Norman council candidate signs Open Government Pledge

A Norman City Council candidate has promised that if elected Tuesday, she and the city government "will comply with not only the letter but also the spirit of Oklahoma's Open Meeting and Open Records laws."
 
By signing FOI Oklahoma's Open Government Pledge, Lynne Miller also promised "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."
 
Miller, a retired Norman Public Schools principal, is seeking the Ward 5 seat in 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
 

Gov. Fallin claims executive, deliberative process privileges to withhold documents related to her reversal on 'Obamacare' policy

Gov. Fallin won't release 100 pages of advice from her "senior executive branch officials" on the creation of a state health insurance exchange, her general counsel told reporters Friday.
 
Fallin invoked executive, deliberative process and attorney-client privileges to keep the documents from the public, Steve Mullins said in a letter to reporters picking up digital copies of more than 50,000 pages.
 
Claiming executive and deliberative process privileges to hide records is unprecedented for an Oklahoma governor. Our state courts have not recognized these privileges. The state Open Records Act doesn't include these exemptions.
 
But Mullins, a former federal prosecutor, contends that Fallin should be allowed to claim the same privileges given to the U.S. president.
 
The irony is that while many Oklahomans are calling on Fallin to reject what they believe is federal interference in their lives, her attorney is relying in part on federal law to hide government documents from them.
 
Mullins also asserts that Fallin's executive and deliberative process privileges are grounded in the state Constitution provision creating three branches of government. (OKLA. CONST. art. 4, § 1)
 
Other attorneys disagree:
 
"To my knowledge there is no exception in the Open Records Act, nor is there any case law, affording an executive officer in Oklahoma, a public official in the executive branch in Oklahoma, for some kind of executive privilege or deliberative process privilege that is being exerted," media attorney Bob Nelon told The Norman Transcript on Friday.
 
"They are creating that, in my view, out of whole cloth," Nelon said. "They’re making it up as they go."
 
ACLU Oklahoma Legal Director Brady R. Henderson agreed with Nelon.
 
"They're using assertions of executive privilege that aren't in the law to limit people's access to government," Henderson told the Tulsa World on Friday.
 
"At the end of the day, it's extremely hard, if not impossible, for the public to review that decision. It effectively is the government saying, 'You don't need to see what I'm doing, just trust me.'"
 
Executive and deliberative process privileges represent a disagreement over the public's fundamental role in overseeing its government, including the formulation of policy on its behalf.
 
The records released Friday -- and presumably those withheld -- concern Fallin's policy decisions regarding "Obamacare," including her decisions to reject federal funding for Medicaid expansion and not to build a state-based health insurance exchange. Fallin had first accepted a $54 million federal grant to create the exchange, then abruptly reversed course and returned the money.
 
Knowing why action was taken or not taken is as important as knowing what the outcome is. The public is entitled to evaluate what was considered and why it was rejected. Was it for the best reasons, or just for politics?
 
Oklahomans should know because it is our government. The state Open Records Act emphasizes:

As the Oklahoma Constitution recognizes and guarantees, all political power is inherent in the people. Thus, it is the public policy of the State of Oklahoma that the people are vested with the inherent right to know and be fully informed about their government. (OKLA. STAT. tit. 51, § 24A.2)

As a gubernatorial candidate, Fallin signed FOI Oklahoma's Open Government Pledge, promising to support that right "at every opportunity."
 
But her legacy will be creating a layer of secrecy for governors to hide behind.
 

 
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.
 

ACLU of Oklahoma threatens Gov. Fallin with lawsuit over records denial, notes apparent Open Records Act violation by her office

If Gov. Mary Fallin continues to deny access to emails and other correspondence related to her refusal to create a state health insurance exchange, the ACLU of Oklahoma will seek a court order compelling her to release the records, the organization said Wednesday on behalf of The Lost Ogle.
 
The website's Dec. 10 request for the records has been "met with gross indifference, if not outright defiance," ALCU Legal Director Brady R. Henderson said in a letter Tuesday to Fallin's general counsel, Steve Mullins.
 
Henderson said that when he went to the governor's office this past Thursday and asked to inspect "whatever records were available on hand," he was told that Mullins is the only person authorized to release records and that he was out of town for the week.
 
However, the Open Records Act requires that "at least one person shall be available at all times to release records during the regular business hours of the public body." (Okla. Stat. tit. 51, § 24A.5(6))
 
Henderson noted in his letter, "The Open Records Act is quite explicit on this point.
 
"If this violation ... continues following a reasonable period in which to make corrections, there can be no question that it is a willful violation, and thus appropriate for criminal prosecution," Henderson said.
 
Henderson also noted that while The Lost Ogle has "received no substantive response" to it records request, other journalists seeking the same records "have been met with false claims of a non-existent 'executive privilege' to deny them records to which they are lawfully entitled."
 
Coupled with the office's failure to have someone available to release records, Henderson said, the claim of executive privilege "suggests that Governor Fallin not only fails to take the Open Records Act seriously, but fails to understand the broader implications for the citizens of Oklahoma.
 
"Such conduct rides roughshod over the people's right to open and accountable government," Henderson said.
 
(Read the ACLU of Oklahoma press release issued Wednesday.)
 

 
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.
 

Blanchard, Depew incumbents seeking re-election promise to comply with spirit, letter of open government laws

Blanchard Mayor Frank Broyles and Depew Town Trustee Mylora Tuttle have signed FOI Oklahoma's Open Government Pledge as they seek re-election April 2.
 
Broyles and Tuttle pledged that if re-elected, they and their municipal governments "will comply with not only the letter but also the spirit of Oklahoma's Open Meeting and Open Records laws."
 
They also promised "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."
 
Broyles had signed the pledge in 2011 prior to being elected to fill an unexpired term to represent Ward 4 on the City Council.
 
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
 

OSU winner of Black Hole Award from national SPJ

The national Society of Professional Journalists has selected Oklahoma State University as the winner of its third-annual Black Hole Award.
 
Oklahoma State was nominated by the Student Press Law Center for, among other things, ignoring the Clery Act in not notifying students, the public or its own police department that university officials were aware of the presence of an accused serial sex offender on campus. When asked why, OSU officials cited FERPA confidentiality requirements.
 
SPJ FOI Committee member Don Meyers said:

Using a federal education privacy law that pertains to grades to keep the campus in the dark about a sex offender who appears to be predatory is the textbook definition of egregious. If a municipal police force had pulled that shenanigan, they'd be in trouble on multiple fronts. FERPA was not meant to be a "Harry Potter"-like invisibility cloak that could turn any record that names a student into a protected document.”

(The Board of Regents for Oklahoma State University and the OSU administration were given FOI Oklahoma's Black Hole Award in 2009 for "routinely conducting the public’s business outside the public’s view. Regents secretly discuss proposals among themselves and with college officials prior to public meetings.”
 
OSU administrators were faulted for claiming public business conducted on personal smart phones is secret, in contradiction to interpretations by attorneys general in several states. An Oklahoma attorney general opinion later said public business is public regardless of whether the government or the official owns the device used to create or maintain the record.)
 
For information on SPJ's Black Hole Award, contact Linda Petersen, chairman of the national SPJ FOI Committee, at 801-554-7513.
 

 

Guthrie candidates sign Open Government Pledge

A Guthrie city councilman running for mayor and a fellow incumbent seeking re-election have pledged to support the letter and spirit of Oklahoma's open government laws.
 
By signing FOI Oklahoma's Open Government Pledge, the candidates also promised 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."
 
Signing the pledge were Trey Ayers, a Ward 1 incumbent running for mayor; and Gaylord Z. Thomas, a Ward 3 incumbent running for re-election on April 2.
 
The Guthrie City Council consists of seven members. The mayor is elected to two-year terms. The six remaining members represent three wards -- two council members per ward -- and are elected to four-year terms. Four seats on the council are open for election every two years. All elections are non-partisan.
 
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
 

Norman mayor says she routinely seeks 'input' from entire council outside of public meetings

Norman Mayor Cindy Rosenthal said she routinely sends memos to the rest of the City Council seeking "input" on whom she intends to appoint to boards and commissions, The Oklahoman reported today.
 
"The item is then on the agenda and a public vote is taken," Rosenthal told the newspaper.
 
Rosenthal said City Attorney Jeff Bryant approved sending a memo in February to all her fellow council members in which she asked for "input" on new details of a recommended compensation increase for the city manager and asked them to "let me know what direction you would like to move."
 
Rosenthal wrote in the memo that she would ask the city clerk to schedule a vote to set the compensation by ordinance as required by the city charter "once I make sure Council has reached consensus on the City Manager compensation adjustment...."
 
She told The Oklahoman that accusations she is violating the Open Meeting Act are just "politics ... there's nothing to it."
 
But the Open Meeting Act, as well as judicial and attorney general pronouncements on the statute for decades, clearly forbids the majority of a public body from discussing, much less reaching a consensus, on a matter of public business outside of a public meeting.
 
The Open Meeting Act requires that "the vote of each member must be publicly cast and recorded." (Okla. Stat. tit. 25, § 305)
 
The Open Meeting Act states, "No informal gatherings or any electronic or telephonic communications ... among a majority of the members of a public body shall be used to decide any action or to take any vote on any matter." (Okla. Stat. tit. 25, § 306)
 
In 2007, 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."
 
In 1981, the Oklahoma Court of Civil Appeals had emphasized, "Sunshine legislation reaches, not just 'formal' meetings, but the 'entire decision-making process.'" (Matter of Order Declaring Annexation, Etc., 1981 OK CIV APP 57, ¶ 7)
 
A 1981 attorney general opinion said: "The legislative intent is unmistakable. 25 O.S. 306 is an absolute prohibition upon any attempt to circumvent the Open Meeting Act and obtain a consensus upon an item of business by informal meetings outside a public meeting. (1981 OK AG 69, ¶ 17)
 
"Permitting a single member of the governing body to obtain a consensus or vote of that body by privately meeting alone with each member, would be to condone decision-making by public bodies in secret, which is the very evil against which the Open Meeting Act is directed." (Id. ¶ 18)
 
A 1982 attorney general opinion said:

The requirements that members be physically present for meetings to take place and that voting be done only at meetings, provide protection against secret decision-making and further the Legislative intent of facilitating the understanding of government by informed citizens. (1982 OK AG 7, ¶ 7)

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)
 
The principle is “very simple," the state Court of Civil Appeals has said. "When in doubt, the members of any board, agency, authority or commission should follow the open-meeting policy of the State." (Matter of Order Declaring Annexation, Etc., 1981 OK CIV APP 57, ¶18)
 
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, Etc., 1981 OK CIV APP 57, ¶18)
 
"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)
 
Rosenthal and the rest of the Norman City Council are responsible for knowing the requirements and prohibitions of the Open Meeting Act.
 
She and fellow council members Robert Castleberry, Roger Gallagher, Tom Kovach and Linda Lockett have signed FOI Oklahoma's Open Government Pledge. They promised to "comply with not only the letter but also the spirit of Oklahoma's Open Meeting and Open Records laws."
 
Kovach had told The Norman Transcript about the memo, which revealed that the council -- including Kovach -- had apparently violated the Open Meeting Act by reaching a consensus during an executive session to move forward on the pay increase for the city manager.
 
With Rosenthal up for re-election in two weeks, she says Kovach accusing her of violating the Open Meeting Act by sending the memo is just "politics." The Oklahoman article noted that Kovach is a consultant for Tom Sherman, one of Rosenthal's opponents.
 
But the political motivations behind revealing open government violations don't negate the violations themselves. Norman City Council members should not be reaching consensus to take actions in executive session or seeking "input" and "direction" from a majority of the council outside of meetings.
 

 
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.
 

Okemah News Leader says Okfuskee County jailer harassed reporter over records request for mug shot

An Okfuskee County jailer last week asked an Okemah News Leader reporter why she wanted the mug shot of someone arrested and then said it was very nasty of her to dig up "crap" on people, the newspaper reported Saturday.
 
Booking mug shots are public records and releasing them doesn't constitute an invasion of privacy even if the person was acquitted, Oklahoma Attorney General Scott Pruitt said in a formal opinion in December. (AG: Mug shots are public records whose release isn't an invasion of privacy)
 
If Shakara Shepard had identified herself as a reporter, the jailer had no right to ask why she wanted the mug shot. His question would be a violation of the Open Records Act.
 
The person requesting a record can be asked for only enough information to determine if a search fee should be charged because the records request is for a commercial purpose, a 1999 attorney general opinion said. (1999 OK AG 55, ¶ 18-19)
 
Otherwise, "In no event could a public body or public official ever require a requester to provide the reason for a request for access to records," the opinion emphasized.
 
The news media cannot be charged a search fee. (Okla. Stat. tit. 51, § 24A.5(3))
 
And it's never the government official's job to pass judgment on why someone wants a public document.
 

 
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.
 

Apparent Open Meeting Act violations by Norman City Council

The Norman City Council came to a "consensus ... to move move forward with a compensation increase" for the city manager during an executive session last month but didn't vote on the action in open session, The Norman Transcript reported Saturday.
 
Norman Mayor Cindy Rosenthal committed another apparent violation of the Open Meeting Act when she asked in a Feb. 19 memo for each council member's "input" on new details of the recommended increase and to "let me know what direction you would like to move."
 
The Norman Transcript obtained a complete copy of the memo last week after City Attorney Jeff Bryant refused to release a redacted version, claiming it was an extension of the executive session, the newspaper also reported Saturday.
 
But the City Council's executive session discussion could not have continued after the meeting. The council had voted to adjourn its executive session and re-enter the regular session, according to minutes of the Feb. 12 meeting.
 
When the council re-entered the regular session, Rosenthal announced that no action and no votes had been taken in the executive session.
 
Under the Open Meeting Act, "any vote or action on any item of business considered in an executive session shall be taken in public meeting with the vote of each member publicly cast and recorded." (Okla. Stat. tit. 25, § 307(E)(3))
 
But according to Rosenthal's memo, the council had reached a "consensus ... that the City Manager's compensation and benefits package be adjusted to track with AFSCME and NonUnion wage adjustments in FYE12 and FYE13."
 
"I asked the City Attorney to review these recommendations and advise if he thought there were additional issues that should be considered," Rosenthal wrote in the memo.
 
There was: The council cannot adjust base pay for previous fiscal years, so "the proposed pay adjustment" would leave the city manager about $5,400 short of comparable treatment of AFSCME and NonUnion pay raises, Rosenthal wrote.
 
"As a matter of equity, we may wish to add to the one time stipend to close that gap," Rosenthal wrote. "Attached to this memorandum are comparison calculations. I welcome your input.
 
"Please review this information and let me now which direction you would like to move," she wrote.
 
Rosenthal wrote that she would ask the city clerk to schedule a vote to set the compensation by ordinance as required by the city charter "once I make sure Council has reached consensus on the City Manager compensation adjustment...."
 
But for decades, the law has clearly prohibited the majority of a public body from discussing, much less reaching a consensus, on a matter of public business outside of a public meeting.
 
The Open Meeting Act states, "No informal gatherings or any electronic or telephonic communications ... among a majority of the members of a public body shall be used to decide any action or to take any vote on any matter." (Okla. Stat. tit. 25, § 305)
 
A 1981 attorney general opinion said: "The legislative intent is unmistakable. 25 O.S. 306 is an absolute prohibition upon any attempt to circumvent the Open Meeting Act and obtain a consensus upon an item of business by informal meetings outside a public meeting." (1981 OK AG 69, ¶ 17)
 
The statute prohibits a member from obtaining a consensus upon an item of business through a series of private one-on-one meetings, according to that attorney general opinion.
 
"Permitting a single member of the governing body to obtain a consensus or vote of that body by privately meeting alone with each member, would be to condone decision-making by public bodies in secret, which is the very evil against which the Open Meeting Act is directed." (Id. ¶ 18)
 
Rosenthal's memo is the same as meeting one-on-one to obtain a consensus.
 
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)
 
The principle is “very simple," the state Court of Civil Appeals said. "When in doubt, the members of any board, agency, authority or commission should follow the open-meeting policy of the State." (Matter of Order Declaring Annexation, Etc., 1981 OK CIV APP 57, ¶18)
 
Also troubling is that Rosenthal and fellow council members Robert Castleberry, Roger Gallagher, Tom Kovach and Linda Lockett have signed FOI Oklahoma's Open Government Pledge.
 
They promised to "comply with not only the letter but also the spirit of Oklahoma’s Open Meeting and Open Records laws."
 
They broke that promise by coming to a consensus in an executive session and not voting publicly. They did so again if they were among a majority of the council that later discussed and came to a consensus on the pay proposal outside a public meeting. Kovach said he alerted the newspaper to Rosenthal's memo and advised his colleagues against responding to it because doing so seemed to be a violation of the Open Meeting Act.
 
These apparent violations of the Open Meeting Act should be investigated and prosecuted by Cleveland County District Attorney Greg Mashburn.
 
Because the remedy for Oklahomans "who have no concern but that their government is working in the dark ... is a criminal prosecution for any willful violations."
 

 
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.

Prosecuting state Pardon and Parole Board is right call

Oklahoma County District Attorney David Prater's prosecution of the state Pardon and Parole Board for Open Meeting Act violations is drawing unwarranted criticism from the governor and The Oklahoman's editorial writers.
 
All five board members -- Currie Ballard, Richard L. Dugger, Marc Dreyer, Lynnell Harkins and David Moore -- pleaded not guilty on Thursday to multiple counts of violating the statute.
 
Prater alleges the board broke the law by discussing and voting on early parole consideration for inmates without listing such actions as agenda items. Instead, he says, the votes took place under the vague agenda item of "Docket Modifications," which included no other information.
 
Board members have said those votes only determined whether an inmate would be placed on the docket of a future meeting, at which time the inmate's name would appear on the board's website.
 
After charges were filed Wednesday, Gov. Mary Fallin said it "will have a chilling effect on individuals interested in public service."
 
"It is difficult to imagine men and women who are leaders in their communities wishing to serve in these positions — the vast majority of which draw no salary — if they are constantly in fear of being charged with a crime while making a good-faith effort to follow the law and the recommendations of their paid legal advisers," said Fallin.
 
(The Oklahoman echoed that concern in an editorial Friday.)
 
Fallin appointed Ballard, Dreyer and Moore to the board in 2011.
 
As a gubernatorial candidate in 2010, Fallin said she would expect her appointees to public bodies to abide by the state's Open Meeting Act. But her comments this week are an insult to the thousands of Oklahomans who serve on state and local boards and commissions without violating the statute.
 
The Open Meeting Act, as our Court of Civil Appeals noted in 1981, "is not obscure or incomprehensible." (Matter of Order Declaring Annexation, Etc., 1981 OK CIV APP 57, ¶ 18)
 
"On the contrary, anyone with ten minutes to spare can read the whole thing and understand virtually every word,” the court said. "Lack of familiarity is no excuse."
 
The Open Meeting Act certainly shouldn't have been incomprehensible to the five parole board members. Three -- Ballard, Dreyer and Harkins -- previously served on the board. And four have experience in enforcing the law: Dreyer is a former Drug Enforcement Administration agent; Dugger was a longtime district attorney in western Oklahoma; Harkins is an attorney and former special judge; and Moore is a former U.S. Secret Service agent.
 
All five also had no excuse because the state Attorney General's Office told them in April 2011 that agendas must give the public actual notice of the actions that might be taken in a meeting.
 
In an affidavit filed with the charges, Prater's chief investigator, Gary Eastridge, described what he heard in the audio recording of the hourlong open government training session that Gay Tudor, then an assistant attorney general, conducted with the board.
 
While Tudor was suggesting more details be added to agenda items, Eastridge said, "a female voice can be heard referencing 'docket modifications.""
 
Eastridge said Tudor made clear that board members could not take action if the possibility of that action was not listed on the agenda.
 
"The female (believed to be Mrs. Harkins) then specifically says 'that would be like docket modification item where we are going to bring someone forward.'"
 
Eastridge said Tudor emphasized during the session that the agenda is "a really big thing" and that agendas should include enough information for people to have an idea of what the board intended to do.
 
None of what Tudor told the board was new.
 
The Open Meeting Act says each agenda "shall 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 language used should be simple, direct and comprehensible to a person of ordinary education and intelligence," the state Court of Civil Appeals has said. (Haworth Bd. of Ed. of Independent School Dist. No. I-6, McCurtain County v. Havens, 1981 OK CIV APP 56, ¶ 9)
 
The purpose of the Open Meeting Act "to encourage and facilitate an informed citizenry's understanding of the governmental processes and governmental problems ... is defeated if the required notice is deceptively worded or materially obscures the stated purpose of the meeting," the court said. (Id. at ¶ 9)
 
Because the Open Meeting Act was "enacted for the public's benefit," the Oklahoma Supreme Court said in 1981, the statute "is to be construed liberally in favor of the public." (Int’l Ass’n of Firefighters v. Thorpe, 1981 OK 95, ¶ 7)
 
The principle is "very simple," the state Court of Civil Appeals said that year. "When in doubt, the members of any board, agency, authority or commission should follow the open-meeting policy of the State." (Matter of Order Declaring Annexation, Etc., 1981 OK CIV APP 57, ¶ 18)
 
Violating the Open Meeting Act is a misdemeanor. If convicted, the Pardon and Parole Board members could be punished by up to one year in the county jail and a $500 fine.
 
Those "light penalties for violating the [state's open records and meeting] laws only exacerbate the problem. Unless that changes, behavior isn't likely to either," The Oklahoman's editorial staff lamented in late August.
 
In the 2011 training session, Eastridge said, a board member asked Tudor if "intent" had to be proved for a criminal violation of the Open Meeting Act. She responded that willful violations don't require intent, only "'whether you knew or should have known and see now you know.'"
 
So the parole board members don't seem to fit Fallin's description of appointees making a good-faith effort to follow the Open Meeting Act and the recommendations of legal counsel.
 
Fallin also implied that political appointees serving on statewide boards and commissions fall into the same category as volunteers for charitable organizations. But the members of these government bodies make important decisions regarding state policies and spending.
 
The Pardon and Parole Board, for example, is "a vital part of the criminal justice system" whose mission "is to determine the best possible decision, through a case-by-case investigative process and to protect the public while recommending the supervised released of adult felons."
 
As Prater emphasized: "Public Safety is a core function of our government. As alleged, the Board was making crucial public safety decisions without giving the citizens of Oklahoma an opportunity to scrutinize its activities."
 
None of these statewide boards and commissions, however, is directly answerable to voters for their actions.
 
And if a Washington County district court judge is correct, civil lawsuits over Open Meeting violations may be filed only if the plaintiff was directly harmed.
 
Instead, the remedy for Oklahomans "who have no concern but that their government is working in the dark ... is a criminal prosecution for any willful violations," Judge Russell Vaclaw said in 2011.
 
Yet, Oklahomans have heard from district attorneys a long list of unfounded excuses for not prosecuting Open Meeting Act violations. When a district attorney chose not to file charges in 2011 because city council members hadn't intended to break the law, The Oklahoman complained:

Wouldn't we all love to get away with that excuse if we're pulled over for a traffic violation? Gee officer, I didn't mean to do it.

And in early August prior to Prater publicly criticizing the parole board's agendas, The Oklahoman complained about the lack of teeth in the state's open government laws, saying, "Prosecutors often are in no hurry to pursue what is a misdemeanor offense, nor do they like going after other public servants — the people who violate those laws."
 
But in an editorial Monday questioning Prater's decision to file charges against the parole board, The Oklahoman editorial asked, "What does it profit the state for members of this board to take a perp walk?"
 
The Oklahoman had answered its own question in a 2011 editorial titled "Ignorance of open meeting laws no excuse for public officials."

The laws regarding public meetings are black and white, and need to be adhered to. And those charged with enforcing the law need to do just that.
 
Why? Because laws regarding open meetings and open records allow the public to see how their tax money is being spent, how their elected officials are conducting their business. This is vitally important in our society.
 
When public officials try to avoid that light, they ought to be punished.

That remains true today.
 
Prosecuting the parole board is the right call.
 

 
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.
 

State Senate approves bill limiting authority of judges to seal court records

The state Senate approved a bill Tuesday that bans Oklahoma judges from sealing court records simply because both parties agreed to the closure.
 
"The mere fact that the parties agree shall not be grounds to seal any records or files," states Senate Bill 1041.
 
The bill by Sen. Anthony Sykes, R-Moore, and Rep. Mark McCullough, R-Sapulpa, passed the Senate 43-0. Its first reading in the House was today.
 
Under their bill:

A court shall not seal any records or files unless specifically authorized by the Oklahoma Constitution or by statute. Prior to issuing an order sealing any records or files, the court shall make written findings of fact and conclusions of law that shall be incorporated into the order along with the specific provisions of the Oklahoma Constitution or statute that authorize such an order.
 
Any prior orders sealing records or files inconsistent with the requirements of this section shall be in compliance within one (1) year of the effective date of this act or shall be null and void.

The bill's effective date would be Nov. 1.
 
Any resident of the county in which a case record is sealed would have standing to challenge the closure and be entitled to attorney fees and court costs.
 
Judges could be impeached for sealing records without issuing a written finding of fact and conclusion of law that includes the state Constitution provision or statute authorizing the closure.
 
The sealing of court records in Oklahoma has been an issue for several years.
 
In May, for example, District Judge Ray Dean Linder sealed records of a felony perjury charge filed against an Enid attorney. Linder's reason: "Because I am the district judge. And it will remain sealed until I say it shouldn’t be sealed."
 
The Enid News & Eagle challenged that closure, and another judge overturned Linder. For its efforts, the newspaper received FOI Oklahoma's Marian Opala First Amendment Award on Saturday.
 
Last month, the Tulsa World reported that records in more than a dozen criminal cases had been ordered sealed in the past year in Tulsa County District Court.
 
Among those was a Tulsa judge's order sealing all records involving a material witness to a quadruple slaying. The witness was secretly jailed for more than a month. Records related to her case weren't unsealed until the Tulsa World began asking questions about the woman's incarceration.
 
In 2011, a Tulsa oilman's divorce case in Osage County was opened after the editor of The Bigheart Times questioned why the entire case, including the names of the couple, lawyers and judge, had been sealed. Even the order sealing the case had been closed to the public.
 
In 2010, an Oklahoma County district judge sealed the transcript of an open court hearing in which she had a heated argument with prosecutors. The transcript was unsealed after FOX 25 questioned why it has been closed to the public.
 
In 2008, the Tulsa World reported that the state's district judges had sealed thousands of court cases and documents — mostly because attorneys had simply asked them to — since 2003.
 

 
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's Black Hole Award goes to Gov. Fallin

Gov. Mary Fallin's unprecedented use of "executive privilege" to hide records from the public earned her FOI Oklahoma's annual Black Hole Award, the organization announced Saturday.
 
Two newspapers and a state lawmaker received FOI Oklahoma's top open government and First Amendment awards Saturday during the organization's Sunshine Week Conference at the University of Oklahoma.
 
FOI Oklahoma also announced winners of its third open government-themed essay contest for college students. First place went to Joey Stipek of the University of Oklahoma. The second- and third-place winners were Oklahoma State University students Colton Scott and Andrei Dambuleff. The students won cash prizes of $300, $200 and $100.
 
The Marian Opala First Amendment Award was presented to the Enid News & Eagle, while the Ben Blackstock Award went to the Bartlesville Examiner-Enterprise.
 
State Rep. Jason Nelson, R-Oklahoma City, was presented the Sunshine Award for opening the doors of secrecy at the Department of Human Services.
 
In contrast, Fallin and her general counsel, Steve Mullins, garnered the Black Hole Award, which recognizes someone who thwarts the free flow of information in Oklahoma.
 
Fallin and Mullins have claimed that her communications with her 14 Cabinet members are protected by executive and deliberative process privileges under the state Constitution. Their claims are unprecedented for an Oklahoma governor.
 
Our state courts have not recognized these privileges. Likewise, the state Open Records Act doesn’t screen the governor’s records from public scrutiny.
 
Some of the records could shed light on why Fallin refused to create a state health insurance exchange. Others are related to implementing reforms to the corrections system.
 
The Enid News & Eagle was recognized for its successful lawsuit supporting the public's First Amendment right of access to court records sealed by Judge Ray Linder. The records involved the perjury case of Enid attorney Eric Edwards.
 
For nearly four months, the newspaper, its attorney Michael Minnis, and reporters James Neal and Cass Rains fought with Edwards' attorney, Stephen Jones, over the manner in which the records were sealed and removed from public view.
 
In ordering the records opened, Judge Richard Van Dyck cited the News & Eagle’s First Amendment right to publish the news as the newspaper found it.
 
Van Dyck said the public’s interest in knowing the truth was greater than the need to keep the records sealed, which would only "heighten suspicions."
 
"The public needs to know what its elected officials are up to," Van Dyck said. "The public has a right to know."
 
The Opala Award is named for the late Marian P. Opala, the former Polish freedom fighter who served 32 years on the Oklahoma Supreme Court.
 
The Bartlesville Examiner-Enterprise was presented the Blackstock Award, which recognizes a non-governmental person or organization that has fought for the public's right to know.
 
Video footage of an incident in which two local police officers were accused of assaulting a hospital patient was released because of a lawsuit by the newspaper.
 
Two police officers were charged with assault and battery from the September 2011 incident involving a combative patient at a local hospital. One officer was convicted and fined $1,000. The other was acquitted.
 
A third officer's employment was terminated, and a fourth officer was placed on administrative leave but later reinstated.
 
Nelson was presented the Sunshine Award, which goes to a public official or governmental body, for spearheading efforts to reform the Department of Human Services' tracking and reporting of child deaths and near-deaths.
 
Over time, DHS had developed a closed system and oversight was difficult. Nelson pounded away at unacceptable reports and transparency issues concerning DHS. He and other legislators had to stand firm when federal Health and Human Services officials said Oklahoma could lose millions in federal funding if it opened certain records.
 
Nelson kept asking why other states could disclose the information and still receive federal funding. Eventually, the HHS agreed Oklahoma could release the data without losing funding.
 
This was the sixth year that FOI has presented the Sunshine, Blackstock and Black Hole awards.
 
FOI Oklahoma is a statewide organization that for 23 years has promoted openness in government and First Amendment education. The organization counts among its members journalists, librarians, educators, government officials and private citizens. It also sponsors an annual First Amendment Congress for students.
 

 
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications
 
Lindel Hutson
Past President, FOI Oklahoma
 
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.