was sealed gives the impression of partiality and undue secrecy.
 
"The decision to dismiss the charge against Edwards does not address the News & Eagle's concern," Funk said. "Our dispute is with how this entire criminal case was made secret. It was sealed without advance notice, without proper procedure.
 
"How can the public have faith in a justice system that keeps secrets, that hides certain cases in dark corners, especially a case involving another local attorney?
 
"It looks like preferential treatment for Edwards, an attorney, to have a criminal charge against him kept confidential even though charges against all other adults are handled in open court," Funk said. "Our objection is to the secrecy of this case, and we want the court to declare this secrecy, this special treatment, unlawful and wrong."
 
A hearing on the newspaper's motion to unseal the case has been scheduled before Grady County District Judge Richard Van Dyck on July 30 in the Grady County Courthouse in Chickasha.
 
The Oklahoma Supreme Court had reassigned the case from Linder to Van Dyck on June 28.
 
Linder blocked public access to the records the same day the charge was filed against 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."
 
Major County District Attorney Hollis Thorp later recused his office from the case.
 
Oklahoma County District Attorney David Prater was appointed to replace him. After reviewing the case, Prater filed a motion to dismiss the charge, saying it was in the best interest of justice.
 
Van Dyck agreed on Monday.
 
The newspaper's attempt to unseal the case took a strange twist recently when it received a response from Edwards’ attorney, Stephen Jones, with more than 40 lines blacked out.
 
In a court filing Friday, the newspaper's attorney, Michael Minnis, noted the difficulty of replying to a redacted response.
 
"If the defendant was truly seeking to avoid notoriety about what he claims is a bogus criminal charge, he should have made his arguments in open court and could have avoided the massive publicity he had to know would be caused by trying to make the case disappear shortly after it was filed,” Minnis wrote.
 

 
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.

McAlester City Council uses code name for economic development project rather than list company on meeting agendas

McAlester City Council members are scheduled to meet behind closed doors tonight, as they did last week, to discuss "Project Spider."
 
The meeting agendas describe it as "a proposed expansion of an existing McAlester employer/business."
 
City Manager Pete Stasiak has refused to provide the McAlester News-Capital with more details, saying he couldn’t reveal the company's name because it would disclose too much information that might affect the outcome of the project.
 
City Councilor Travis Read told the newspaper it's a project the city is working on with MPower Economic Development.
 
Read said the code name was used to keep secret the name of the business. The intent was not to violate the state Open Meeting Act, he said.
 
Confusion over what to include on the agenda is created by the wording of the provision allowing executive sessions to discuss economic development.
 
Public bodies may confer behind closed doors "on matters pertaining to economic development, including the transfer of property, financing, or the creation of a proposal to entice a business to remain or to locate within their jurisdiction 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." ((OKLA. STAT. tit. 25, § 307(C)(10))
 
However, state legislators didn't exempt economic development discussions from what's required on a meeting agenda for executive sessions.
 
As Attorney General Scott Prutt emphasized in late November, the statutory requirements to conduct an executive session apply to discussions of economic development. (2011 OK AG 22)
 
He said the vote to enter into such an executive session "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.'" (Id. ¶ 5)
 
"In addition," Pruitt said, "the public body must give proper notice of the proposed executive session on the meeting agenda." (Id.)
 
He then quoted from the Open Meeting Act (OKLA. STAT. tit. 25, § 311(B)(2)):

B. 2. If a public body proposes to conduct an executive session, the agenda shall:
 
a. contain sufficient information for the public to ascertain that an executive session will be proposed;
 
b. identify the items of business and purposes of the executive session; and
 
c. state specifically the provision of Section 307 of this title authorizing the executive session.

Pruitt concluded:

If a public body determines an executive session is necessary to protect the development of products or services or to protect the confidentiality of a business, and if the public body has given proper notice of the proposed executive session under 25 O.S.Supp.2010, § 311(B)(2), then the public body may vote and enter into executive session for purposes of conferring on certain matters of economic development pursuant 25 O.S.Supp.2010, § 307(C)(10). (emphasis added)

Unless those notice provisions "are strictly complied with," the Open Meeting Act prohibits public bodies from going into an executive session. (§ 307(E))
 
Despite those requirements, the Skiatook Board of Trustees in March and April didn't identify the items of business and purposes of their close-door sessions to discuss economic development.
 
Now, the McAlester City Council is using code names on meeting agendas.
 
"We have some businesses that do not want to be identified publicly until the deal is made," Read explained.
 
Well, government employees would like their identity kept secret, too, when city councils discuss them in executive session. Yet a 1998 attorney general opinion requires that the employee’s name or unique title be listed on the agenda.
 
Why? Because to meet in executive session, said then-Attorney General Drew Edmondson, the public body must satisfy the agenda requirements set forth in the Open Meeting Act. The same requirements pointed out by Pruitt.
 
Plus, as Edmondson had noted, 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." (OKLA. STAT. tit. 25, § 311(B)(1))
 
The bold italics were Edmondson's emphasis.
 
"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. (1997 OK AG 61, ¶ 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.)
 
Edmondson noted the state Supreme Court had agreed that the purpose of the Open Meeting Act "to encourage and facilitate an informed citizenry’s understanding of the governmental processes and governmental problems ... is defeated if the required notice is deceptively worded or materially obscures the stated purpose of the meeting.” (Id. ¶3) (citing Andrews v. Independent School Dist. No. 29 of Cleveland County, 1987 OK 40)
 
"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." (1997 OK AG 61, ¶ 5)
 
Although the Open Meeting Act "does not specify that a person must be identified by name," he said, "in light of case law, it is evident that identification by name is necessary unless the position held by the person is so unique as to allow adequate identification."
 
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)
 
Or as a 1980 attorney general opinion said, "The Open Meeting Act must be given a construction which will effectuate and not subvert the intention of the Legislature in facilitating an informed citizenry’s right to participate in government and understand why government acts affecting their daily lives are taken." (1980 OK AG 215, ¶ 12)
 
At an open government workshop in September 2009, public officials were cautioned not to use "cryptic" agenda language. A public body should not try to hide what it will be doing at a meeting, said Gay Tudor, who was then the chief of the Attorney General's General Counsel Section.
 
Similarly, Pruitt's office has warned public bodies that they must identify the item of business and purpose of executive sessions for discussions protected by attorney-client privilege.
 
Government attorneys for years have argued that listing any information about a "pending investigation, claim, or action" would hurt the public interest.
 
But Pruitt told a state agency that its agenda was too vague when it listed an executive session "for the purpose of considering a settlement of a lawsuit(s)" under the attorney-client privilege.
 
Pruitt's top assistant reiterated that point at an open government workshop for public officials and others in Oklahoma City in November.
 
Listing only the specific statutory authorization would violate the Open Meeting Act, said Rob Hudson, first assistant attorney general. The agenda item should list information such as the name of the parties in the lawsuit.
 
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.
 
"How else would the average person know what you are talking about," he explained. "The public has a right to know what you are going to discuss in an executive session."
 
Executive sessions for attorney-client privilege, personnel investigations and economic development fall under the same statutory requirements for agendas.
 
So if the names of those threatening a lawsuit and the names of employees must be listed on the agenda, the name of the company being discussed behind closed doors should be disclosed, too.
 
After all, that business is asking for some economic incentive such as a tax break, donated land, utility rate discount, or other favor involving public funds.
 
The public should know before these are "done deals."
 
As Cartwright wrote in 1982: "Executive sessions are not permitted under the law because the matters to be taken up are in the private domain of public officials. Such matters are the business of the public. (1982 OK AG 114, ¶ 12) (emphasis included)
 
"Executive sessions exist only for the purpose of compromising equally important policy commitments which come into conflict....," he noted.
 
Permitting closed-door discussions of the particulars of an economic development proposal protects the development of products or services as well as the confidentiality of the business' plans.
 
Requiring specific information, such as the name of the company, on the agenda would protect the equally important policy commitment "to encourage and facilitate an informed citizenry's understanding of the governmental process 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.

Owasso releases police videos to newspapers; Official now says arrest videos are public records

The Tulsa World and Owasso Reporter received copies Monday of police videos showing an arrest that led to the firing of an Owasso police officer who was recently reinstated by an arbitrator.
 
The city had refused the newspapers' requests for a copy of lapel camera video showing a police lieutenant using what the city deemed was excessive force and for which he was fired.
 
The Tulsa World sued the city in December for access to the video. The lawsuit is pending, the newspaper reported Monday.
 
At the time, City Manager Rodney J. Ray said the public interest in releasing the videos didn't outweigh the reasons for denying access.
 
On Monday, Ray told the Tulsa World that "we are in complete agreement that this is an open record."
 
He also told the newspaper that the footage was released because of the arbitrator’s ruling last week and because the man arrested in the video had released the city from liability over the disclosure.
 
Ray said the release of arrest videos by other cities had also changed his mind.
 
In denying the request, Ray and the city had argued that arrest videos are not included in the eight categories of law enforcement records that must be released under the state Open Record Act. (See OKLA. STAT. tit. 51, § 24A.8(A)(1-8))
 
The statute allows police departments to deny access to other law enforcement 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))
 
But Ray and the city contended that the public interest was outweighed by the officer's right to appeal his termination to the city's Personnel Board and to seek binding arbitration.
 
Monday's release is the second time in eight months that Owasso has provided police video after being sued.
 
In December, city officials agreed to release the police officer lapel camera video and audio materials sought by the family of a Tulsa man who died Oct. 27 in the Tulsa County jail.
 
The family had filed an Open Records Act lawsuit against Owasso after the police department would release only an arrest report, a radio log and a computer-aided dispatch report.
 
In the lawsuit, the family argued that the lapel video and other materials were "essential in determining the events which transpired during the arrest," the Tulsa World had reported.
 
Access to videos of arrests has been an issue elsewhere in the state.
 
In March, a Washington County judge ordered Bartlesville police to provide the local newspaper with a copy of hospital surveillance video that had led to the arrest of two officers in December.
 
That decision contrasted with a Rogers County judge's decision in August that the Claremore Police Department's dash-cam recordings are not public records. But the judge said requesters could ask a court to find that the release of a particular recording would serve a public interest that outweighs the reason for denial.
 
A year ago, Catoosa decided to release its police department's audio and video recordings after the city was sued for access. Officials agreed that the recordings "are subject to the Open Records Act."
 
In 2004, the state Supreme Court held that Department of Public Safety recordings of administrative hearings contained facts concerning arrests and therefore were open under the Open Records Act. (Fabian & Assoc., P.C., v. State ex. rel. Dept. of Public Safety, 2004 OK 67, ¶ 14)
 
The statute makes public the "facts concerning the arrest, including the cause of arrest and the name of the arresting officer." (OKLA. STAT. tit. 51, § 24A.8(2))
 
"By this statute," the Supreme Court said, "DPS is required to make available for public inspection facts concerning the arrest. Fabian asserts that the requested tapes contain the facts concerning the arrest and therefore § 24A.8(A)(2) requires the tapes to be open for public inspection. We agree."
 
Those tapes were recordings of administrative hearings concerning the revocation of drivers' licenses.
 
Certainly the same reasoning applies to the police recordings of actual arrests.
 

 
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.

Hinton chamber president signs FOI Oklahoma's Open Government Pledge

The Hinton Chamber of Commerce president has pledged to "support legislation to strengthen the letter and the spirit" of Oklahoma's open government laws if elected to the House District 60 seat.
 
In signing FOI Oklahoma's Open Government Pledge, Kendra Menz-Kimble, a Democrat, also endorsed "the purpose of Oklahoma’s Open Meeting and Open Records laws to ensure and facilitate the public's understanding of governmental processes and problems."
 
The general election is Nov. 6.
 
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.
 
In signing the pledge, candidates 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."
 
Candidates for local and statewide offices also pledge that they and the public bodies they are "elected to govern will comply with not only the letter but also the spirit of Oklahoma's Open Meeting and Open Records laws."
 
Instructions for signing the pledge and lists of signers are on the FOI Oklahoma website.
 

 
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 County District Attorney’s Office persuades Sperry school district to post agenda packets online prior to board meetings

Sperry school district officials will start posting agenda packets online prior to board meetings, the Skiatook Journal reported Friday afternoon.
 
Superintendent Brian D. Beagles had refused to make the packets available until the day after school board meetings.
 
The district didn't have the time or necessary staff to ensure that the materials given to school board members could be reviewed and confidential material redacted before meetings, Beagles had told the newspaper and Cindy Wilson, a former school board member requesting the packets.
 
The newspaper filed a complaint with the Tulsa County District Attorney's Office.
 
On Tuesday, the DA's Office told the newspaper that the school board materials will be posted to the district's website by 1 p.m. on meeting days.
 
The board is scheduled to meet at 6 p.m. Monday.
 
On Friday, Beagles told the newspaper that people without Internet access will be allowed to pay for hard copies at the district office. He would not clarify for the newspaper whether the copies would be made available at the time of the request.
 
However, the head of the DA's Civil Division indicated to the newspaper that copies will be available when requested.
 
"My understanding is that hard copies of the packets will be available at 1 p.m. on the day of the meeting for anyone that makes a written request with money in hand,” John David Luton told the newspaper in an email.
 
Requesters should also be allowed to inspect the records first for free. The state Open Records Act clearly requires that records be made available for inspection as well as for copying. (OKLA. STAT. tit. 51, § 24A.5)
 
Beagles also wouldn't clarify whether the district will continue requiring requesters to make appointments to view other public records.
 
But Luton told the newspaper, "I don’t think an appointment is required to inspect documents."
 
The Open Records Act already requires government agencies to have available during all regular business hours an employee who is "authorized to release records ... for inspection, copying, or mechanical reproduction." (§ 24A.5(6))
 
The statute also mandates "prompt, reasonable access," which the state attorney general has defined as "only the time required to locate and compile" the public records. (1999 OK AG 58, ¶ 15)
 
"There is no provision in the Open Records Act for a public body to 'withhold' records for any amount of time, however small. The duty to provide prompt and reasonable access is complied with only when a public body properly attends to its duty to provide a record," the attorney general said. (Id. ¶ 11)
 
The statute also allows government agencies to "establish reasonable procedures that protect the integrity and organization of its records and to prevent excessive disruptions of its essential functions." (§ 24A.5(5))
 
A 2006 attorney general opinion said such protection "might reasonably include limiting access to original records by the public or limiting public access to work areas of agency personnel." (2006 OK AG 35, ¶ 13)
 
Thank you to Wilson and the newspaper for standing up for the public's need to know.
 
Kudos to the Tulsa County District Attorney's Office for persuading Beagles and the school attorney, Douglas Mann of Rosenstein, Fist & Ringold, to change the policy.
 
But why did it take intervention by the DA's Office?
 
The Sperry school board -- President Jeff Carter, Vice President Gary Juby, Clerk April Bowman, Derrell Morrow and Mechelle Beats -- should have told Beagles to change his obstructionist policy.
 
After all, they work for the electorate. And Beagles works for them. Not the other way around.
 

 
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.

Yukon school board decides not to appeal open records decision, posts audit online; Open Meeting Act violations remain unresolved

Yukon Public Schools on Friday posted an investigative audit of its Vo-Ag Program after school board members voted not to appeal a judge's decision making the report public.
 
Canadian County Judge Gary E. Miller ruled June 22 that the audit was not protected by attorney-client privilege because the district had not hired investigator Mark Patzkowski in his capacity as an attorney.
 
Miller had given the district 30 days to file an appeal. But the school board voted in a special meeting Tuesday not to appeal.
 
(Read The Oklahoman's coverage of what the audit found.)
 
Randy and Debra Wright of Yukon filed the open records lawsuit in January after Yukon Superintendent William Earl Denton denied their Open Records Act request.
 
Sworn depositions taken in the lawsuit revealed several apparent Open Meeting Act violations by the Yukon Board of Education in 2011, including that the:

• School board members decided through a series of non-public, individual private conversations with Denton 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.

Now that the records issue is resolved, the question becomes: What will Canadian County District Attorney Michael Fields do regarding the Open Meeting Act violations by the Yukon school board.
 

 
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.

Healdton City Council agenda lists wrong statutory exemption, no item of business for executive session

The Healdton City Council met behind closed doors Monday night under the statutory exemption to discuss terrorism-related issues, The Ardmoreite reported.
 
But in the executive session, the council actually discussed hiring the state auditor to investigate the finances of the small town in south-central Oklahoma, the newspaper said.
 
The meeting agenda had not specified a reason for the executive session. It listed only, "Discuss with City Attorney pending investigation disclosure of which City Attorney has advised will impair the ability to proceed with pending investigation as provided by the Oklahoma Open Meeting Act (Title 25 307.B.9)."
 
Listing the wrong statutory authorization and not listing an item of business are apparent violations of the state Open Meeting Act.
 
Carter County District Attorney Craig Ladd told the newspaper he would wait to review information on the executive session before commenting.
 
The Open Meeting Act permits executive sessions for nine topics. The one listed on the agenda, OKLA. STAT. tit. 25, § 307(B)(9), is to discuss terrorism, e.g., "the investigation of a plan or scheme to commit an act of terrorism."
 
The agenda apparently should have cited Okla. Stat. tit. 25, § 307(B)(4), which allows confidential communications between a public body and its attorney "concerning a pending investigation, claim, or action."
 
Before the council entered the executive session, Ardmoreite reporter Michael Pineda objected, in part because the wrong statutory authorization was cited.
 
City Attorney Bob Pinkerton dismissed it as a misprint and the council proceeded on his advice, Pineda reported.
 
But the Open Meeting Act says public bodies may not enter into an executive session unless certain procedures are "strictly complied with." (§ 307(E))
 
For example, the agenda must "state specifically the provision ... authorizing the executive session." (§ 311(B)(2)(c))
 
The Healdton City Council agenda didn't state the correct statutory authorization for the executive session.
 
The Open Meeting Act also requires that the agenda item for an executive session "identify the items of business and purposes of the executive session." (§ 311(B)(2)(b))
 
The Attorney General's Office has said publicly since September that government bodies must comply with this provision by citing more than attorney-client privilege.
 
For example, Attorney General Scott Pruitt told a state board that its agenda was too vague when it listed an executive session "for the purpose of considering a settlement of a lawsuit(s)" under the attorney-client privilege.
 
Pruitt's top assistant reiterated that point at an open government workshop for public officials and others in Oklahoma City in November.
 
Rob Hudson said listing only the specific statutory authorization for the proposed executive session under the attorney-client privilege would be a violation of the Open Meeting Act.
 
For example, at least the nature of an impending lawsuit or claim should be listed, Hudson said.
 
"The public has a right to know what you are going to discuss in an executive session," said Hudson.
 
The agenda item should list information such as the name of the parties in the lawsuit, he explained.
 
"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."
 
Headlton officials should have listed the reason for the executive session.
 
After the meeting, Mayor David Smith confirmed for Pineda that a months-long investigation has found discrepancies in the town's finances. City Treasurer Karen Kardaleff was relieved of her duties Tuesday morning and placed on paid leave, Pineda reported.
 
The purpose of the Open Meeting Act is to "encourage and facilitate an informed citizenry's understanding of the governmental processes and governmental problems." (OKLA. STAT. tit. 25, § 302)
 
The Court of Civil Appeals held that "strict adherence to the letter of the law is required" and that "substantial compliance" is insufficient. (Matter of Order Declaring Annexation, Etc., 1981 OK CIV APP 57, ¶¶ 20-21)
 
Violating the Open Meeting Act is a crime punishable by up to one year in the county jail and a fine of up to $500.
 
In prosecuting a violation of the Open Meeting Act, the state need only prove a willful failure to comply. Criminal intent need not be proved, the Court of Criminal Appeals has said. (Hillary v. State, 1981 OK CR 78, ¶ 5)
 
The state Supreme Court has 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)
 
The Act also does not require prosecutors to prove injury to establish a case, the Court of Criminal Appeals has said. (Hillary, ¶ 8)
 
In November, Hudson simply warned officials: "The Open Meeting Act is the law. Don't break the law."
 

 
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications
 
The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.