Friday, November 30, 2012

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

The operator of an online news service filed a lawsuit Thursday accusing Muskogee County District Attorney Larry Moore of violating the Open Records Act by not producing documents concerning courthouse security and surveillance when they were requested.
Leif Wright's lawsuit also asks a judge to order Moore to provide requested emails on the subject.
Moore has told Wright's attorney that the IT department housing the emails cannot search them for the requested records.
In September, the Muskogee County Bar Association filed a complaint against Moore accusing him and others in his office of having access to live audio and video feeds of courtrooms while defense lawyers privately consulted with clients, the Muskogee Phoenix reported.
In October, Wright, who operates, requested from Moore's office all records related to the recording of video and audio in the Muskogee County Courthouse.
Moore responded in a letter to Wright's attorney, Ronald E. Durbin II of Tulsa, that most of the records did not exist.
Durbin responded in writing that he found it "extremely difficult to believe that, given the nature of the controversy related to this issue, that no emails and/or text messages exist" and that he had reason to believe they did.
Moore subsequently provided a number of the documents.
However, in a Nov. 7 letter to Durbin, Moore said the District Attorneys Council Information Technology Division, which stores his office emails, "did not have the technological capability to conduct such [a] search for e-mails or text messages."
Wright's lawsuit contends that Moore's office does have the capability to search emails and asks a judge to order Moore to do so.
The lawsuit also accuses Moore of violating the Open Records Act by not providing documents when they were first requested.
Moore told the Muskogee Phoenix Thursday night that had not seen the petition but that he and his office had complied with Wright's request.
"We have given him what he has requested under the Open Records Act," Moore told the newspaper. "You can't give them what you don't have. We've searched the records to the best of our ability and have found nothing else."
But Wright counters in a column this morning:
Moore said he isn't obligated to give the public those public documents, since he has no way to search them.
We believe it is, however, his obligation to do so, and it stretches credulity to say that, in 2012, somehow emails are completely unsearchable.
The most basic home computer has the ability to search emails, why doesn't the agency in charge of making sure those emails get archived have the ability to search them once they're archived?
Darn good question.

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

Wednesday, November 28, 2012

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

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

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

Saturday, November 17, 2012

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

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

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

Friday, November 16, 2012

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

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

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

The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.

Wednesday, November 14, 2012

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

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

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

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

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

The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.

Tuesday, November 13, 2012

Senate committee hears case for more transparency by state Legislature

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

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

Holt was responsible for the Senate hearing Tuesday.

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

News coverage of the hearing:

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.