The Senate Rules Committee on Tuesday heard why the Legislature should be more transparent in its operations and how open government laws apply to state lawmakers elsewhere.
Bills removing the Oklahoma Legislature's self-imposed exemptions from the state's Open Records and Open Meeting laws are expected this coming session from Republican Sen. David Holt of Oklahoma City and Rep. Jason Murphey of Guthrie.
Holt was responsible for the Senate hearing Tuesday.
Peter J. Rudy of Oklahoma Capitol Source urged senators to adopt the House practice of having standing conference committees with public meetings and votes on bills. Rudy's full comments can be read here.
News coverage of the hearing:
- Sean Murphy, Okla. Senate panel hears from opengovt. advocates, The Associated Press, SF Gate/San Francisco Chronicle,
Nov.
13, 2012.
- Phil Cross, Critics want an open government, KOKH FOX 25, Nov. 13, 2012.
- Barbara
Hoberock, Panel hears call for open government, Tulsa World, Nov.
14, 2012.
Here are my prepared remarks to the committee:
Thank you for this opportunity to discuss with you the application of
open government laws to the legislative process.
I will begin by pointing out that Oklahoma's Open Records Act starts with
the following statement of principle:
As the Oklahoma
Constitution recognizes and guarantees, all political power is inherent in the
people. Thus, it is the public policy of the State of Oklahoma that the people
are vested with the inherent right to know and be fully informed about their
government.
The stated purpose
of the Open Records Act is "to ensure and facilitate the public’s right of
access to and review of government records so they may efficiently and intelligently
exercise their inherent political power."
Similarly, the
Oklahoma Open Meeting Act states, "It is the public policy of the State of Oklahoma to
encourage and facilitate an informed citizenry's understanding of the
governmental processes and governmental problems."
Those statutes eloquently declare important principles. As one author
has noted, "A basic tenet of a healthy democracy is open dialogue and
transparency."
I have heard
previous legislative leaders claim that one Legislature may not legally bind future
legislatures to the Open Records and Open Meeting acts. However, the
Legislature has done just the opposite by explicitly exempting future
legislatures from these statutes.
The Oklahoma Legislature appears to be one of only three in the nation to still be
explicitly exempted from its state open
records law. The other two are Massachusetts and Oregon.
In contrast, the open records statutes of our
neighboring states -- Arkansas, Colorado, Kansas and Texas -- have been
interpreted to include their respective state legislatures.
In at least 40 states, the legislature must abide
by its open records law to at least some degree. Records of these legislatures
are often open to the same extent as records of other public bodies.
Oklahoma’s Legislature also appears to be one of
only eight nationwide to be explicitly
exempted from its open meeting law.
In contrast, meetings of the state legislative
bodies in Arkansas, Colorado, Kansas and Texas are opened to the public, to
varying degrees, by either statutory or constitutional provisions.
I am told that some Oklahoma legislators are
concerned that public notice of meetings is unworkable in four to five month
sessions. However, other state legislatures operate under such a requirement.
- The Colorado General Assembly meets 120 days each
year. Senate committees are expected to post at least one calendar day prior to
the meeting a notice of the measures to be considered.
- The Texas Legislature meets only every two years for
a maximum of 140 calendar days. Yet, its committees must give at least 24-hour
notice of hearings on bills.
In all, state legislative bodies in 36 states must
meet in the open to some degree because of a statutory or constitutional
provision.
In Minnesota, for example, the legislature passed a
statute that is separate from the state's Open Meeting Act and that requires all
its meetings to be open. This includes the sessions and joint sessions of both
chambers and meetings of standing committees, subcommittees, conference
committees and legislative commissions.
Courts may not interpret or enforce the statute. Instead,
each chamber adopts rules to implement it as well as the remedies for
violations.
- The House and the Senate allow anyone to file a
written complaint alleging a violation of the open meeting requirements. Under
the House rules, the Speaker must investigate the complaint promptly.
- If the Speaker concludes that a violation may have
occurred, the Speaker must refer the complaint to the Committee on Ethics for
further proceedings.
- In the Senate, the written complaint is submitted
to the Chairman of the Committee on Rules and Administration,
who must immediately forward the complaint to the Subcommittee on Ethical Conduct.
Such an approach here could alleviate concerns that
a separation of powers prevents the courts from enforcing the Open Meeting and Records
acts against the Oklahoma Legislature.
Regardless of the approach in Oklahoma, a need to
protect legitimate privacy and confidentiality concerns will preclude some
records and meetings from being open to the public.
But legislators should strive for the greatest
transparency while exempting only truly confidential information from disclosure.
In fact, medical records and similarly private information
are already exempted from the otherwise public documents of state and local
agencies.
In the context of legislative records, personal
communications to a legislator in which a person exercises rights under the
federal or state constitutions could be exempted from public disclosure.
In fact, an exemption for personal communications exercising constitutional rights already exists under the Open Records Act.
But I would urge you not to exempt communications
to a legislator from other government officials or from registered lobbyists.
As noted earlier, the purpose of Oklahoma's Open Meeting
and Open Records laws is to ensure and facilitate the public's understanding of
governmental processes and problems.
That understanding occurs best when the public
observes frank and open discussions by its elected officials.
As our state Supreme Court said, "If an informed
citizenry is to meaningfully participate in government or at least understand
why government acts affecting their daily lives are taken, the process of decision
making as well as the end results must be conducted in full view of the governed."
Exempting the Legislature from our state's open
government laws diminishes the public’s role as a watchdog over the elected officials
who most directly shape our state's policies and laws.
Without advance knowledge of what measures a
government body will discuss and vote on, the public is deprived of its right
to witness such decisions being made.
The public must have the opportunity to watch
firsthand the debate in which alternatives are weighed, accepted or rejected. The
reasoning of our elected officials is as important as their vote.
Implementing greater transparency at the state Legislature
would help foster public confidence in this body and in state government
overall.
As U.S. Sen. Russell Long noted in 1964:
A government by secrecy
benefits no one. It injures the people it seeks to serve; it damages its own integrity
and operation. It breeds distrust, dampens the fervor of its citizens and mocks
their loyalty.
These principles are true whether the public body
is a city council or the state Legislature.
When a legislature avoids open government laws, it
doesn’t build the public's trust or confidence. Instead, it raises suspicion
that corruption is occurring behind those closed doors.
It creates the appearance that back-room deals are
being cut.
Consider, for example, this Tulsa World editorial
in January 2011, "Senators [and representatives] have nothing to fear from
letting the public know what they are doing, unless they're doing something they
don't want the public to know about."
Such secrecy also fosters incompetency and mediocrity.
Oklahomans expect their legislators to operate with
the same public scrutiny required – rightfully so – of our other state and
local officials.
Some 85 percent of Oklahomans believe the state Legislature
should comply with the same open government mandate that applies to other
public officials, according to a SoonerPoll released in March 2012.
The survey revealed overwhelming
bipartisan support for removing the Legislature's exemptions from the Open Records
and Meetings acts:
- 85 percent of Republicans,
- 84 percent of Democrats, and
- 93 percent of independents.
Some 85 percent of conservatives, 91 percent of liberals and 86 percent of moderates said they would support legislation to remove the exemptions.
Clearly, Oklahomans want you to abide by the Open Meeting
and Open Records acts.
I will close by acknowledging that operating in the
open is certainly not always the most convenient or easiest way to conduct the
public’s business.
But in a democracy, it's the right way.
Thank you again for this opportunity.
An annotated copy of these comments is available here.
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications
The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.
