AG says Open Meeting Act doesn't apply when public bodies discuss 'broad general matters' possibly related to their business but on which they cannot take action

Public bodies don't have to abide by the Open Meeting Act when meeting with governmental agencies or private entities to discuss "broad general matters that may be related to the business of the public body, but are not matters on which the public body could take action," Attorney General Scott Pruitt said in a written opinion issued today.
 
Instead, Pruitt said, the statute applies only when public bodies are "considering discrete proposals or specific matters that are within the agency's jurisdiction."
 
For example, Pruitt said the state Corporation Commission isn't subject to the Open Meeting Act when meeting with other governmental agencies "to discuss mutual business, or attends a meeting of a private entity concerning a topic of interest to the Oklahoma Corporation Commission's business, ... unless, at the meeting, the commissioners are considering discrete proposals or specific matters that are within their jurisdiction."
 
And the statute wouldn't apply when two of the three commissioners attends a state Senate or House "meeting to provide information about the Commission's business to aid the Legislature in its process of decision-making" because the commissioners would not be "considering discrete proposals or specific matters within their jurisdiction."
 
But when at least two commissioners are present at a public utility hearing, the Open Meeting Act applies because "the commissioners are engaged in the 'conduct of business' because they are considering discrete proposals or specific matters that are within their jurisdiction."
 
Even though Pruitt's 19-page opinion dealt with the Open Meeting Act's application to the Corporation Commission, it sets the framework for other public bodies seeking to discuss issues of public concern with governmental agencies and even private entities.
 
The Open Meeting Act defines a meeting as:

[T]he conduct of business of a public body by a majority of its members being personally together or, ... together pursuant to a videoconference. Meeting shall not include informal gatherings of a majority of the members of the public body when no business of the public body is discussed. (OKLA. STAT tit. 25, §, 304(2))

Pruitt noted that opinions by his predecessors "do not limit the types of discussion that fall under the Act to those that 'effectively predetermine official actions,' and speak in broader terms about discussion, deliberation, and voting as all being the 'conduct of business.'"
 
He also noted the Oklahoma Supreme Court has said that because the Open Meeting Act was "enacted for the public's benefit," the statute "is to be construed liberally in favor of the public." (Int’l Ass’n of Firefighters v. Thorpe, 1981 OK 95, ¶ 7)
 
"As a result," Pruitt reasoned, "the state law term 'conduct of business' might well include discussions in which the members of the public body are considering information that will aid them in their decision-making, even though those discussions do not necessarily 'effectively predetermine their official actions' or cause the members to form a reasonably firm position on the matter at that moment.
 
"[H]owever, we do not believe that even a liberal construction of the term 'conduct of business' could include broad general matters that may be related to the business of the public body, but are not matters on which the public body could take action.
 
"A public body is thus engaged in the 'conduct of public business' when a majority of the members are considering discrete proposals or specific matters that are within the agency's jurisdiction."
 
For instance, Pruitt said, when at least two corporation commissioners are present at the same time at a legislative public utility hearing, the hearing is subject to the Open Meeting Act because they are "participating in discussions of discrete proposals regarding the regulation of a public utility, a matter within their jurisdiction."
 
"Citizens observing the commissioners at the public utility hearings could gain insight into how commissioners arrived at the decisions that affect their daily lives and an understanding of governmental processes," Pruitt said.
 
The Open Meeting Act would apply even if the two commissioners were "not present at the same time for the entire proceeding" or even if they had "chosen to informally 'drop in' on the same public utility hearing at the same time."
 
"Whether the Corporation Commission or another public body is engaged in the 'conduct of business' in other types of gatherings requires a consideration of the particular facts and circumstances," Pruitt emphasized.
 
As for other applications of the Open Meeting Act to the Corporation Commission, Pruitt said:

• Including meeting notices in utility bills, publishing them in newspapers, and posting them on a calendar in the lobby or other area of the Jim Thorpe Office Building fails to meet the statute's requirements.


• Minutes must record when commissioners are absent during portions of a meeting. Pruitt suggested using a notation such as "Commissioner A left the meeting" and "Commissioner A returned to the meeting" in the section of the minutes describing the matter under consideration when the commissioner left and returned. He said commissioners are absent when they are "not both visible and audible to the other members and the public."


• "Neither a court reporter's untranscribed verbatim notes nor transcript meet the Oklahoma Open Meeting Act's requirements for minutes of a public meeting."

Pruitt also said commissioners "may not post notice of and attend two separate meetings held in separate locations at the same time on the same day."
 
"As a majority of the Corporation Commission cannot be in two places at the same time, it is not possible for two 'meetings' to occur at the same time."
 
For example, notices and agendas might be posted for a commission meeting and a public utility hearing conducted by an administrative judge to be held at the same time in different locations. This would allow the commissioners "to move back and forth between the two meetings as they desired."
 
Pruitt called such a practice "misleading to the public."
 
"Rather than 'encourage and facilitate an informed citizenry's understanding of governmental process and governmental problems,' it would more likely confuse and frustrate citizens who wanted to observe the commissioners actions in both the commission meeting and the public utility hearing," Pruitt said. "The public would essentially have to follow the individual commissioners back and forth from place to place.
 
"An interpretation of the Open Meeting Act to allow posting of two sets of notices for meetings held at the same time on the same day but in different locations so individual commissioners can move back and forth between the two meetings as they desire does not attain or champion the spirit and purpose of 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.

VA comm'r wants to throw out state Open Meeting Act

A member of the state commission overseeing the Veterans Affairs Department wants to do more than meet socially with a majority of the board without public notice, which the state Open Meeting Act already allows.
 
Thomas Howell wants legislators to allow the War Veterans Commission to discuss the public's business in secret.
 
"I said just throw it all out and say commissioners can meet whenever they wanted to, to discuss the problem that you have so you can have an answer when you come to these meetings on the problems we are having to address now," Howell said.
 
Howell, who represents Disabled Veteran Americans on the board, said he has spoken with two state senators about proposing a bill allowing a majority of the nine-member commission to meet secretly without violating the Open Meeting Act.
 
The Oklahoman's article didn't identify which two senators might be considering such idiotic legislation. But another news outlet reported that Howell has spoken with Sen. Don Barrington, R-Lawton.
 
Howell's public comments were made Friday during a meeting in which the commission voted to remove "interim" from John McReynolds' job title as executive director of the state's Veterans Affairs Department.
 
Ironically, the commissioners interviewed McReynolds and another candidate during an executive session, which means the public was excluded from that part of the meeting.
 
But the Open Meeting Act prohibits the majority of a public body from meeting without posting advance notice and an agenda telling the public that such an executive session is scheduled. (Okla. Stat. tit. 25, § 303)
 
These requirements exist for good reason. As the state Court of Civil Appeals said in 2008:

The [Open Meeting] Act is designed to ‘encourage and facilitate an informed citizenry's understanding of the governmental processes and governmental problems. … The Act serves to inform the citizenry of the governmental problems and processes by informing them of the business the government will be conducting. (Wilson v. City of Techumseh, 2008 OK CIV APP 84, ¶ 10)

This includes the entire decision-making process, our state Supreme Court has said.
 
"The underlying goals of the 'open meeting laws' can not be seriously challenged. 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." (Oklahoma Ass’n of Municipal Attorneys v. Derryberry, 1978 OK 59, ¶ 10)
 
Or as an attorney general opinion later explained, "Public access to a mere 'rubber stamp' vote is all but useless." (1982 OK AG 212, ¶ 7)
 
Howell complained that the Open Meeting Act's requirements cause problems because more than four commissioners are members of the VFW and the American Legion. He apparently believes that the statute prohibits the majority of a public body from gathering at parties, dinners or other social events.
 
In 2007, however, legislators added language to the statutory definition of "meeting" to clarify that a majority of a public body may gather informally as long as "no business of the public body is discussed." (Okla. Stat. tit. 25, § 304(2))
 
But Howell's comments indicate that he believes commissioners should be able to discuss -- and essentially decide -- the public's business far from the prying eyes of the people they're supposed to serve.
 
Fortunately, Commission Chairman Richard Putnam seems to understand the purpose of the Open Meeting Act, saying:

My interpretation is we're not prevented from attending things like conventions where we are all members. We are just prevented from meeting as commissioners during those events. In psychology, we call it face validity. I think in order to have the public's trust we need to demonstrate we will not meet secretly.

The War Veterans Commission and the Veterans Affairs Department need to be building public trust. The agency has been criticized for a "series of premature deaths, abuse and neglect cases" at the seven nursing centers it operates. A former nurse's aid at the Veterans Center in Norman was convicted last week of one count of first-degree rape and two counts of forcible oral sodomy on patients.
 
In August, Gov. Mary Fallin requested an audit to review of the efficiency and effectiveness of the agency's management, the efficiency and effectiveness of the oversight of department operations, the reasonableness of expenditures, and a review of the expenditures of the department's administration for compliance with appropriate state statutes and regulations.
 
Howell of Duncan was one of eight new members appointed by Fallin to the commission in May. He had served on the commission previously as an appointee of Gov. Frank Keating in 1995.
 
Fallin, as a gubernatorial candidate in 2010, publicly said she expected her appointees to public bodies to abide by the Open Meeting and Open Records laws.
 
Fallin should emphasize that to Howell or replace him.
 

 
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. Differing interpretations of open government law and policy are welcome.
 

AG: Mug shots are public records whose release isn't an invasion of privacy

Police booking mug shots are public records that must be released in electronic format if kept that way by the law enforcement agency, Oklahoma Attorney General Scott Pruitt said in a formal opinion Thursday.
 
Because mug shots are public records, releasing them doesn't constitute an invasion of privacy even if the person was acquitted, Pruitt said.
 
Public access to mug shots became an issue in June when the Cleveland County district attorney's office briefly said the photos taken at the county jail would not be released to the public unless there was a legitimate "law enforcement purpose."
 
Assistant District Attorney David Batton justified the decision as protecting the privacy of innocent people who've been arrested and because the photos were being requested by publications that Batton apparently didn't like.
 
Batton also argued that releasing the mug shots could leave county officials vulnerable to lawsuits. He also contended that Oklahoma should abide by a federal appellate decision limiting the release of such photos under the federal Freedom of Information Act.
 
Cleveland County District Attorney Greg Mashburn reversed Batton's opinion about a week later and dismissed him.
 
Pruitt's opinion refuted Batton's arguments.
 
Mug shots are public because the Open Records Act requires law enforcement agencies to make available the descriptions of people arrested, Pruitt said. (See Okla. Stat. tit. 51, § 24A.8(A)(1))
 
"The inclusion of a picture within the term description has long been recognized by law," Pruitt said. "Because a mug shot is one of the best physical descriptions on an arrestee, it is a type of record that must be disclosed."
 
Pruitt said the mug shots must be given to "any person" who requests them. Electronic copies must be provided if requested and the law enforcement agency keeps the photos in that format.
 
An agency isn't required to convert the photos into an electronic format but may charge a reasonable fee for doing so, Pruitt said.
 
Simply releasing the photos "would not constitute an invasion of privacy because mug shots are public records, required by law to be disclosed upon request," Pruitt said.
 
"By itself, the act of disclosing a mug shot is not enough to constitute an invasion of privacy even if the person has been acquitted," Pruitt said. "This is because a mug shot taken during the booking process does not show that the person has been convicted of a crime but only that the person has been arrested and booked into jail.
 
"An invasion of privacy may occur when the disclosure of the mug shot is accompanied by a knowing or reckless false communication that the person in the mug shot has been convicted of a crime."
 
Pruitt emphasized that the opinion applies only to the mug shots of adults, not to confidential law enforcement records of juveniles. However, he noted that if the juvenile loses that confidential status, the mug shot is subject to the Open Records and his opinion.
 
The opinion was requested by Sen. Ron Justice, R-Chickasha, and State Sen. Jim Halligan, R-Stillwater.
 

 
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. Differing interpretations of open government law and policy are welcome.

OSU president refuses to release Chesapeake Energy-related emails, raising questions about his compliance with university's email policies, state law

OSU President Burns Hargis won't release emails on his university account that are related to his job as a member of the Chesapeake Energy Board of Directors, with officials telling The Daily O'Collegian and The Wall Street Journal that the messages are private under the state Open Records Act.
 
But that refusal raises questions about Hargis' compliance with OSU policies (and state law) barring the use of the university's computer system for commercial purposes.
 
Hargis told The Daily O'Collegian that he didn't violate the policy. But as the newspaper pointed out today, Hargis' refusal to provide copies "makes verification impossible."
 
A government ethicist told the newspaper that not releasing the emails raises a "red flag" indicating a potential conflict of interest between Hargis' jobs as OSU president and as a Chesapeake director for which he was paid a little more than $560,000 in 2011.
 
"This is what I call serving two masters," said Judy Nadler, a senior fellow in government ethics at the Markkula Center for ethics at Santa Clara University in California.
 
In May, a reporter for The Wall Street Journal requested Hargis' emails related to Chesapeake Energy Corp., apparently hoping they would shed light on operations by the nation's second-largest natural gas producer.
 
Chesapeake Energy's business practices have been under scrutiny since Reuters reported in April that CEO Aubrey McClendon had taken out up to $1.1 billion in unreported loans by using his stake in each of the company's wells as collateral.
 
OSU officials denied the reporter's request, saying that none of the 758 emails involved "the transaction of public business, the expenditure of public funds or the administration of public property."
 
The Daily O'Collegian made the same request in September. Same response.
 
Users of OSU's email services are put on notice "that under the Oklahoma Open Records Act all records that are created by, received by, under the authority of, or coming into the custody, control, or possession of the University or University officials presumptively are public records.
 
"Such records include messages stored in an electronic or magnetic format. All e-mail communications, therefore, unless subject to a specific statutory privilege, are subject to production under the Oklahoma Open Records Act and, when relevant, to discovery in civil litigation." (Use of Electronic Mail (Revised) (2002))
 
But OSU officials point to a 2001 attorney general opinion that said an email between government employees making lunch plans – if such use is permitted by the agency – generally would not be considered a public record because it would not be "in connection with public business, spending public money or administering public property." (2001 OK AG 46, ¶ 5 n.2)
 
So the questions are whether OSU policies permit using university email for Chesapeake Energy business and whether Hargis did so.
 
"No" is the answer to the first question.
 
OSU policies limit the use of email to furthering "the teaching, research, service, and extension goals and mission of the University." (Use of Electronic Mail (Revised) (2002))
 
"The use of university computing systems for commercial purposes is strictly forbidden," OSU's Use of Electronic Mail policy states. "The sending of electronic mail, which is commercial in character, is a violation of this acceptable use policy.”
 
Another policy states the university's "computing facilities, services, and networks may not be used in connection with compensated outside work for the benefit of organizations unrelated to the University except in connection with scholarly pursuits (such as faculty publishing activities) in accordance with the University consulting policy or the policy governing Access by External Entities to University Technology Resources, or in a purely incidental way.
 
"State law generally prohibits the use of University computing and network facilities for personal gain or profit, and use of computing resources for unauthorized commercial purposes, unauthorized personal gain, or any illegal activities is prohibited." (Appropriate Computer Use (1997))
 
The answer to the second question -- whether Hargis violated the policies (and state law) -- isn't clear.
 
Hargis told The Daily O'Collegian that he normally conducts Chesapeake business on his personal Gmail account and that he cannot control the email sent to his OSU account.
 
But he also refused to disclose the content of his OSU emails related to Chesapeake.
 
"If I'm not going to release the emails, I'm probably not going to talk about what they say," Hargis told The Daily O'Collegian.
 
Well, if they're only the equivalent of Hargis making lunch plans with Chesapeake officials, he would be better served by releasing the records.
 
Otherwise, relying upon a loophole in the Open Records Act raises suspicions that Hargis doesn't want to reveal the business of a for-profit corporation that was conducted over a taxpayer-funded email system in violation of university policy and possibly state 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.
 

Gov. Fallin's office says up to 2 months to respond to request for emails regarding health insurance exchange

Gov. Mary Fallin's spokesman said it will take as long as two month to compile emails that could shed light on why she refused to create a state health insurance exchange, The Oklahoman reported today.
 
Fallin will decide which emails she will keep from the public under a claim of executive privilege, Alex Weintz told the newspaper in a meeting Thursday.
 
He estimated that compiling the "hundreds of thousands” of emails covering six months will take 100-plus man-hours.
 
"This is a time-consuming, labor-intensive process, and right now we're processing the request and we haven't denied any documents," Weintz said.
 
Fallin's legal advisers will review the emails individually, but Fallin will decide which records will be considered privileged, Weintz said.
 
FOI Oklahoma and others have criticized Fallin's unprecedented claims of executive branch privileges in response to various records requests since the spring.
 

 
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 Co. board to vote again on horse racing after original agenda apparently violated Open Meeting Act

This time the public knows in advance that the Tulsa County Public Facilities Authority intends Thursday to vote to end live horse racing at Fair Meadows Racetrack.
 
That wasn't the case five weeks ago when the authority, also known as the Tulsa County fair board, unanimously voted without comment to end the racing even though the topic wasn't on its agenda.
 
That surprise decision led state Rep. Don Armes, R-Faxon, to ask Attorney General Scott Pruitt to investigate the process surrounding the closing of the racetrack.
 
The fair board's agenda for Thursday says public comment will be heard on ending live racing at the track and that the board will "consider and take action on ... cessation of horse racing activities...."
 
But being upfront now doesn't excuse the violation on Nov. 1. Subsequently ratifying an action or decision made in violation of the Open Meeting Act does not cure the violation, the Court of Civil Appeals first said in 1981. (Matter of Order Declaring Annexation, 1981 OK CIV APP 57, ¶ 23)
 
"The harm lay in the lack of proper notice and agenda, notice and agenda which are crucial to the Sunshine Law's purpose," the court said.
 
The Open Meeting Act clearly requires that each agenda "identify all items of business to be transacted" by the public body at the meeting. (OKLA. STAT. tit. 25, § 311(B)(1))
 
Agendas should be worded in "plain language, directly stating the purpose of the meeting, in order to give the public actual notice," the court has said. (Haworth Bd. of Ed. of Independent School Dist. No. I-6, McCurtain County v. Havens, 1981 OK CIV APP 56, ¶ 8)
 
The court said 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. That includes any agency action exceeding the scope of action defined by the notice.
 
In 2009, the court said any construction of the statute that would allow a public body to consider an item not listed on its posted agenda – apart from "new business" – "totally vitiates the underlying mandate of the OMA to notify the public of the time and place of meetings of a public body, and the matters the public body intends to consider." (Okmulgee Co. Rural Water Dist. No. 2 v. Beggs Pub. Works Auth., 2009 OK CIV APP 51)
 
And the Oklahoma Supreme Court said more than 30 years ago that because the Open Meeting Act was "enacted for the public's benefit," the statute "is to be construed liberally in favor of the public." (Int’l Ass’n of Firefighters v. Thorpe, 1981 OK 95, ¶ 7)
 
Why? Because as the Court of Civil Appeals noted in 2008:

The [Open Meeting] Act is designed to ‘encourage and facilitate an informed citizenry's understanding of the governmental processes and governmental problems. … The Act serves to inform the citizenry of the governmental problems and processes by informing them of the business the government will be conducting. (Wilson v. City of Techumseh, 2008 OK CIV APP 84, ¶ 10)

So how could it be that the Tulsa County fair board -- whose membership includes all three Tulsa County commissioners -- take such a major action without having it on the agenda?
 
Armes was correct to call for an investigation into the fair board's proceedings leading to the Nov. 1 decision.
 
Let's hope that he and Pruitt follow through.
 

 
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.

FOI Oklahoma calls on Gov. Fallin to drop privilege claims, release records

 
Dear Gov. Fallin:

I am writing as president of FOI Oklahoma Inc. to express disappointment that you have withheld important records and emails you used in making decisions impacting the citizens of Oklahoma.

Your office has claimed at least three times recently that executive branch privileges allow you to hide records from public view.

This is disappointing because conducting government in secrecy defies the state's Open Records Act and frustrates the ability of citizens to understand basic functions of state government.

Your actions are puzzling because you signed a pledge on March 13, 2010, that you "will comply with not only the letter but also the spirit of Oklahoma's Open Meeting and Open Records Laws."

You also 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."

Your legal advisers have claimed that records requested by various media outlets are protected by privileges that far exceed what the state Legislature and the state Supreme Court have granted government officials.

State courts have not recognized that executive privilege and deliberative process privilege exist under the state Constitution.

Your attorney, Steve Mullins, was quoted in The Oklahoman as saying your administration is "more open than anybody else has ever been."

Yet, you want privileges of secrecy that none of your predecessors thought was necessary.

I ask you to drop the executive privilege claims and release the records withheld under those claims.

Sincerely,

Lindel Hutson
President
FOI Oklahoma Inc. 

Former Kiowa trustee reinstated

A Kiowa trustee forced to resign because he failed to take required open government training is back on the board.
 
Kiowa trustees unanimously appointed Ray Goss to fill his former Ward 4 seat after he completed the training, the McAlester News-Capital reported.
 
Goss was forced off the board in late September, five months after the deadline for him to take the daylong training that includes municipal budget requirements, the Open Meeting Act, the Open Records Act, ethics, procedures for conducting meetings, conflict of interest, and purchasing procedures.
 
"It basically reduces liability issues for cities and towns because without training on municipal laws, officials who aren't trained can get into trouble," the Oklahoma Municipal League's executive director told the newspaper.
 
A 2006 state law requires newly elected municipal officials to undergo the training in their first year of office or they "shall cease to hold the office." (OKLA. STAT. tit. 11, § 8-114(A)(C)(E))
 
Goss was elected in April 2011.
 
When Goss was forced to resign, town attorney John Thomas said his votes and decisions by the board would have to be reviewed.
 
Thomas clearly didn't think Goss should be reinstated, telling the board in September that the purpose of the statute was not to be circumvented but to cause town officials to be responsible for their jobs.
 
"The statute was put into place for a reason," Thomas said. "I want our citizens of Kiowa to know that they are getting a government that respects both the intent of the law as well as the letter of the law."
 
"We need to follow the law," he said. "That was the intention of the legislature."
 
Rather than listen to Thomas, Kiowa trustees Janelle Beaver, Bob Ramey, Theresa Ortiz and Jim Ryan thumbed their noses at him and mocked the statute by appointing Goss to his old seat a month later.
 
Goss had not lived up to his obligations as a trustee and should have been replaced with someone who would.
 

 
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.