New blog, website, resources for FOI Oklahoma

FOI Oklahoma's redesigned website is the new home of the organization's blog.
 
You can follow the blog via email by subscribing at the website. FOI Oklahoma's Twitter feed and Facebook group also can be followed from the website.
 
A number of resources, including the records training video for law enforcement agencies, are available on the redesigned website.
 
New resources include a flow chart explaining which non-profit organizations must follow the Oklahoma Open Meeting Act and what their obligations are under the statute.
 
The website was redesigned with the help of the National Freedom of Information Coalition Inc, which is hosting it. The new site was built using the WordPress 3.0 Multisite software.
 
The site also includes an RSS feed of news from other NFOIC affiliates.
 

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

Tulsa police release 911 recording; City officials slow to release emails related to problems in its green-waste program

Tulsa officials changed course Friday, releasing 911 recordings of two calls made following a state trooper-involved fatal shooting at a local motel, the Tulsa World reported today.
 
Police Chief Chuck Jordan and the city's Legal Department indicated that the decision to release 911 recordings is discretionary, not because the Open Records Act requires it.
 
"Due to the fact that it was a state issue, I spent much time in deliberation over the release of the recordings," Jordan said. "Tulsa Police Department remains committed to transparency and in the public interest we are now releasing the 911 recordings as requested by the Tulsa World."
 
The newspaper's editorial writers understandably said they are "puzzle[d] over the idea that there might be less reason for public access to public records because of 'a state issue.'"
 
For the reasons I gave Thursday, I disagree that Jordan can pick and choose which 911 calls to make public. But at least he decided to release these recordings, thereby avoiding an extended fight with the newspaper.
 
However, that wasn't the only open government problem at Tulsa City Hall.
 
The Tulsa World reported this morning that more than a month after the request, city officials haven't released "emails that could settle questions over how much Mayor Dewey Bartlett and his administration knew about problems in the city's green-waste program."
 
The newspaper asked for emails containing the phrase "green waste" sent or received in the last year by six city officials, including Bartlett, City Manager Jim Twombly and the city's lead trash managers.
 
City spokeswoman Michelle Allen told the newspaper that the city's Legal Department is reviewing each of the some 2,500 emails and attachments "for compliance (with the Open Records Act) and appropriate content to fulfilling the request."
 
According to the newspaper, Bartlett said the emails must be checked manually before being released because "we have a responsibility to the public to give the correct information and not disclose info that is personal in nature."
 
In 2006, then-Attorney General Drew Edmondson told The Oklahoman that an OSU policy requiring all public records requests to be cleared by school attorneys might violate the Open Records Act by not providing "prompt and reasonable" access.
 
"If that policy were challenged, then a judge would have to determine whether the circumstances within that particular agency are not only prudent but necessary," Edmondson said. "I would say that it is not typical and typically would not be found to be reasonable."
 
Under the Open Records Act, public bodies are required to "designate certain employees who are authorized to release records . . . for inspection, copying, or mechanical reproduction. At least one person shall be available at all times to release records during the regular business hours of the public body."
 
In a 2005 open records training video for police, Edmondson said:

That person should have a working familiarity with the Open Records Act and be able to respond to citizen inquiries for records. And that would mean in most instances, if not all instances, they should not have to ask someone else for permission or authority.

He acknowledged that the designated person could encounter "an unusual request" requiring the advice of an attorney.
 
"But that should be a rare exception," Edmondson said. "By and large, the person at the desk who is supposed to respond to open records requests should be able to do so without consultation with anybody else."
 
Tulsa city attorneys are reviewing records compiled by other employees. That adds an unnecessary -- and perhaps illegal -- delay in releasing public documents.
 
It also adds to the impression of a city administration that doesn't genuinely believe in transparent government -- a perception that Bartlett cannot afford eight weeks before he faces re-election.
 

 
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 officials refuse to release 911 recordings

The city of Tulsa's Legal Department won't release recordings of two calls made to police following a state trooper-involved fatal shooting at a local motel, the Tulsa World reported today.
 
The newspaper noted that the city has released at least seven other 911 recordings since 2010.
 
And after Tulsa's municipal employees union sued the city in June for access to a 911 recording, a city spokeswoman told the Tulsa World that the city considered 911 recordings to be public records and released them regularly.
 
But this week, Assistant City Attorney Shelton Benedict told the newspaper, "There's nothing in the (state) Open Records Act that says produce audio, and if you've got it in the past, my guess is that that would fall under the discretionary part."
 
The Open Records Act lists radio logs among the records that "law enforcement agencies shall make available for public inspection." (OKLA. STAT. tit. 51, § 24A.8(A)(4))
 
The Open Records Act doesn't define radio logs. However, an attorney general opinion interpreting the statute's previous version indicated that radio logs include "any recorded electronic transmissions made between the police dispatcher(s) and other parties." (1984 OK AG 119, ¶ 22)
 
"[R]ecorded electronic transactions with the police department are subject to the Open Records Act," said the opinion, relying upon a Wyoming case and upon Oklahoma cases broadly interpreting the term "record." (Id. ¶ 28)
 
The Tulsa Police Department's news media policy -- mimicking the current statute's definition -- defines records as

All documents, including but not limited to, any book, paper, photograph (including mugshots), microfilm, computer tape, disk, record, sound recording, film recording, video recording, or other material regardless of physical form or characteristic, created by, received by, under the authority of, or coming into the custody, control, or possession of the Tulsa Police Department.

The lawsuit filed by the American Federation of State, County and Municipal Employees Local 1180 is pending in Tulsa County District Court. Neither side has yet explained in court filings why 911 recordings are or aren't public under the Open Records Act. (American Federation of State, County and Municipal Employees Local 1180 v. City of Tulsa, No. CV-2013-690 (Tulsa Co. Dist. Ct. June 5, 2013)
 
Such recordings are routinely released by law enforcement agencies in Oklahoma. These records should be open to the public because they can reveal serious problems in the 911 system.
 
In June, for example, Delaware County residents "expressed outrage over slow response times and inadequate training by 911 dispatchers in incidents where several people, including three children, have died in the past nine months," the Tulsa World reported.
 
Most of the anger centered on the drowning death of a 7-year-old girl at the Eucha State Park pool. According to the media reports, the 911 dispatcher can be heard making several blunders during the nearly six-minute call, including misdialing the telephone number for the Jay Police Department. The sheriff requested an outside investigation into the 911 call.
 
Residents also were angry over the 911 call related to the death of a 3-year-old in a house fire near Lakemont Shore.
 
"The (911) dispatcher told her (the mother) to hang up and call the sheriff's office,” a resident told county commissioners. "Who has time to look through a telephone book?"
 

 
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, Stillwater police departments refuse to release resignation letters of officers in trouble with the law

Tulsa police officials earlier this month refused to release to FOX 23 the resignation letter of an officer sentenced to 35 years for robbing Hispanic drivers during traffic stops.
 
Stillwater police in July refused to release to NEWS 9 the resignation letter of an officer charged with stealing prescription drugs from the department.
 
Both departments claim the Open Records Act doesn't apply to the resignation letters.
 
The Open Records Act says public agencies "may keep personnel records confidential [w]hich relate to internal personnel investigations including examination and selection material for employment, hiring, appointment, promotion, demotion, discipline, or resignation." (OKLA. STAT. tit. 51, § 24A.7(A)(1))
 
But the resignation letters aren't part of the "internal personnel investigations." They are submitted by the employees.
 
The statute says, "All personnel records not specifically falling within the exceptions provided in subsection A of this section shall be available for public inspection and copying...." (§ 24A.7(B))
 
Because the resignation letters aren't specifically exempted, they must be available for public inspection and copying.
 
The statute also makes public "the records of any final disciplinary action resulting in loss of pay, suspension, demotion of position, or termination." (§ 24A.7(B)(4))
 
A 2009 attorney general opinion reiterated that once the investigation is complete and a final disciplinary action occurs, "the record(s) indicating that action must be available for public inspection and copying." (2009 OK AG 33, ¶ 29)
 
So if the police departments are correct that the resignation letters are part of the internal personnel investigations, then the resignation letters are the record indicating the final action and must be made available for public inspection and copying.
 
Public bodies also must consider that, given the intent of the Open Records Act, "disclosure is to be favored over a finding of exemption," the Oklahoma Supreme Court said in 1986. (Tulsa Tribune Co. v. Okla. Horse Racing Comm'n, 1986 OK 24, ¶ 22)
 
Or as a subsequent attorney general opinion explained, "The intent of the Act requires that questions of doubt as to the accessibility of government records be resolved in favor of access." (1988 OK AG 35, ¶ 3)
 
Interpreting the statute so that resignation letters of government employees are secret is a stretch that wrongly favors exemption over disclosure.
 

 
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.
 

Okfuskee County Commission's secret budget session apparently will be investigated for Open Meeting Act violation

Okfuskee County District Attorney Max Cook likely will ask Attorney General Scott Pruitt to investigate a secret budget meeting of the County Commission or appoint another prosecutor to do so, Cook told the Okemah News Leader late last week.
 
"Since it is a pending case and I am not suppose to comment on a pending case, I can say very little," Cook told the newspaper.
 
"It is very likely because of ethics for prosecutors in the state of Oklahoma, it will require that I disqualify my office. I will ask the attorney general to handle the matter or appoint another district attorney."
 
The three county commissioners -- Chairman Danny Wilson, Vice Chairman Bruce Smith and Max Henry -- did not provide public notice or post an agenda for a budget session with the county budget writer and County Clerk Dianne Flanders this past Monday.
 
The Open Meeting Act requires public notice and a posted meeting agenda when the majority of a public body even discusses public business, as this blog explained Wednesday.
 
The commissioners conducted the session after adjourning from their regular meeting. Okemah News Leader reporter Shakara Shepard had left but saw the county budget writer, Dan Hall, walking into the meeting room. She followed him back into the room.
 
According the newspaper's account of the session, the commissioners did more than discuss the county budget. The newspaper reported:

The commissioners made several decisions during the unposted meeting regarding various amounts of taxpayer money. Amounts were added and amounts were subtracted during the discussion. Some offices requested their department receive more money for the fiscal year. Travel expenses were added back into the budget as well.

Hall told the commissioners he would finish the budget and send the final copy to them for their approval, according to the newspaper.
 
Violating the Open Meeting Act is a misdemeanor punishable by up to $500 and one year in the county jail. (OKLA. STAT. tit. 25, § 314))
 

 
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.

Newspaper catches Okfuskee County commissioners in secret budget session

The Okfuskee County Commission meeting had adjourned Monday and a newspaper reporter had left when she saw the county's budget writer Dan Hall walking into the meeting room, the Okemah News Leader reported today.
 
The reporter returned to the room and saw the three commissioners -- Chairman Danny Wilson, Vice Chairman Bruce Smith and Max Henry -- and County Clerk Dianne Flanders discussing the 2013-14 budget with Hall, the newspaper reported.
 
Hall gave the commissioners a cash flow/cash funds report, told them that this year's budget is better than last year's, and said the sales tax increased about $100,000, according to the newspaper.
 
And this wasn't just a discussion, the newspaper reported, explaining:

The commissioners made several decisions during the unposted meeting regarding various amounts of taxpayer money. Amounts were added and amounts were subtracted during the discussion. Some offices requested their department receive more money for the fiscal year. Travel expenses were added back into the budget as well.

Hall told the commissioners he would finish the budget and send the final copy to them for their approval, according to the newspaper.
 
All that occurred with no public notice of the meeting, much less a posted agenda, wrote the newspaper's editor, Lynn Thompson.
 
If the newspaper's account is correct, Wilson, Smith and Henry held a secret meeting on the county budget in blatant violation of the state's Open Meeting Act.
 
The Open Meeting Act defines a meeting as "the conducting of business of a public body by a majority of its members being personally together or ... together pursuant to a videoconference." A majority of a public body may gather informally "when no business of the public body is discussed." (OKLA. STAT. tit. 25, § 304(2))(emphasis added)
 
The Open Meeting Act requires public notice and a meeting agenda when the majority of a public body even discusses public business, much less makes decisions.
 
Providing the public with advance notices and agendas for public meetings is at the "very heart" of the Open Meeting Act, the Oklahoma Court of Civil Appeals said in 1981. "Without public notice, Sunshine legislation is ineffective." (Matter of Order Declaring Annexation, 1981 OK CIV APP 57, ¶ 19)
 
"Sunshine legislation reaches, not just 'formal' meetings, but the 'entire decision-making process,'" the court said. (Id. ¶ 7)
 
A 1982 state attorney general opinion said:

Business should be assumed to include the entire decision-making process, including deliberation, decision or formal action. Clearly, the Legislature must have intended for the discussion stage to be covered by the Open Meeting Act. Therefore, when members of a public body meet among themselves to discus the appropriation of funds, the requirements of the Open Meeting Act must be met. (1982 OK AG 212, ¶ 3)
 
It is clear that, when members of a public body meet informally and begin discussing matters affecting the public body, regardless of whether or not there is any motive to evade the Open Meeting Act, the discussion falls under the auspices of the Open Meeting Act. (¶ 11)

In 2012, Attorney General Scott Pruitt said, "A public body is thus engaged in the 'conduct of business' when a majority of the members are considering discrete proposals or specific matters that are within the agency's jurisdiction." (2012 OK AG 24, ¶ 10)
 
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.'" (¶ 9)
 
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." (quoting 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. (¶ 9)
 
The bottom line, as then-Attorney General Drew Edmondson said, "A governmental body must operate with such openness that the citizenry is informed of its activities." (2000 OK AG 7, ¶ 30)
 
So why is public decision-making important?
 
The public policy stated in the Open Meeting Act is "to encourage and facilitate an informed citizenry's understanding of the governmental processes and governmental problems." (OKLA. STAT. tit. 25, § 302)
 
In 1978, the Oklahoma 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." (Oklahoma Ass'n of Mun. Attys v. State, 1978 OK 59, ¶ 10)
 
And as the 1982 attorney general opinion said, "An open deliberative process reveals rejected alternatives about which the public might not know if access to study sessions and deliberative meetings were denied." (1982 OK AG 212, ¶ 5)
 
Thompson noted that the Open Meeting Act "is not a new law that has just gone into effect."
 
"This is a 30-plus year old Act that has been in effect and that all elected officials should not be unaware or ignorant of the Act," he wrote.
 
The Open Meeting Act requires public notice and a meeting agenda when the majority of a public body discusses public business. The county budget is certainly the public’s business.
 
It's a blatant violation of the Open Meeting Act for a county commission to discuss the county budget with no public notice of the meeting. Any elected official who has so little respect for the people and the law should be prosecuted and sent to jail.
 
Violating the Open Meeting Act is a misdemeanor punishable by up to $500 and one year in the county jail. (OKLA. STAT. tit. 25, § 314))
 
In 1981, the state Court of Criminal Appeals upheld the convictions of the city of Medicine Park's board of trustees for failing to post meeting agendas. "Posting is required even for the most typical meeting," the court said. (Hillary v. State, 1981 OK CR 78, ¶ 6)
 
In 2002, three of Nowata's five city commissioners pleaded no contest to violating the Open Meeting Act by discussing city business at a restaurant. A police informant recorded them deciding which of the three would serve as mayor and as city treasurer and discussing "the police department budget … cutting city jobs," and disciplining the city manager.
 
What will District Attorney David Max Cook do about the Okfuskee County commissioners meeting secretly to decide the county budget?
 
The Court of Civil Appeals said in 1981 that it would not wink at Open Meeting Act violations, explaining:

[F]or to wink at violations in one case is to invite them in another. The Oklahoma Legislature, elected voice of the people of this state, mandated open meetings, including observance of the notice and agenda provisions. ... [W]ithout vigorous enforcement in the courts, laudable legislation is reduced to "mere words." Well, not this laudable legislation, not in this Court, not in this case. The Legislature has said, "Let the sun shine on government." (Matter of Order Declaring Annexation, Etc., 1981 OK CIV APP 57,¶ 31)

Let's hope Cook refuses to wink at the blatant violation in Okfuskee County. Otherwise, there's not much point in having an Open Meeting Act.
 

 
Joey Senat, Ph.D.
Associate Profesor
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.

Owasso councilman sues city over alleged open meeting, record violations

Owasso Councilman Patrick Ross sued the town on Tuesday in an attempt to make public an investigative report that led to the resignation of the city manager.
 
Ross' lawsuit, filed in Tulsa County, alleges a number of violations of the state's open government laws, including that the City Council did not vote publicly to keep that report secret, not pursue criminal prosecution of then-City Manager Rodney Ray, and whether to fire him.
 
The lawsuit asks Judge Daman Cantrell to declare invalid the city's resignation agreement with Ray and declare the investigative report to be a public record.
 
Chris Camp, Ross' attorney, argues that the City Council also violated the Open Meeting Act during meetings on May 24, June 18, June 21 and June 25 by conducting executive sessions "for the purpose of discussing personnel matters relating to the Office of the City Manager."
 
As noted by this blog on July 12, a state attorney general opinion requires that agenda items for an executive session under the personnel exemption include either the name of the person or the person's position if it "is so unique as to allow adequate identification." (1997 OK AG 61, ¶ 5)
 
The opinion agreed that placing the person's name or unique title on the agenda would lessen the confidentiality. Still, it added:

We note that for a public body to convene in executive session to discuss employment matters is not mandatory; it is simply 'permitted.' While on the other hand a public body's duty to specify on the agenda all matters to be undertaken in a meeting is absolute. (Id. ¶ 4)

As this blog did, Camp argues that listing "Office of the City Manager" isn't listing a name or unique title and is so broad that the council could have discussed any employee of that office. He notes that the title of city manager and the Office of the City Manager aren't synonymous, interchangeable terms under the city's charter and ordinances.
 
The executive sessions focused solely on Ray, the lawsuit states.
 
The council also violated the Open Meeting Act by not keeping minutes of its executive sessions on those dates, the lawsuit states.
 
Minutes of executive session discussions must be kept, the state Supreme Court said in 1980. (Berry v. Bd. of Governors of Registered Dentists, 1980 OK 45, ¶ 12)
 
A 1996 state attorney general opinion (1996 OK AG 100, ¶ 5 ) came to the same conclusion. It noted that legislators had kept confidential the minutes of lawful executive sessions under the Open Records Act (OKLA. STAT. tit. 51, § 24A.5(1)(b)) and had mandated that a willful violation of the Open Meeting Act caused the executive session minutes to be made public (OKLA. STAT. tit. 25, § 307(F)(2)).
 
Ross' lawsuit says council members were permitted to read the investigator's report only during the June 21 executive session. They weren't allowed to keep copies so the city "could respond 'truthfully' that no member of its staff or the City Council possessed a copy of the report," according to the lawsuit.
 
During the June 21 executive session, City Attorney Julie Lombardi told the council that the report was considered a confidential personnel record.
 
During that executive session, the council also discussed whether to seek criminal prosecution of Ray and a proposed resignation agreement was presented by Lombardi and discussed, according to the lawsuit.
 
It notes that neither topic was listed on the meeting agenda and the council didn't vote publicly to designate the report confidential.
 
The lawsuit points out that following that meeting, Lombardi told the Tulsa World that the investigator had presented his finding orally and that neither the city nor the council had received a written report from the investigator.
 
During the June 25 executive session, the lawsuit states, the council discussed a counter-proposal from Ray regarding his resignation agreement even though that topic was listed under a separate agenda item for public discussion.
 
Ross contends that only a vote of the council could deem the investigative report to be a confidential personnel record. Council member Jeri Moberly told the Owasso Reporter last month that the council had voted to do so on June 25 when it publicly voted to accept the resignation agreement. But the lawsuit notes that the resignation agreement didn't mention the investigative report and conceded that the agreement itself was a public record.
 
Ross' lawsuit also contends that the council violated the Open Meeting Act by conducting confidential communications with its attorney during the executive sessions even though that exemption wasn't listed on the agendas and the council didn't determine prior to going into the executive sessions that disclosure of its communication with the city attorney would "seriously impair the ability" of the council to conduct the investigation.
 
The lawsuit contends that the report is "an internal affairs investigation of a City office" and not an exempted personnel record. Placing the investigative report into Ray's personnel file did not exempt it from disclosure under the Open Records Act, the lawsuit argues. It also also notes that the report isn't actually in Ray's personnel file.
 
Even if the judge deems it a personnel record, the lawsuit argues, the report should be public as a "final action resulting in loss of pay ... or termination."
 

 
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.

Oklahoma DA Council's new leader refused to prosecute blatant Open Meeting Act violations, seems opposed to public access to police dash-cam video

The new chairman of the Oklahoma District Attorneys Council is the same DA who refused to prosecute the Bernice Board of Trustees for several Open Meeting Act violations revealed by a state audit in 2012.
 
Eddie Wyant also seems likely to be asking state legislators next year to close public access to police dash camera recordings of arrests.
 
The council is the state agency that provides training as well as administrative, financial and personnel support for the state's 27 district attorneys.
 
Wyant, district attorney for Ottawa and Delaware counties, will serve as its 2013-14 chairman by virtue of being president of the Oklahoma District Attorneys Association. He served as the previous vice chairman of the council and president-elect of the association.
 
In June 2012, Wyant decided not to file criminal charges against Bernice trustees despite a state audit detailing several violations of the Open Meeting Act.
 
The state auditor's office found instances between July 1, 2008, and June 30, 2011, in which the town trustees had abused the statute's "new business" provision and unquestionably violated the Open Meeting Act by:

• Discussing contracts of independent contractors in executive session;
• Not taking minutes of executive sessions;
• Not listing the statutory authorization for executive sessions or listing the wrong one;
• Not including the names or unique titles of employees to be discussed in executive sessions as well as not identifying the "specific purposes of the sessions – whether employment, hiring, appointment, promotion, demotion, disciplining, or resignation";
• Voting in an executive session; and
• Discussing the creation of a job, rather than hiring a specific person, in executive sessions.

One of Wyant's reasons for not prosecuting the trustees for robbing the public of its right to an open government: It did not appear that trustees personally benefited from the violations.
 
But personal gain isn't a requirement for prosecution of an Open Meeting Act violation.
 
The state Court of Criminal Appeals has said criminal intent need not be proved because the conduct is illegal by virtue of the Open Meeting Act. In other words, a crime exists because the statute deemed the conduct to be wrong. (Hillary v. State, 1981 OK CR 78, ¶ 5)
 
The Open Meeting Act also doesn't require prosecutors to prove injury to establish a prima facie case of a violation, the court said. (Id. ¶ 8)
 
Wyant's other reason: Trustees had apparently operated under the advice of their attorney.
 
That excuse ignored a long line of contrary opinions by Oklahoma courts.
 
In 2009, the Court of Civil Appeals said acting on the advice of an attorney did not excuse a public body's violation of the Open Meeting Act. (Okmulgee Co. Rural Water Dist. No. 2 v. Beggs Pub. Works Auth., 2009 OK CIV APP 51)
 
The court said the violation by the Beggs Public Works Authority, "although based on advice of counsel, constitutes a 'willful,' 'conscious' violation of the OMA 'by those who know, or should know the requirements of the Act.'" (Id. ¶ 18)
 
The court quoted from a 1984 ruling in which the Oklahoma Supreme Court said, "Willfulness does not require a showing of bad faith, malice, or wantonness, but rather, encompasses conscious, purposeful violations of the law or blatant or deliberate disregard of the law by those who know, or should know the requirements of the Act." (Rogers v. Excise Bd. of Greer County, 1984 OK 95, ¶ 14)
 
That reasoning was adopted from a 1981 Court of Civil Appeals decision in which the lower court said that even a vote taken in "good faith" could be found to be a willful violation. (Matter of Order Declaring Annexation, 1981 OK CIV APP 57, ¶¶ 24-25)
 
"If willful is narrowly interpreted, if actions taken in violation of the Act could not be set aside unless done in bad faith, maliciously, obstinately, with a premeditated evil design and intent to do wrong, then the public would be left helpless to enforce the Act most of the time and public bodies could go merrily along, in good faith, ignoring the Act," the Court of Civil Appeals explained. (Id. at ¶ 26)
 
"While we discern no bad faith, malice, or wantonness, and while the officials may not have consciously broken the law, we are well-convinced that they knew or should have known the Act's requirements and blatantly or deliberately disregarded the law," the court concluded in that case. (Id. at ¶ 30)
 
Wyant now seems interested in having state legislators overturn a recent state Court of Civil Appeals ruling that police dash camera recordings must be released to the public under the Open Records Act.
 
In July, the Oklahoma District Attorneys Association declined to file a friend of the court brief asking the state Supreme Court to hear the appeal of that decision. Wyant made the motion for the council to take no action on the city of Claremore's request, the Tulsa World reported.
 
But Wyant told the newspaper that doesn't mean prosecutors won't seek legislation to change the decision. He said release of the videos could impair a defendant's right to a fair trial because a statement on camera could later be ruled inadmissible by a court.
 
That argument against public disclosure is specious. Arrest reports and police affidavits including defendant statements are public records. Dash-cam videos also have been made public by local law enforcement agencies across the state for years.
 
At the District Attorneys Association meeting in July, prosecutors questioned why police recordings should be public but those of the Oklahoma Highway Patrol should be kept secret.
 
The state Department of Public Safety’s audio and video recordings were public records until legislators in 2005 gave DPS officials the power to keep them secret. That legislation came after an Oklahoma County trial judge ruled that the OHP videos were public because they contained facts about arrests.
 
The Department of Public Safety and OHP aren't role models for government transparency. They release the videos when it suits them, not the public.
 
The recent Court of Civil Appeals ruling is a victory for common sense and the public's need to know. Public access to dash cam recordings of arrests protects police officers from false allegations of misconduct and provides those arrested with evidence of actual abuse.
 
And as the Open Records Act states, Oklahomans "are vested with the inherent right to know and be fully informed about their government." (OKLA. STAT. tit. 51, § 24A.2)
 
That should include when government officials carrying badges and guns interact with the public.
 
As then-Sen. Jim Wilson of Tahlequah said in 2009:

Our public safety officers are public servants who work at the will of the public, so why shouldn’t the public have access to video of them doing their jobs? It seems to me that releasing these digital records will help dispel the suspicion that they have something to hide.

Tell your legislators to not only reject any attempt to close public access to police dash-cam recordings but also remove OHP's exemption.
 

 
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.
 

Jet officials sign Open Government Pledge

Two Jet town officials have pledged to "comply with not only the letter but also the spirit of Oklahoma's Open Meeting and Open Records laws."
 
City Clerk/Treasurer Stephanie L. Carson and Town Trustee Matt Morris were elected in April.
 
By signing FOI Oklahoma's Open Government Pledge, Carson and Morris pledged "to support at every opportunity ... the inherent right [of Oklahomans] to know and be fully informed about their government so that they can efficiently and intelligently exercise their inherent political power."
 
FOI Oklahoma began the Open Government Pledge in 2008 as part of a national effort to spur public commitments to government transparency from candidates for president down to city council contests.
 
Instructions and a list of signers for the 2013 and previous elections can be found on FOI Oklahoma’s website.
 

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

Owasso councilman questions legality of decision to hide findings of investigation into city manager's office

Owasso City Councilman Patrick Ross believes that only a vote of the council can keep secret the findings of the investigation that led to the resignation of the city manager.
 
Following an executive session on June 25, Mayor Doug Bonebrake told the Owasso Reporter that the investigation report compiled by Tulsa lawyer Guy Fortney would be kept confidential as a personnel record for City Manager Rodney Ray.
 
However, Bonebrake told the newspaper that the report would be kept by Fortney and not placed in Ray’s record. Such an arrangement raises additional doubt about whether the report can be considered a personnel record.
 
The City Council accepted Ray's resignation during the June 25 meeting and agreed to pay him more than $185,000. The council had placed Ray on administrative leave May 24 and authorized Fortney's investigation of an internal complaint against Ray.
 
In an email interview today, Ross said City Attorney Julie Lombardi told the council during an executive session June 21 that the report was considered a confidential personnel record.
 
But the council should have made that decision, Ross argued in a July 3 letter to the other council members, Owasso Police Chief Scott Chambliss and Tulsa County District Attorney Tim Harris.
 
"The Oklahoma Open Records Act does not require that personnel records be kept confidential," Ross pointed out.
 
Instead, the law says, "A public body may keep personnel records confidential." (OKLA. STAT. tit. 51, § 24A.7(A) (emphasis added))
 
"Therefore," Ross contended, "before sealing (or, alternatively, publishing) the results of Fortney’s investigation, the Owasso City Council was tasked with deciding whether or not it would designate such results as confidential.
 
"Further, in order for that decision to be valid, the City Council was required to adhere to the formalities of the [Open Meeting] Act, including placing the item on the agenda and publicly voting on the item. Neither happened here.
 
"Instead, the June 25th agenda contained only three items ... on which the City Council was allowed to vote, namely: (1) whether to go into executive session; (2) whether to enter into a resignation agreement with Rodney Ray; and (3) whether to appoint Warren Lehr as Interim City Manager.
 
"Nowhere on the agenda did it indicate that the City Council would be addressing and separately deciding whether or not to exercise Section 24A.7's confidentiality option with respect to Fortney’s investigative report."
 
Though not noted by Ross, the council's agendas for June 21 and June 25 might be considered violations of the Open Meeting Act for another reason.
 
Both agendas listed an executive session "for the purpose of discussing personnel matters relating to the Office of the City Manager, including matters related to job performance, such executive session provided for in O.S. 25, Section 307(B)(1)."
 
However, agenda items for an executive session under the personnel exemption must include either the name of the person or the person's position if it "is so unique as to allow adequate identification," according to a 1997 attorney general opinion. (1997 OK AG 61, ¶ 5)
 
Listing "Office of the City Manager" isn't listing a name or unique title and is so broad that the council could have discussed any employee of that office.
 
In a matter unrelated to the internal investigation, Ray pleaded not guilty Wednesday to charges of writing a bogus check in excess of $1,000 and filing a false police report.
 

 
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.

Fallin claims political influences on state policy should be kept secret

Gov. Mary Fallin is claiming an executive privilege to hide records that reveal political considerations behind her decisions on state policy.
 
Included would be documents telling Fallin "who might be supportive of certain policy agendas in the legislature, both now and in the future, whether such support would exist after an upcoming election, and whether facts exist to help persuade the legislatures and others to support the governor's agenda," according to the formal response to an Open Records Act lawsuit against the governor.
 
The Lost Ogle, represented by the ACLU of Oklahoma, is challenging Fallin's claim that executive and deliberative process privileges permit her to withhold 100 pages of advice from "senior executive branch officials" on the creation of a state health insurance exchange.
 
Fallin is the first Oklahoma governor to claim these privileges even though as a candidate she 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."
 
Fallin's unprecedented use of executive privilege in Oklahoma earned her FOI Oklahoma's annual Black Hole Award in early March.
 
In the court filing May 31, the Attorney General's Office said an "expanded, non-deliberative process component of the executive privilege protects communications needed for the executives to function in pursuit of their policy decisions...." (P. 4)
 
The response contends that The Lost Ogle must show "a substantial or compelling need for the documents" before the judge can privately inspect the records to determine if "the public interest in confidentiality" outweighs "the Plaintiff's demonstrated need for disclosure of each document." (P. 8)
 
For more background on the lawsuit and Fallin's claims of executive privilege:

• Gov. Fallin claims unprecedented constitutional privileges to hide records from public
• FOI Oklahoma calls on Gov. Fallin to drop privilege claims, release records
• Gov. Fallin claims executive, deliberative process privileges to withhold documents related to her reversal on 'Obamacare' policy
• The Lost Ogle, ACLU challenge Gov. Fallin's claim of privileges to withhold records

 
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.

Any Oklahoman may sue to enforce Open Meeting Act, appellate court rules

Oklahomans can sue to enforce the state Open Meeting Act without having to prove they were individually injured by the alleged violation, a three-judge panel of the state Court of Civil Appeals has ruled.
 
The Open Meeting Act "was specifically and especially enacted for the benefit of the public," meaning the "general public," said Judges Jerry L. Goodman, P. Thomas Thornbrugh and W. Keith Rapp.
 
Oklahomans don't have to rely upon local district attorneys to enforce the Open Meeting Act because the statute provides them with a "private right of action" to sue over violations, said the appellate judges in the decision filed Thursday.
 
They unanimously overturned Washington County Judge Russell Vaclaw's 2011 dismissal of a lawsuit alleging an Open Meeting Act violation by the Bartlesville Redevelopment Trust Authority. They remanded the case to the trial court to determine if the BRTA had violated the Open Meeting Act.
 
Vaclaw had held that Joel Rabin and Sharon Hurst had no standing to sue because they "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."
 
He said plaintiffs suing under the Open Meeting Act must demonstrate they "were directly harmed by the wrongful actions of a government in violation of the OMA." The statute "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."
 
But the appellate judges said Vaclaw "misread" the state precedent upon which he relied.
 
In Holbert v. Echeverria, 1987 OK 99, the state Supreme Court created a three-part test for determining if a private cause of action can be inferred from a regulatory statute:

1. The plaintiff is one of the class for whose special benefit the statute was enacted;
2. There is some legislative intent, explicit or implicit, suggesting that the legislature wanted to create a private remedy; and
3. Implying a remedy would be consistent with the underlying purposes of the legislative scheme.

The Court of Civil Appeals disagreed with Vaclaw's application of all three parts.
 
Unlike the statute at issue in Holbert, the Open Meeting Act "states its public policy is to inform the public citizenry. Thus, the special class is the general public, of which Rabin-Hurst are members," wrote Goodman for the appellate court.
 
Goodman said state legislators had intended to create a private remedy because the statute includes remedies outside of criminal prosecution:

• An illegal executive session subjects each member of the public to criminal prosecution "and shall "cause the minutes and all other records of the executive session, including tape recordings, to be immediately made public." (OKLA. STAT. tit. 25, § 307(F))
• "Any action taken in willful violation of this act shall be invalid." (§ 313)

"The criminal penalty of fines and imprisonment is different and apart from forcing minutes to be made public and actions to be made invalid," Goodman wrote.
 
"Although a district attorney prosecuting a criminal action could invoke those remedies, we find no reason why those remedies should be invoked strictly within the confines of a criminal case subject to the prosecutorial discretion of a district attorney," Goodman wrote. "The general public, the intended beneficiary of the [Open Meeting Act], would not be well served should that narrow interpretation prevail.
 
"The only way to effectively serve the public would be to permit these remedies to be invoked in a private action, by a member of the very public the [Open Meeting Act] was intended to serve."
 
Goodman noted a number of cases brought by private individuals wherein Oklahoma appellate courts had granted injunctive or declaratory relief under the Open Meeting Act.
 
"Had the legislature not intended for citizens to bring suit under the [Open Meeting Act] nor for civil courts to enforce §§ 307(F) and 313, it could have amended the OOMA to disallow such causes of action," Goodman said. "Failure to do so indicates the intent of the legislature to allow private actions to be brought to remediate the violation."
 
He said the two remedies also are consistent with the underlying public policy of the Open Meeting Act "to educated and inform the public on governmental processes."
 
"As the underlying purpose of the [Open Meeting Act] is, at its very core, to maintain governmental transparency through open meetings, the remedies provided for in the statute, and requested by Rabin-Hurst, logically uphold the purpose of the OOMA," Goodman wrote.
 
He disagreed with BRTA's argument that criminal prosecution was the only appropriate remedy.
 
"Suffice it to say, a criminal action subject only to prosecutorial discretion of a district attorney is likely to result only in a fine, and does not 'right the wrong' of an OOMA violation," Goodman wrote. "Whereas, making public the minutes of an improperly-held executive session and invalidating action take at same does 'right the wrong' of the violation.
 
"If the wrong is keeping secret information that should be publicly known, then the logical remedy is to disclose the secret to the public. Such remedies are meaningful and vigorously uphold the purpose of the OOMA."
 
The Court of Civil Appeals decision refutes not only Vaclaw's ruling but also a notion that began with six Tulsa City Council members in 2010.
 
In a motion to dismiss an Open Meeting Act lawsuit against councilors Bill Christiansen, Maria Barnes, Jack Henderson, Chris Trail, Roscoe Turner and Rick Westcott, their attorneys argued that private individuals had no right to sue over alleged Open Meeting Act violations. Tulsa County Judge Deborah C. Shallcross agreed in 2011 prior to Vaclaw's ruling.
 
Rabin said today that he and Hurst have spent tens of thousands of dollars fighting their case -- which hasn't even gone to trial yet to determine if a violation occurred. They deserve public recognition and gratitude for defending the basic right of all Oklahomans to sue to enforce their right to know under the Open Meeting Act.
 
Because as the appellate judges seem to realize -- Oklahomans can't rely upon district attorneys to vigorously and consistently enforce the law.
 
The next step should be state legislators amending the Open Meeting Act to explicitly grant attorney's fees and court costs to successful plaintiffs. Private individuals shouldn't have to foot the bill when it falls on them to prove government officials violated 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.

Police dash cam video, audio recordings of arrests are public record, Okla. Court of Civil Appeals rules

A police dash cam video of a DUI arrest contains facts concerning the arrest and therefore is public under the state Open Records Act, a three-judge panel of the Oklahoma Court of Civil Appeals ruled 2-1 Friday.
 
In overturning a Rogers County trial judge, the majority relied upon a 2004 state Supreme Court ruling that Department of Public Safety recordings of administrative hearings concerning revocation of drivers' licenses are public.
 
"If an Implied Consent hearing is considered 'facts concerning the arrest,' then surely the video and/or audio recording of the actual arrest must also constitute 'facts concerning the arrest,'" said Judges Robert Bell and Kenneth Buettner on Friday.
 
Chief Judge Larry Joplin cast the dissenting vote but with no written opinion.
 
The Oklahoma Open Records Act makes public the "facts concerning the arrest, including the cause of arrest and the name of the arresting officer." (OKLA. STAT. tit. 51, § 24A.8(A)(2))
 
The Oklahoma Supreme Court in 2004 said the DPS recording of administrative hearings contained facts concerning arrests and therefore are open under the Open Records Act. (Fabian & Assoc., P.C., v. State ex. rel. Dept. of Public Safety, 2004 OK 67)
 
But in 2011, a Rogers County trial judge ruled that Claremore Police Department dash cam recordings were not public records.
 
Associate District Judge Sheila A. Condren said the state Supreme Court case dealt "with what amounts to a transcript of a public hearing."
 
"In contrast, the 'dash cam' recording is a direct piece of evidence," she said.
 
Bell and Buettner said her "holding that the video is exempt because it could be used as evidence in a subsequent criminal prosecution is without legal support."
 
"There is no such exemption enumerated in the Act," they noted.
 
They also noted that although state legislators had exempted Oklahoma Highway Patrol video and audio recordings in 2005 following an Oklahoma County district judge's ruling barring the OHP from keeping videotapes of traffic arrests secret, no such exemption existed for local law enforcement.
 
Condren also had ruled that Claremore did not violate the Open Records Act because the requesters had listed the wrong date -- April 4, not March 4 -- for the arrest and therefore no such video existed for that date.
 
"It is not reasonable to expect a public agency to anticipate what records are being requested," she reasoned. "It is the responsibility of the requesting party to provide accurate information regarding the records they seek."
 
But Bell and Buettner emphatically overturned Condren on that point as well.
 
Police officials might have been initially confused by the wrong date but had subsequently provided many documents concerning the arrest, Bell and Buettner said.
 
They noted that Claremore Police Chief Stan Brown testified that he understood the request was for records of a March 4 arrest and that he refused to provide the video because of his departmental policy requiring such video be requested from the district attorney's office.
 
Brown "knew exactly what" records were being requested, concluded Bell and Buettner.
 
Condren's conclusion that the city had "technically complied" with the request "because of the erroneous date is clearly contrary to the weight of the evidence," the two appellate judges ruled.
 
Bell and Buettner's ruling is a victory for common sense and the public's need to know. Public access to dash cam recordings of arrests protects police officers from false allegations of misconduct and provides those arrested with evidence of actual abuse.
 
Local law enforcement officials typically release dash cam videos. But I won't be surprised if cities and sheriffs ask legislators next year for the same exemption granted to the Oklahoma Highway Patrol.
 
I hope that enough legislators will recognize the value of public access to such recordings and will not only reject such a request but also remove the exemption for OHP video and audio.
 

 
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.

OCU fails to comply with Clery Act requirements

Oklahoma City University failed to make its updated crime log publicly available in recent months despite being required by federal law to do so, campus journalists reported recently.
 
OCU officials also refused to provide archived crime logs promptly and failed to publish up-to-date annual crime statistics by the required deadline, reported MediaOCU.com.
 
The U.S. Department of Education office that investigates Clery Act violations has been sent the students' articles. Schools can be fined up to $35,000 for each infraction of the Clery Act.
 
The Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act explicitly requires private universities that receive federal funding and maintain a police department to make a daily crime log available for public inspection during normal business hours. (20 USC §1092(f)(4)(A)(B)))
 
All crimes must be added to the log within two business days (Monday through Friday, except for school holidays) of their initial report to campus police.
 
But OCU officials were unable to provide current crime logs on April 2 and April 11 when requested by student reporters. OCU officials said the crime logs were available on the police department's website.
 
But the students discovered that the most-recent crime log entry was Jan. 31. Madi Alexander's story included a screen shot of the online crime log from April 11.
 
Not until April 16 did OCU officials correct the online crime log, Alexander reported.
 
OCU spokeswoman Sandy Pantlik blamed the 10 weeks of missing crime logs on a technical glitch.
 
In a written statement, Pantlik implied that OCU hadn't violated the Clery Act because the school had sent "crime stats via email on a regular basis to a broad list of campus recipients, including MediaOCU."
 
"MediaOCU did post OCU crime logs and police reports to the university website throughout February, March and the first of April, making the statistics available through an online source associated with the university," Pantlik wrote.
 
However, OCU did not send all crime log entries to the student media. Moreover, I'm sure that student media's posting of some crime reports didn't absolve OCU of its statutory obligation to have all crime logs publicly available.
 
The U.S. Department of Education seems to agree.
 
"Your log may be either hard copy or electronic," says the department's handbook on complying with the Clery Act. "If your institution has an electronic log and there are technical problems that make it unusable, use a hard copy log as a temporary replacement until the problems are resolved." (p. 95)
 
OCU officials also refused to provide archived crime logs to Alexander within two business days of her request.
 
Pantlik said OCU is "not required the Clery Act, by the Clery Act regulations, or by the Handbook to make these archived logs available upon request." Instead, she said on April 19, the records would be provided within 30 days.
 
But the federal regulations for complying with the Clery Act say portions of crime logs older than 60 days must be made "available with two business days of a request for public inspection." (34 CFR 668.46(f)(5))
 
Alexander said Wednesday (May 22) that she hasn't received the archived logs.
 
Alexander also reported that OCU had failed to include its 2011 crime statistics in its 2012 report. The university had included only 2008-2010.
 
The Clery Act requires schools to publish annual security reports that include crime statistics for the most recent calendar year and two preceding calendar years. (20 USC §1092(f)(1)(F)))
 
The report must be published and distributed by Oct. 1.
 
"This is a firm deadline. There is no grace period and there are no exemptions," the handbook emphasizes.
 
Alexander noted that OCU's security report wasn't corrected until April 21 and only after she and another reporter brought other apparent Clery Act violations to the attention of school officials.
 
The students had also pointed out that victim addresses were included in 10 crime log reports.
 
Pantlik said OCU "is not required by the Clery Act or by federal regulations adopted with respect to the Clery Act to remove room numbers from university crime logs."
 
But the statute says, "All entries that are required pursuant to this paragraph shall, except where disclosure of such information is prohibited by law or such disclosure would jeopardize the confidentiality of the victim, be open to public inspection within two business days of the initial report being made to the department or a campus security authority." (20 USC §1092(f)(4)(B)(i)))
 
The handbook explains:

[I]f the state crime log requires the victims’ names to be listed, for Clery purposes those names must be redacted for public inspection. The federal Clery Act regulations state that a disclosure may not jeopardize the confidentiality of the victim. This takes precedence over state crime log laws. (p. 90)

Pantlik said OCU "does attempt to follow the guidelines set forth in the Handbook." The addresses were later redacted.
 
OCU officials remain adamant that they have not violated the Clery Act.
 

 
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 mayoral candidate won't sign FOI Oklahoma's Open Government Pledge

Kathy Taylor won't sign a pledge promising voters that she will comply with the state's open government laws if elected to her old job as Tulsa mayor.
 
Taylor and her two opponents, Mayor Dewey Bartlett Jr. and former City Councilman Bill Christiansen, were sent letters Monday asking them to sign FOI Oklahoma's Open Government Pledge as they campaign for Tulsa's first non-partisan mayoral primary on June 11.
 
Bartlett and Christiansen haven't responded to the request. Both men signed the pledge when they ran for offices in 2009: Bartlett for mayor, and Christiansen for re-election to the City Council.
 
Taylor's political director, Monroe Nichols, responded on her behalf in an email Tuesday.
 
"While Kathy is a supporter of your message and mission, she's not signing issue pledges during the campaign," Nichols wrote.
 
Some 140 candidates have signed the pledge since FOI Oklahoma began it in spring 2008. Just over half -- 73 -- have been elected.
 
The pledge was begun as part of a national effort to spur public commitments to government transparency from candidates for president down to city council contests.
 
By signing the pledge, candidates for state and local offices promise that their respective governments will "comply with not only the letter but also the spirit of Oklahoma's Open Meeting and Open Records laws."
 
They also promise "to support at every opportunity 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 so that they can efficiently and intelligently exercise their inherent political power."
 
Taylor, Bartlett and Christiansen recently responded to a Tulsa World survey asking how they "would improve the openness of city government, including communications and open records policies."
 
Taylor said Tulsa "should have an open-platform data portal that allows fast responses to Open Records requests, instant access to city information and encourages the development of new and innovative applications for that data that improve the way the city runs."
 
Nichols described Taylor as "a strong supporter of transparency and open government."
 
Taylor's campaign website says that if elected, she will:

• Improve city government transparency and responsiveness by working to speed up responses to public requests for information, and increasing accountability to the public for timely service.
• Bring Tulsa government into the 21st Century by making more public records, forms, and services accessible to all citizens online.

However, it doesn't mention ensuring Tulsa's compliance with the state's open government laws.
 

 
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.

Student journalist sues OU for access to parking ticket information

The University of Oklahoma's claim that parking tickets issued to students are private educational records is being challenged in court by a former online editor for The Oklahoma Daily.
 
Joey Stipek is asking a Cleveland County judge to order OU officials to release all parking citations issued by the university.
 
Stipek's lawsuit, filed Friday, stems from OU's refusal to release electronic copies of parking citations issued to students in the spring 2012 semester. OU's open records officer, Rachel McCombs, claimed the information is confidential under the federal Family Educational Rights and Privacy Act, or FERPA, according to Stipek's lawsuit.
 
OU and Oklahoma State University officials have made that claim for years even though courts in other states have ruled otherwise.
 
In 1998, for example, the Maryland Court of Appeals unanimously ruled that FERPA "was not intended to preclude the release of any record simply because the record contained the name of a student." (Kirwan v. The Diamondback, 721 A.2d 196, 27 Media L. Rep. 1399 (Md. Ct. App. 1998))
 
The court reasoned:

The federal statute was obviously intended to keep private those aspects of a student's educational life that relate to academic matters or status as a student.
 
Nevertheless, in addition to protecting the privacy of students, Congress intended to prevent educational institutions from operating in secrecy.
 
Prohibiting disclosure of any document containing a student's name would allow universities to operate in secret, which would be contrary to one of the policies behind the Family Educational Rights and Privacy Act.
 
Universities could refuse to release information about criminal activity on campus if students were involved, claiming that this information constituted education records, thus keeping very important information from other students, their parents, public officials, and the public.
 
We hold that "education records" within the meaning of the Family Educational Rights and Privacy Act do not include records of parking tickets or correspondence between the NCAA and the University regarding a student-athlete accepting a loan to pay parking tickets.

The university's student newspaper had sought the records after learning that a basketball player had nearly 300 parking violations, many for parking in handicapped spaces, and more than $8,000 in unpaid parking fines.
 
In 2011, a North Carolina judge ruled that parking tickets issued to UNC athletes "are not education records protected by FERPA."
 
The "remote possibility" that repeated parking violations would result in disciplinary action "does not constitute a sufficient 'threat' to cloak every student with invisibility about the number of parking tickets he or she receives," the judge said.
 
(Similarly, the judge ruled that student phone numbers on UNC coaches' cell phone bills were public records, saying: "FERPA does not provide a student with an invisible cloak so that the student can remain hidden from public view while enrolled at UNC. The telephone number is not part of the education record protected by FERPA.")
 
The N.C. judge's ruling was another example of courts telling universities that "FERPA is not to be applied in an absurd way to conceal information that is not educational," said Frank LoMonte, executive director of the Student Press Law Center.
 
LoMonte recently said OSU officials shouldn't just ignore those court rulings and should stop "relying on this unsustainable interpretation of FERPA that is inconsistent with the way other people read it and undermines the public interest."
 
If parking tickets are indeed educational records, LoMonte told The Daily O'Collegian, then the university is violating FERPA by placing them on windshields in public view.
 
"They certainly wouldn't take your report card and stick it under your windshield wiper and leave it on public display for anyone to see," LoMonte said.
 
Stipek had sought OU's parking tickets to determine if preferential treatment had been given to anyone, especially athletes.
 
After being denied access, Stipek asked for all non-student parking citations. But the university replied that it didn't have the technological capability to redact student information from the database, according to his petition.
 
Stipek's lawsuit was filed against McCombs and OU President David Boren. Stipek's attorney is Nicholas Harrison, who received FOI Oklahoma's 2012 Ben Blackstock Award because of his reporting for The Oklahoma Daily as a University of Oklahoma law school student.
 

 
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.

Re-elected incumbent, two other Stillwater candidates pledged to comply with open government laws

Stillwater City Council incumbent Joe Weaver had signed FOI Oklahoma's Open Government Pledge before his re-election in early April.
 
Nine pledge-signers, including Weaver, were elected in municipal elections on April 2.
 
Weaver, OSU's administration & finance vice president, promised that he and the Stillwater city government "will comply with not only the letter but also the spirit of Oklahoma's Open Meeting and Open Records laws."
 
Weaver also pledged "to support at every opportunity 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 so that they can efficiently and intelligently exercise their inherent political power."
 
Also signing the pledge prior to the election were Weaver's opponent OSU employee Micah LeFebvre and incumbent Philip Pina, who lost to Gina Noble, an OSU faculty member who also had signed the pledge.
 
The Stillwater League of Women Voters collected the signed pledges from Weaver, LeFebvre and Pina in late March but didn't mail them to FOI Oklahoma until after the election.
 
FOI Oklahoma began the Open Government Pledge in spring 2008 as part of a national effort to spur public commitments to government transparency from candidates for president down to city council contests.
 
Signers are listed on the FOI Oklahoma website.
 

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

State officials refuse to release health care report from consultant

State officials are refusing to release a consultant's findings for a plan to cover people without health insurance, Oklahoma Watch reports.
 
The Oklahoma Health Care Authority is claiming the findings, though delivered to the state agency, are covered by an exemption in the state Open Records Act for "personal notes and personally created materials."
 
Oklahoma Watch noted that the state hired the consultant, Leavitt Partners, for $500,000 in January to review operations of the state’s Medicaid program, SoonerCare, as well as other states' health programs that would expand health coverage and improve health outcomes.
 
Oklahoma Watch said the final report would be released June 30 and incorporate feedback from state officials.
 
In the meantime, the Oklahoma Open Records Act contains no provision allowing governments to keep "drafts" secret from the public.
 
The statute permits governments to keep confidential "personal notes and personally created materials . . . prepared as an aid to memory or research leading to the adoption of a public policy or the implementation of a public project."
 
The exemption applies only prior to the official "taking action, including making a recommendation or issuing a report." (OKLA. STAT. tit. 51, § 24A.9)
 
An agency spokeswoman told Oklahoma Watch that the consultant’s draft report contains the findings of its months-long study.
 
Some of the findings and recommendations from the plan will be presented in a PowerPower slide-show presentation at the Oklahoma Health Care Authority's board meeting Thursday, Oklahoma Watch reports.
 
An Oklahoma Health Care Authority spokeswoman said the slide show will be released after the meeting.
 
But Howard Pallotta, general counsel for the Health Care Authority, told Oklahoma Watch that the agency does not have to immediately release the draft report or PowerPoint images in response to Oklahoma Watch's records request.
 
Pallotta's statement seems contrary to the Open Records Act and to a 2009 state Court of Civil Appeals decision ordering Lawton officials to release a "draft" audit conducted by an independent auditor. (Int'l Union of Police Assoc. v. City of Lawton, 2009 OK CIV APP 85)
 
"In determining whether material is a 'record' subject to inspection under the ORA, or exempted 'personally created materials,' we 'focus on the totality of the circumstances surrounding the creation, maintenance, and use of the document,' regardless of the 'status' of a document as 'preliminary' or 'final,'" the court said. (Id. ¶ 18)
 
At the time the police union had requested the audit, the court noted, "City clearly possessed and controlled a preliminary draft of the requested Audit Report." (Id. ¶ 19)
 
"And most importantly," the court said, "it is also undisputed that City used the draft Audit Report as the basis for testimony and evidence offered at the arbitration hearing, and the fact that City withdrew its exhibits based on the draft Audit Report does not alter the fact that City used the draft Audit Report to prepare for and oppose Union's requested arbitration. (Id.)
 
"Given ... City's use of the draft Audit Report to prepare for and oppose Union's demanded arbitration, we hold Union was entitled to inspect and copy the draft Audit Report under the ORA," the court concluded. (Id. ¶ 20)
 
Oklahoma Health Care Authority officials concede that the state agency has received the report and is making use of it. In other words, state officials clearly possess and control the report.
 
The court in 2009 had also taken into account the purpose of the Open Records Act "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." (Id. ¶ 13, quoting OKLA. STAT. tit 51, § 24A.2)
 
Given that purpose, the Oklahoma Supreme Court said in 1986, "Disclosure is to be favored over a finding of exemption" when public bodies and courts rule on records requests. (Tulsa Tribune Co. v. Okla. Horse Racing Comm’n, 1986 OK 24, ¶ 22)
 
The Oklahoma Health Care Authority is "the primary entity in the state of Oklahoma charged with controlling costs of state-purchased health care." The seven members of the OHCA Board are appointed by the governor, Senate president pro-tempore and House speaker.
 
Time for these elected officials to tell their political appointees to cough up now the report already in the hands of OHCA.
 

 
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.
 

OSU officials drop proposed policy forcing faculty lawsuits for personnel records

Oklahoma State University won't be adopting the University of Oklahoma's policy of forcing faculty to sue for personnel records guaranteed to them by the state Open Records Act.
 
OSU officials dropped the proposed policy change on peer-review letters last week after the chairman of its governing board told them he opposed it because it would violate the Open Records Act.
 
Just like OU's current policy, the proposed change would have forced OSU faculty to sue their school to obtain un-redacted copies of letters written by professors at other universities that OSU officials use in deciding whether to grant tenure and promotions to faculty.
 
Under OSU's current policy, faculty members may obtain the original peer-review letters if they chose early in the process not to waive their right to them under the Open Records Act. (Reappointment, Promotion and Tenure Process for Ranked Faculty, 2.2(b)(7)(2006))
 
But the proposed change would have dropped the waiver option and provided faculty members with copies of their letters only after each "external reviewer's name, institutional affiliation and relationship with the candidate are redacted."
 
The university would have provided the faculty member with the original letters "only when required to do so by a legal proceeding."
 
OSU officials had wanted the new policy approved by the Oklahoma A&M Board of Regents on Friday. But Tuesday, OSU General Counsel Gary Clark told President Burns Hargis and Provost Robert Sternberg via email that regents Chairman Andy Lester "says that he would oppose the change … as violating the Open Records law."
 
"We need to pull the item from the agenda," Clark wrote.
 
Sternberg relayed that news to Faculty Council officers via email, adding, "It sounds like the new proposed procedure with redacted letters is dead.
 
"I will leave it to my successors to figure out how to move forward," said Sternberg, who is leaving OSU to become president of the University of Wyoming.
 
Lester's rejection of the change seemed to perplex Sternberg, in part because OU Provost Nancy L. Mergler had told Sternberg that OU has used the same policy for years.
 
"I thought that OU has used an analogous procedure for years with no problem, but perhaps I misunderstand what they do," Sternberg wrote.
 
No, he hadn't misunderstood. Under OU's policy, peer-review letters "solicited in confidence or sent with the expectation of confidentiality shall be deemed confidential and unavailable to the employee unless otherwise ordered by a court of law." (Access to Personnel File Policy, Faculty Handbook, 5.34.4)
 
Put another way by an OU official:
 
"The way I think Legal articulates our position is, we recognize that we have to give them up unredacted, but we won’t unless you sue us to get them," explained OU Associate Provost Gregory M. Heiser in an email that Mergler forwarded to Sternberg in October 2011.
 
Sternberg had asked Mergler whether OU's peer-review letters were open "or do you have a way around this?"
 
She told Sternberg that "twice in the past 16 years [OU] had to produce redacted letters when there was a faculty appeal of the tenure recommendation and the faculty member hired independent counsel."
 
However, Mergler also told Sternberg, "I am sure with the current tea party folks so intent on open records ……that we will be getting a more aggressive challenge sometime soon."
 
OU should expect challenges to a policy that forces faculty members to sue for their personnel records.
 
Such a policy violates the state Open Records Act, as I explained to the Faculty Council, with Hargis and Sternberg attending, in March 2012 and reiterated in The Daily O'Collegian in February.
 
The Open Records Act grants each public employee "a right of access to his own personnel file." (OKLA. STAT. tit. 51, § 24A.7(C))
 
A 1986 Oklahoma attorney general opinion also supports the right of faculty members to obtain un-redacted peer-review letters. (1986 OK AG 39)
 
The opinion said personnel investigations are part of personnel files and that Oklahoma State Bureau of Investigation employees were entitled to review any materials gathered in the background investigation of them. (¶ 3)
 
Moreover, OSBI could not withhold the names of confidential informants who had provided information for criminal background checks of employees unless the informant objected and then the agency determined on a case-by-case basis that releasing the name would damage the confidential informant. (¶ 16)
 
But OSU officials wanted to create – and OU has – a blanket policy of withholding the names of full professors at other universities who write peer-review letters for tenure and promotion decisions. Those authors – who OSU policy says "should be leading scholars in their disciplines" – would be hard-pressed to reasonably argue that they would be "damaged" by the disclosure of their identities to the OSU faculty members.
 
Not telling faculty that they have a right to the peer-review letters doesn't mean the right is nonexistent. It does, however, say quite a bit about the ethics and integrity of an institution's leaders.
 
Fortunately, Lester was willing to respect the statutory right of OSU faculty members to access their personnel files without having to sue the school.
 

 
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.