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.