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.

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