Thursday, February 21, 2013

DA: Sue me if you want records

The district attorney for Payne and Logan counties told the OSU student newspaper Wednesday that it would have to sue him if it wants to know the employment dates of a former assistant.
Otherwise, Tom Lee said he won't release the information even though -- as The Daily O'Collegian reporters pointed out -- the state Open Records Act explicitly requires that employment dates for government employees be available to the public. (Okla. Stat. tit. 51, § 24A.7(B)(3))
In a recorded interview, Lee cited no exemption, saying only that the information about Jill Tontz is an "internal personnel issue."
"We will resist that," Lee said in response to being read the Open Records Act provision.
"If I get sued, I’d rather get sued by your newspaper than her," Lee said.
But the Open Records Act says he can't be held civilly liable for damages for releasing records in accordance with the Open Records Act. (Okla. Stat. tit. 51, § 24A.17(D))
The statute does not create a right of individual informational privacy that would block access to government-held information. Instead, the statute says, "The privacy interests of individuals are adequately protected in the specific exceptions to the Oklahoma Open Records Act or in the statutes which authorize, create or require the records." (Okla. Stat. tit. 51, § 24A.2)
The reporters said Lee also asked why they wanted the information. But a 1999 attorney general opinion said public officials could ask only for enough information to determine if a search fee should be charged.
Otherwise, the opinion said, "In no event could a public body or public official ever require a requestor to provide the reason for a request for access to records...." (1999 OK AG 55, ¶¶ 18-19)
Reporters cannot be charged a search fee.
Lee was appointed to the job by Gov. Mary Fallin two years ago this month.
Lee's refusal to abide by the Open Records Act is outrageous and an insult to the public.
Here is Lee, the official responsible for enforcing the Open Records Act, blatantly violating the law. And if Lee won't comply with the law, why should other public officials in Payne and Logan counties do so?
So whom is the newspaper supposed to turn to for help? State Attorney General Scott Pruitt? The AG's Office has long maintained that it has no authority to enforce our open government statutes.
Coincidently, House Bill 1450 by Rep. Jason Murphey, R-Guthrie, would give Oklahomans the right to appeal record denials to the attorney general, who would be given the power to order the document released immediately. Best solution? Not sure.
Maine's first Public Access Ombudsman and the chairman of Iowa's new Public Information Board will be among the speakers for FOI Oklahoma's upcoming 2013 Sunshine Week Conference. They will explain their roles in making government accessible to the public and give some advice on which approach Oklahoma should eventually adopt.
In the meantime, Lee expects the public to file expensive and time-consuming lawsuits to obtain information guaranteed by the Open Records Act. It's no skin off his nose. If the newspaper were to sue and win, its attorney's fees wouldn't come out of his pocket. Taxpayers would pick up the tab.
But violating the Open Records Act is also a misdemeanor, punishable by up to one year in the county jail and a $500 fine.
I've suggested that the newspaper file a criminal complaint against Lee and also a complaint with the Oklahoma Bar Association.
Lee's refusal to provide the information exemplifies why Oklahomans need a change in the way their Open Records Act is enforced.
Because we cannot count on district attorneys to support the inherent right of Oklahomans "to know and be fully informed about their government." (OKLA. STAT. tit. 51, § 24A.2)

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

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