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.

School board members must take open government training

School board members will have to undergo at least one hour of training in the state's Open Records and Meeting laws, under a bill signed Wednesday by Gov. Mary Fallin.
 
Senate Bill 91, which takes effect July 1, had passed the House last week by a 93-2 vote.
 
Opposing the bill were two Democrats: Minority Caucus Chair Jerry McPeak of Warner, who is a former school board member, and Rebecca Hamilton of Oklahoma City.
 
The bill, by Sen. Eddie Fields, R-Wynona, amends current training requirements for school board members that must be completed within 15 months of being elected, re-elected or appointed.
 
Otherwise, the school board member must vacate the seat and cannot be reappointed or re-elected for three to five years, depending upon how many members serve on the school board. (Okla. Stat. tit. 70, 5-110(C))
 
That's an important difference from the open government training requirement for newly elected municipal officials. That statute requires the training to be completed in their first year of office or they "shall cease to hold the office." However, it doesn't explicitly prohibit them from being reappointed once the training is completed. (OKLA. STAT. tit. 11, § 8-114(E))
 
In December, Kiowa trustees reinstated a former trustee who had been forced to resign because he hadn't taken the training.
 

 
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.

The Lost Ogle, ACLU challenge Gov. Fallin's claim of privileges to withhold records

The Lost Ogle and the ACLU of Oklahoma followed through Tuesday on their threat to sue Gov. Mary Fallin over her refusal to provide records.
 
The lawsuit, filed in Oklahoma County District Court, challenges Fallin's claim that executive and deliberative process privileges permit her to keep secret 100 pages of advice from "senior executive branch officials" on the creation of a state health insurance exchange.
 
(Vandelay Entertainment LLC v. Fallin, Mary, No. CV-2013-763 (Okla. Co. April 9, 2013))
 
Fallin's general counsel, Steve Mullins, has asserted that her communications with her 14 Cabinet members are protected by these privileges under the state Constitution provision creating three branches of government. (OKLA. CONST. art. 4, § 1)
 
Mullins also made that assertion in November when refusing to provide the Tulsa World with records related to implementing reforms to the corrections system.
 
(Also read Mullins' letter to The Oklahoman in November in which he explained various privileges that could be claimed by Fallin.)
 
ALCU Legal Director Brady R. Henderson emphasized Tuesday that executive and deliberative process privileges are not explicitly found in the Oklahoma Constitution and haven't been recognized by our state courts.
 
"Mary Fallin is the first Governor of Oklahoma to challenge the people's right to be fully informed about their government," Henderson said. "We filed this lawsuit to make sure she also will be the last."
 
Fallin's unprecedented use of "executive privilege" in Oklahoma to hide records from the public earned her FOI Oklahoma's annual Black Hole Award in early March.
 
If recognized by Oklahoma courts, these privileges would turn the state Open Records Act upside down. Under the statute, the government official denying access must cite an applicable state or federal statutory exemption. But under these privileges, the burden would fall on Oklahomans to prove to a court that they should be allowed to see the government records.
 
These privileges also would allow Fallin to claim secrecy for records that would be open to the public if in the hands of local officials because the Legislature has not deemed the information confidential.
 
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.
 
If Oklahomans are to meaningfully participate in their government and understand the governmental decisions affecting their lives, they must be privy to the deliberative discussions revealing why officials chose one alternative and rejected others.
 
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.
 
The purpose of this act is to ensure and facilitate the public's right of access to and review of government records so they may efficiently and intelligently exercise their inherent political power. (OKLA. STAT. tit. 51, § 24A.2)

As a gubernatorial candidate seeking public support, Fallin pledged to support that policy "at every opportunity."
 
But if Fallin wins this lawsuit, her legacy as governor will be just the opposite of what she promised Oklahomans when she was asking for their votes. She will be responsible for a new layer of secrecy behind which governors may hide the public's business.
 

 
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.
 

8 pledge signers elected Tuesday

Eight of the 13 municipal candidates who had signed FOI Oklahoma's Open Government Pledge were elected Tuesday.
 
They have promised that they and their city governments "will comply with not only the letter but also the spirit of Oklahoma's Open Meeting and Open Records laws."
 
Four were challengers: three in Norman and one in Stillwater.
 
Three pledge signers were involved in close elections. In Guthrie, Ward 3 incumbent Gaylord Z. Thomas won by nine votes.
 
In Norman, challenger Stephen Tyler Holman was elected over another pledge signer, incumbent Linda Lockett, for the Ward 7 seat by 27 votes.
 
Another pledge signer in Guthrie, Trey Ayers, lost his bid for mayor but remains on the council as the Ward 1 representative.
 
Here is the list of winners by city:

• Guthrie City Council
• • John Wood, Ward 1 (re-elected)
  • Gaylord Z. Thomas, Ward 3 (re-elected)
  
  
• Norman
• Cindy Rosenthal, mayor (re-elected)
• Greg Heiple, Ward 1 (challenger)
• Robert Castleberry, Ward 3 (re-elected)
• Lynne Miller, Ward 5 (challeger)
• Stephen Tyler Holman, Ward 7 (challenger)


• Stillwater
• Gina Noble, Seat 2 (challenger)

Each 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."
 
What if they don't live up to these promises now that they've been elected?
 
Then voters should show them the door at the next election and elect people with the integrity to conduct our government in the open. Ultimately, it's up to the voters to hold our elected officials accountable.
 

 
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.