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.
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.