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.

Court of Civil Appeals to decide if Oklahomans unharmed by violation may sue to enforce the Open Meeting Act

The state Court of Civil Appeals has refused to dismiss the appeal of an Open Meeting Act lawsuit against the Bartlesville Redevelopment Authority.
 
Joel Rabin and Sharon Hurst sued the BRTA in 2010, saying it purposefully misled the public about the purpose of an executive session earlier that year.
 
Associate District Judge Russell Vaclaw dismissed the lawsuit last November, ruling that Oklahomans may not sue to enforce the Open Meeting Act without having been specifically harmed by the public body's alleged violation.
 
Vaclaw said Rabin and Hurst 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."
 
The Open Meeting Act does not explicitly permit winning plaintiffs to recover attorney fees and court costs as the Open Records Act does.
 
Therefore, Vaclaw said, the Open Meeting Act "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."
 
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," Vaclaw said. "If there was wrongdoing, charges could be filed or the matter may be presented to a grand jury.
 
"If the legislature intended to allow for a private remedy, then it is their responsibility to change the law, not this Court," he said. "To date, the legislature has not changed the remedies available under the OMA."
 
In an order dated Nov. 9, the Court of Civil Appeals gave Rabin and Hurst until Dec. 14 to file a brief addressing whether they have standing to bring a private right of action under the Open Meeting Act.
 
The BRTA will have until Jan. 11 to file its answer. Rabin and Hurst may file a reply by Jan. 31.
 

 
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.
 

Plaintiffs appeal Washington County judge's decision that Oklahomans aren't entitled to sue to enforce Open Meeting Act unless specifically harmed by alleged violation

Oklahoma's Supreme Court is being asked to decide if residents may sue to enforce the state Open Meeting Act without having been specifically harmed by the public body's alleged violation.

Joel Rabin and Sharon Hurst are appealing a Washington County judge's dismissal of their lawsuit alleging an Open Meeting Act violation by the Bartlesville Redevelopment Authority.

In November, Associate District Judge Russell Vaclaw said Rabin and Hurst 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."

Vaclaw reiterated that ruling in another decision on Jan. 3.

Vaclaw ruled that 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," he said.

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," Vaclaw said. "If there was wrongdoing, charges could be filed or the matter may be presented to a grand jury."

Rabin and Hurst alleged that the BRTA purposefully misled the public about the purpose of its Aug. 11, 2010, executive session.

The agenda for the meeting said the closed-door session would be to "Discuss Pending and/or Impending Investigations, Claims or Actions Affecting the BRTA." However, the agenda did not identify the specific item of business to be discussed in the executive session.

And in an e-mail sent a day earlier, BRTA Downtown Development Director Patrick Treadway told the seven members of the authority:

You will note that the first item on the agenda is an Executive Session which seems to indicate an investigation. There is not an investigation. This is on the agenda to allow Dan to give you information which he believes you need to have for future projects. Dan purposefully provided the language for this agenda item.

Dan is BRTA attorney Dan McMahan of Oklahoma City.

The lawsuit also uncovered that despite an Open Meeting Act requirement, the BRTA did not keep minutes of its executive sessions.

Vaclaw did not rule on whether the BRTA violated the Open Meeting Act. Instead, he decided that Hurst and Rabin had no right to sue.

Vaclaw relied upon the state Supreme Court's three-part test in Holbert v. Echeverria, 1987 OK 99, ¶ 8, 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.

Applying the test, the court in Holbert said private individuals had no right to sue for a violation of the state's Consumer Protection Act. The home buyers were not part of a class of persons for whose "especial benefit" the statute was enacted, the court said.

It explained that adopting "a broad construction for establishing a class would render the first factor ... virtually meaningless. When a statute is created for the benefit of the public at large, no special class is created in its wake simply because a remedy for injured persons is fashioned." (Id. ¶ 9) The court reasoned:

It is difficult to think of a term broader or more general than "consumer." Every individual, regardless of one's occupation, does in some respect occupy on a daily basis the status of consumer. Because everybody stands included, the term "consumer" does not describe any special class, but rather the public at large. Inasmuch as the Act is for the benefit of the general public, no special class is established for whose especial benefit it was created. (Id. ¶ 10)

Vaclaw noted that after the Holbert ruling, state legislators amended the Oklahoma Consumer Protection Act "to expressly provide for a private right of action."

Attorneys for Rabin and Hurst had pointed to a string of Oklahoma appellate court decisions involving plaintiffs suing public bodies over alleged Open Meeting Act violations.

But Vaclaw said that in all those cases, the plaintiffs "had some specific statutory, contractual or proprietary interest which allowed them to seek specific relief in those particular situations."

He agreed that the Open Meeting Act "exists for the benefit of the general public."

"But that does not grant a right to every individual citizen to sue the government body in civil court every time they believe the government violated the OMA," he said.

"If the legislature intended to allow for a private remedy, then it is their responsibility to change the law, not this Court," he said.

Yes, the Legislature could resolve the issue this session by explicitly stating that Oklahomans have a private right to sue to enforce the Open Meeting Act.

I receive a steady stream of complaints about Open Meeting Act violations -- a number of which have been publicized on this blog. Unfortunately, police and district attorneys have shown little interest in pursuing complaints of government officials breaking this law.

But our legislators have the power to remedy this problem. Please clearly give your constituents another tool to enforce a law intended "to encourage and facilitate an informed citizenry’s understanding of the governmental processes and governmental problems."


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.

Washington County Judge dismisses BRTA lawsuit, says Oklahomans aren't entitled to sue to enforce Open Meeting Act unless specifically harmed by alleged violation

A Washington County judge sided with the Bartlesville Redevelopment Authority on Friday, dismissing a lawsuit alleging an Open Meeting Act violation by the public body.

In a 10-page ruling, Associate District Judge Russell Vaclaw said the plaintiffs, Joel Rabin and Sharon Hurst, 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."

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," Vaclaw said. 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."

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," Vaclaw said. "If there was wrongdoing, charges could be filed or the matter may be presented to a grand jury.

"If the legislature intended to allow for a private remedy, then it is their responsibility to change the law, not this Court," he said. "To date, the legislature has not changed the remedies available under the OMA."

Rabin and Sharon alleged that the BRTA purposefully misled the public about the purpose of its Aug. 11, 2010, executive session.

The agenda for the meeting said the closed-door session would be to "Discuss Pending and/or Impending Investigations, Claims or Actions Affecting the BRTA." However, the agenda did not identify the specific item of business to be discussed in the executive session.

Vaclaw approved of the BRTA having used "impending" on the agenda. He noted that a 2005 attorney general opinion on the meaning of "pending" equated it with "impending." (2005 OK AG 29, ¶ 9)

In deciding that Hurst and Rabin had no right to sue, Vaclaw relied upon the state Supreme Court's three-part test in Holbert v. Echeverria, 1987 OK 99, ¶ 8, 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.

Applying the test, the court in Holbert said private individuals had no right to sue for a violation of the state's Consumer Protection Act. The home buyers were not part of a class of persons for whose "especial benefit" the statute was enacted, the court said.

It explained that adopting "a broad construction for establishing a class would render the first factor ... virtually meaningless. When a statute is created for the benefit of the public at large, no special class is created in its wake simply because a remedy for injured persons is fashioned." (Id. ¶ 9) The court reasoned:

It is difficult to think of a term broader or more general than "consumer." Every individual, regardless of one's occupation, does in some respect occupy on a daily basis the status of consumer. Because everybody stands included, the term "consumer" does not describe any special class, but rather the public at large. Inasmuch as the Act is for the benefit of the general public, no special class is established for whose especial benefit it was created. (Id. ¶ 10)

Vaclaw noted that after the Holbert ruling, state legislators amended the Oklahoma Consumer Protection Act "to expressly provide for a private right of action."

Attorneys for Rabin and Hurst had pointed to a string of Oklahoma appellate court decisions involving plaintiffs suing public bodies over alleged Open Meeting Act violations.

But Vaclaw said that in all those cases, the plaintiffs "had some specific statutory, contractual or proprietary interest which allowed them to seek specific relief in those particular situations."

He agreed that the Open Meeting Act "exists for the benefit of the general public."

"But that does not grant a right to every individual citizen to sue the government body in civil court every time they believe the government violated the OMA," he said.


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.

Washington County judge hears arguments on motion to dismiss Open Meeting Act lawsuit against Bartlesville Redevelopment Trust Authority

Oklahomans aren't entitled to sue over Open Meeting Act violations, the Bartlesville Redevelopment Trust Authority attorney argued before a judge Thursday.

Dan McMahan also contended that public bodies aren't required to explain on an agenda what specific investigation or lawsuit will be discussed behind closed doors.

An attorney for the plaintiffs argued that the BRTA had waived its right to file a motion to dismiss when it filed an entry of appearance.

"We should not even be here," said J. Schaad Titus.

Associate District Judge Russell Vaclaw said he would study the information presented by both sides and render a decision within 30 days.

(Read coverage of the hearing by The Bartlesville Examiner-Enterprise.)

Plaintiffs Joel Rabin and Sharon Hurst allege that the BRTA purposefully misled the public about the purpose of its Aug. 11, 2010, executive session, the real subject of which was not permitted in an executive session.

The agenda for the meeting said the closed-door session would be to "Discuss Pending and/or Impending Investigations, Claims or Actions Affecting the BRTA." However, the agenda did not identify the specific item of business to be discussed in the executive session.

In an e-mail sent a day earlier, BRTA Downtown Development Director Patrick Treadway told the seven members of the authority:

You will note that the first item on the agenda is an Executive Session which seems to indicate an investigation. There is not an investigation. This is on the agenda to allow Dan to give you information which he believes you need to have for future projects. Dan purposefully provided the language for this agenda item.

Dan is BRTA attorney Dan McMahan of Oklahoma City.

The lawsuit also has uncovered that despite an Open Meeting Act requirement, the BRTA did not keep minutes of its executive sessions.

In May, the BRTA filed a motion arguing that Rabin and Hurst have no right to sue to enforce the Open Meeting Act.

The BRTA contends that because the Open Meeting Act was enacted for the public's benefit, it does not create a special class of protected people who may sue for violations of the statute. It also argues that private individuals may not sue under the Open Meeting Act because the statute is silent regarding such a right.

In a response, Rabin and Hurst's attorney said the Oklahoma Supreme Court has already decided that no personal harm is required for a private person to sue a public body under the Open Meeting Act.

In a 2000 ruling, the Oklahoma Supreme Court said the state Senate could sue a state board over an alleged Open Meeting Act violation.

The state board had argued that the Senate "does not have the requisite 'personal stake' in the outcome [of the meeting at issue] and is therefore not a person 'aggrieved' by the Board's decision."

The Senate responded that "a violation of the Open Meeting Act ... is a public injury, so that proof of a direct, and immediate personal consequence to the Senate of the unlawful action, is not a necessary requisite to bringing the action."

Attorneys for Hurst and Rabin also point to 11 other appellate cases in which private citizens or an entity sought relief in civil court because of an alleged violation of the Open Meeting Act.

"Since the OMA's 1977 enactment, the appellate courts have tacitly acknowledged the right to bring a civil cause of action for OMA issue," wrote Jessica E. Rainey of Titus Hillis Reynolds Love Dickman and McCalmon in Tulsa.

At Thursday's hearing, McMahan also argued that agendas do not have to specify the "subject" of an executive session between a public body and its attorney to discuss "a pending investigation, claim, or action."

But Attorney General Scott Pruitt recently said in an informal opinion that a state public body's agenda was too vague under the Open Meeting Act when it listed an executive session "for the purpose of considering a settlement of a lawsuit(s)."

The meeting agenda should have listed the name of the parties in the lawsuit and a brief description of the litigation, Pruitt told the Commissioners of the Land Office.

But McMahan told the judge that revealing the subject of an "impending" lawsuit or investigation would give an unfair legal advantage to the other side.

McMahan's logic seems applicable only if the other side has no idea that it is the subject of a possible lawsuit or investigation requiring a discussion by a public body. How realistic is that?

McMahan's interpretation contradicts the language of the Open Meeting Act, which states:

If a public body proposes to conduct an executive session, the agenda shall:

• Contain sufficient information for the public to ascertain that an executive session will be proposed;
• Identify the items of business and purposes of the executive session; and
• State specifically the provision of Section 307 of this title authorizing the executive session."(OKLA. STAT. tit. 25, § 311(B)(2)(a-c))

McMahan's version of the statute also would allow public bodies to discuss whatever they wanted behind closed doors because no objective evaluation would be possible to determine if the executive session had exceeded the statutory authorization.

Given the BRTA executive session at issue, perhaps that's what McMahan wants.

In January, the FOI Oklahoma Inc. board of directors approved a $1,000 grant to Rabin and Hurst, who are FOI Oklahoma members, to help support their costs of the Open Meeting Act lawsuit against the BRTA.

In March, the Bartlesville City Council allocated $30,000 to help pay the BRTA's legal expenses.


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.

Plaintiffs in BRTA case say state Supreme Court has ruled that no personal injury required for private plaintiff to sue under Open Meeting Act

The Oklahoma Supreme Court has already decided that no personal harm is required for a private person to sue a public body under the Open Meeting Act, say plaintiffs in such a lawsuit against the Bartlesville Redevelopment Trust Authority.

Joel Rabin and Sharon Hurst allege that the BRTA purposefully misled the public about the purpose of its Aug. 11 executive session, the real subject of which was not permitted in an executive session.

The agenda for the meeting said the closed-door session would be to "Discuss Pending and/or Impending Investigations, Claims or Actions Affecting the BRTA." However, the agenda did not identify the specific item of business to be discussed in the executive session.

In an e-mail sent a day earlier, BRTA Downtown Development Director Patrick Treadway told the seven members of the authority:

You will note that the first item on the agenda is an Executive Session which seems to indicate an investigation. There is not an investigation. This is on the agenda to allow Dan to give you information which he believes you need to have for future projects. Dan purposefully provided the language for this agenda item.

Dan is BRTA attorney Dan McMahan of Oklahoma City.

The lawsuit also has uncovered that despite an Open Meeting Act requirement, the BRTA did not keep minutes of its executive sessions. (See Deposition of Patrick Treadway at 21-25 (Dec. 8, 2010)).

On May 4, the BRTA filed a motion arguing that Rabin and Hurst have no right to sue to enforce the Open Meeting Act.

The BRTA pointed to the state Supreme Court's three-part test in Holbert v. Echeverria, 1987 OK 99, ¶ 8, 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.

Applying the test, the court in Holbert said private individuals had no right to sue for a violation of the state's Consumer Protection Act. The home buyers were not part of a class of persons for whose "especial benefit" the statute was enacted, the court said.

It explained that adopting "a broad construction for establishing a class would render the first factor ... virtually meaningless. When a statute is created for the benefit of the public at large, no special class is created in its wake simply because a remedy for injured persons is fashioned." (Id. ¶ 9) The court reasoned:

It is difficult to think of a term broader or more general than "consumer." Every individual, regardless of one's occupation, does in some respect occupy on a daily basis the status of consumer. Because everybody stands included, the term "consumer" does not describe any special class, but rather the public at large. Inasmuch as the Act is for the benefit of the general public, no special class is established for whose especial benefit it was created. (Id. ¶ 10)

The BRTA, relying upon that interpretation, contends that because the Open Meeting Act was enacted for the public's benefit, it does not create a special class of protected people who may sue for violations of the statute.

The BRTA also argues that based on the second prong of the test, private individuals may not sue under the Open Meeting Act because the statute is silent regarding such a right.

In a response filed May 31, Rabin and Hurst's attorney pointed to a 2000 ruling in which the Oklahoma Supreme Court said the state Senate could sue a state board over an alleged Open Meeting Act violation. (Okla. State Senate v. State Bd. for Prop. & Casualty Rates, 2000 OK 69)

The state board had argued that the Senate "does not have the requisite 'personal stake' in the outcome [of the meeting at issue] and is therefore not a person 'aggrieved' by the Board's decision." (Id. ¶ 9)

The Senate responded that "a violation of the Open Meeting Act ... is a public injury, so that proof of a direct, and immediate personal consequence to the Senate of the unlawful action, is not a necessary requisite to bringing the action." (Id.)

The Senate also contended that it had standing based on another state statute. The court said that issue was controlled by a broad application of that statute.

The Court then ruled that the Senate had standing, but the Justices did so without explaining why. Was their ruling based on the Senate's contention that an Open Meeting Act violation "is a public injury," or on the Senate's other argument, or equally on both?

Regardless, the attorney for Hurst and Rabin also pointed to 11 other appellate cases in which private citizens or an entity sought relief in civil court because of an alleged violation of the Open Meeting Act.

"Since the OMA's 1977 enactment, the appellate courts have tacitly acknowledged the right to bring a civil cause of action for OMA issue," wrote Jessica E. Rainey of Titus Hillis Reynolds Love Dickman and McCalmon in Tulsa.

Deciding that "the only remedy for a violation of the OMA is a criminal sanction ... would effectively nullify this body of precedential and persuasive Oklahoma court decisions determining OMA issues," she said.


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.

BRTA refuses to settle open government lawsuits

The Bartlesville Redevelopment Trust Authority has refused two offers to settle open government lawsuits filed against it, the local newspaper reported Wednesday.

The BRTA filed an amended motion Wednesday to dismiss the Open Meeting Act lawsuit, according to court records.

The Bartlesville Examiner-Enterprise reported that under the settlement offer, the BRTA would issue a statement fully describing what occurred during an Aug. 11 executive session and would hold a meeting during which the public could ask what was discussed during that closed session.

The lawsuit, filed by Joel Rabin and Sharon Hurst, alleges that the BRTA purposefully misled the public about the purpose of its Aug. 11 executive session, the real subject of which was not permitted in an executive session.

The agenda for the meeting said the closed-door session would be to "Discuss Pending and/or Impending Investigations, Claims or Actions Affecting the BRTA." However, the agenda did not identify the specific item of business to be discussed in the executive session.

In an e-mail sent a day earlier, BRTA Downtown Development Director Patrick Treadway told the seven members of the authority:

You will note that the first item on the agenda is an Executive Session which seems to indicate an investigation. There is not an investigation. This is on the agenda to allow Dan to give you information which he believes you need to have for future projects. Dan purposefully provided the language for this agenda item.

Dan is BRTA attorney Dan McMahan of Oklahoma City.

The lawsuit also has uncovered that despite an Open Meeting Act requirement, the BRTA does not keep minutes of its executive sessions. (See Deposition of Patrick Treadway at 21-25 (Dec. 8, 2010)).

In addition to the Open Meeting Act lawsuit, Hurst and Rabin also filed an Open Records Act lawsuit against the BRTA in October.

The Bartlesville Examiner-Enterprise reported that the BRTA did not take action on a settlement offer at its meeting Monday and rejected a previous offer during its April 13 meeting.

McMahan told the newspaper that the settlement offers would require BRTA trustees to say "they did things that they didn’t do.”

"It’s not something the trustees were willing to do," he said.

McMahan said the settlement offers also "asks for attorneys’ fees in the Open Records case, as well as the Open Meetings case, in amounts that are greater than what a court could order."

The court could not authorize any attorney fees in the Open Meeting Act lawsuit, he said.

That's correct. Unlike the Open Records Act, the Open Meeting Act lacks a specific provision authorizing successful plaintiffs to recover reasonable attorney fees. Thus, such plaintiffs are not entitled to payment for attorney fees because the state follows the American rule regarding their recovery. (Crutchfield v. Marine Power Engine Co., 2009 OK 27, ¶ 26)

“It provides that each litigant pay for legal representation and that courts are without authority to assess attorney fees in the absence of a specific statute or contract. Exceptions to this rule are narrowly defined because attorney fee awards against the non-prevailing party have a chilling effect on open access to the courts. For an award of attorney fees to be authorized under a particular statute, the authorization must be found within the strict confines of the statute,” the state Supreme Court explained in 2009. (Id.)

A successful plaintiff, though, could recover court costs at the discretion of the judge.

In January, the FOI Oklahoma Inc. board of directors approved a $1,000 grant to Rabin and Hurst, who are FOI Oklahoma members, to help support their costs of the Open Meeting Act lawsuit against the BRTA.

In March, the Bartlesville City Council allocated $30,000 to help pay the BRTA's legal expenses in the lawsuits.

Also of interest in the Examiner-Enterprise story Wednesday was McMahan's claim that attorneys’ billing statements may be kept secret under the Open Records Act as part of a litigation file.

"With the exception of a dispute of attorneys' billing statements, we believe that we have 100 percent delivered every record that's been requested by the plaintiffs," McMahan told the newspaper.

McMahan said the BRTA may keep any attorney records as confidential in its litigation file and noted that billing statements are a way attorneys communicate with a client.

"If the lawsuit were to go away, we would have no basis for objecting to turning over our attorneys' records," he said.


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 Inc. approves first grant to support an open government lawsuit

The FOI Oklahoma Inc. board of directors voted Sunday to give a $1,000 grant to two FOI Oklahoma members to help support their costs of an Open Meeting Act lawsuit against the Bartlesville Redevelopment Trust Authority.

Joel Rabin and Sharon Hurst filed the lawsuit in October, alleging that the BRTA purposefully misled the public about the purpose of its Aug. 11 executive session, the real subject of which was not permitted in an executive session.

The agenda for the meeting said the closed-door session would be to "Discuss Pending and/or Impending Investigations, Claims or Actions Affecting the BRTA."

But in an e-mail sent a day earlier, BRTA Downtown Development Director Patrick Treadway told the seven members of the authority:

You will note that the first item on the agenda is an Executive Session which seems to indicate an investigation. There is not an investigation. This is on the agenda to allow Dan to give you information which he believes you need to have for future projects. Dan purposefully provided the language for this agenda item.

Dan is BRTA attorney Dan McMahan of Oklahoma City.

No item of business was listed on the agenda under the executive session, an apparent violation of the Open Meeting Act, which states, "If a public body proposes to conduct an executive session, the agenda shall:

• Contain sufficient information for the public to ascertain that an executive session will be proposed;
• Identify the items of business and purposes of the executive session; and
• State specifically the provision of Section 307 of this title authorizing the executive session." (OKLA. STAT. tit. 25, § 311(B)(2)(a-c))

Rabin and Hurst are asking a Washington County judge to order the minutes and other documents from the executive session to be made public. But since filing the lawsuit, they have discovered that the BRTA does not keep minutes of its executive sessions. (See Deposition of Patrick Treadway at 21-25 (Dec. 8, 2010)).

Under the Open Meeting Act, written minutes of executive session discussions must be kept. (See Berry v. Bd. of Governors of Registered Dentists, 1980 OK 45, ¶ 12)

Public bodies not keeping minutes of executive sessions and not listing an item of business for an executive session are not uncommon in Oklahoma.

Through grants to plaintiffs and by initiating its own lawsuits, FOI Oklahoma Inc. hopes to discourage such "obvious and egregious" violations of the state's Open Meeting and Open Records laws.

The grant to Rabin and Hurst is the first awarded by FOI Oklahoma to help with the costs of an open government lawsuit. They are being represented by Doug Wilson, a Stillwater attorney and former member of the FOI Oklahoma Inc. board of directors.

A silent auction to raise money for the fund to defend open government will be held during FOI Oklahoma's fourth annual Sunshine Week conference on March 12 at The Oklahoman. Details regarding the conference will be posted here and on the website.


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

Glenpool City Council agenda omits specific item of business to be discussed with its attorney behind closed doors

What the Glenpool City Council will discuss with its attorney behind closed doors Tuesday night is being kept secret from the town's residents in an apparent violation of the state Open Meeting Act.

Rather than stating the specific investigation, claim or action to be discussed, the agenda provides only the specific statutory authorization for the proposed executive session.

But the Open Meeting Act states: "If a public body proposes to conduct an executive session, the agenda shall:

• Contain sufficient information for the public to ascertain that an executive session will be proposed;
• Identify the items of business and purposes of the executive session; and
• State specifically the provision of Section 307 of this title authorizing the executive session." (OKLA. STAT. tit. 25, § 311(B)(2)(a-c))

Seems pretty straightforward. So why does the Glenpool City Council agenda -- as have agendas for the Oklahoma State Regents for Higher Education and the Bartlesville Redevelopment Trust Authority in recent months -- include only the statutory authorization and omit the specific item of business to be discussed?

Because government lawyers contend that the Open Meeting Act provision allowing public bodies to discuss confidential communications with their attorneys is subject to the statute providing for the attorney-client privilege.

Are they correct? Does attorney-client privilege simply trump the agenda requirements under the Open Meeting Act?

No, say two lawyers who have successfully litigated open government lawsuits in the state.

The specific investigation, claim or action must be identified on the agenda as required by the Open Meeting Act, they said.

"The identification of the claim is extremely important. Absent the claim or case, the session has no limits. One can talk about whatever they want," said Michael Minnis of Doerner Saunders Daniel & Anderson L.L.P.

Listing the specific investigation, claim or action on the agenda is "intended to allow an initial objective evaluation that the proposed executive session meets the criteria of the cited statute and to allow a subsequent evaluation if someone objects that the executive meeting held under that agenda description exceeded the authorization," said Minnis.

"The latter refers to situations, for example, where the executive session discussed Case 1, not Case 2 as set forth in the agenda," he explained.

Identifying the item of business on the agenda would not nullify or impair the attorney-client privilege, which shields from third parties the content, not the topic, of confidential communications between a client and attorney, said Stillwater attorney Doug Wilson.

In fact, identifying the item of business on an agenda is no different from what attorneys must already do to withhold information under the state statute governing discovery in civil lawsuits, he pointed out.

That statute requires the attorney to "describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection." (OKLA. STAT. tit. 12, § 3226(B)(5)(a))

Attorneys for public bodies "should be able to do the exact same thing when identifying the items of business and purposes of a proposed executive session," said Wilson, a former member of the FOI Oklahoma Inc. board of directors.

Wilson explained that Oklahoma's attorney-client privilege is an evidentiary rule "simply inapplicable in the determination of whether or not a public body may lawfully enter into an executive session."

"The issue to be determined is not a rule of evidence. It is a matter of Open Meeting Act procedure," he said.

"While the two statutes (12 O.S. § 2502(D)(7) and 25 O.S. § 307(B)(4)) have similar wording, they clearly apply to two different realities. The Oklahoma Evidence Code is expressly limited in scope to 'criminal and civil proceedings, conducted by or under the supervision of a court, in which evidence is produced.' This is not the context under which an agenda is prepared to give proper notice of an executive session," said Wilson.

"It is simply erroneous to equate the statutory prerequisites for a public body to enter into an executive session with a rule of evidence which entitles a party to refuse to disclose and to prevent others from disclosing evidence otherwise relevant to the case.

"The procedures that must be followed to hold an executive session are different from the circumstances under which a 'public body'-client may refuse to disclose and prevent others from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the 'public body'-client," Wilson noted.

"The first has to do with the Open Meeting Act and is applicable in the conduct of public business," he explained. "The second has to do with the Oklahoma Evidence Code and is applicable only in the context of litigation."

Wilson noted that when the Legislature enacted the Open Meeting Act, it failed to allow executive sessions between public bodies and their attorneys. A 1977 Oklahoma attorney general opinion found that with the passage of the Open Meeting Act, public bodies could no longer privately confer with their attorneys because none of the Open Meeting Act provisions permitted such an executive session. (1977 OK AG 222)

Enactment of the Open Meeting Act had effectively negated the attorney-client privilege for public bodies under the state Evidence Code, Wilson said.

Government attorneys petitioned the Oklahoma Supreme Court. In 1978, Wilson explained, the court "reassured public bodies that they could still meet in confidence with their attorneys, but in order to reach this conclusion, the Court was required to say that the Open Meeting Act permitted such executive sessions (even though the OMA did not expressly permit such executive sessions)." (See Oklahoma Ass'n of Municipal Attys. v. State, 1978 OK 59)

In 1985, the Legislature solved the problem by amending the Open Meeting Act to allow executive sessions for the purpose of "confidential communications between a public body and its attorney concerning a pending investigation, claim, or action if the public body, with the advice of its attorney, determines that disclosure will seriously impair the ability of the public body to process the claim or conduct a pending investigation, litigation, or proceeding in the public interest." (OKLA. STAT. tit. 25, § 307(B)(4))

The Legislature treated it the same as the other topics for which a public body may meet in executive session, placing it under the requirements for all executive sessions.

"Ever since the Legislature amended the OMA in 1985 to allow executive sessions for confidential communications between a public body and its attorney, reference to the Evidence Code is no longer necessary to determine the authority for, and procedures to be followed in, convening an executive session," said Wilson. ""Now, it is strictly a matter of OMA procedure.

"Reference to Oklahoma Ass'n of Municipal Attys. v. State as support for how to interpret the current statutory framework is misguided and unworkable," Wilson said, "because the effective negation of the attorney-client privilege for public bodies created by the enactment of the Open Meeting Act without also permitting an executive session to be called for the purpose of confidential communications with counsel no longer exists.

"Since the 1985 amendment of the OMA, compliance or non-compliance with the Open Meeting Act is wholly determined by reference to the procedures set forth in the OMA, and those procedures require the public body to ’identify the items of business and purposes of the executive session,'" Wilson stressed.


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

BRTA misled public about purpose of executive session, violated Open Meeting Act, lawsuit alleges

The Bartlesville Redevelopment Trust Authority purposefully misled the public about the purpose of its Aug. 11 executive session, the real subject of which was not permitted in an executive session, according to a lawsuit filed last week against the BRTA.

The agenda for the meeting said the closed-door session would be to “Discuss Pending and/or Impending Investigations, Claims or Actions Affecting the BRTA.”

But in an e-mail sent a day earlier, a BRTA official told the seven members of the authority:

You will note that the first item on the agenda is an Executive Session which seems to indicate an investigation. There is not an investigation. This is on the agenda to allow Dan to give you information which he believes you need to have for future projects. Dan purposefully provided the language for this agenda item.

Dan is BRTA attorney Dan McMahan of Oklahoma City.

BRTA Downtown Development Director Patrick Treadway’s e-mail to the trustees is included in the lawsuit filed Thursday accusing BRTA members of violating the state Open Meeting Act.

Plaintiffs Joel Rabin and Sharon Hurst want a Washington County judge to order the minutes and other documents from the executive session to be made public.

Rabin and Hurst also filed a lawsuit earlier this month seeking information packets and other documents given to the BRTA board members for regular and special meetings.

The latest lawsuit notes the statutory exemption cited on the BRTA meeting agenda allows executive sessions for

Confidential communications between a public body and its attorney concerning a pending investigation, claim, or action if the public body, with the advice of its attorney, determines that disclosure will seriously impair the ability of the public body to process the claim or conduct a pending investigation, litigation, or proceeding in the public interest. (OKLA. STAT. tit 25, § 307(B)(4))

The lawsuit accuses the BRTA board of entering into the executive session “without first determining that disclosure will seriously impair the ability of the public body to process the claim or conduct a pending investigation, litigation, or proceeding in the public interest.”

The BRTA members voted to go into the closed-door session even though they knew or reasonably should have known that the purpose was not to discuss pending and/or impending investigations, claims or actions affecting the BRTA “but rather to allow Dan McMahan to convey – through an illegal and misleadingly-noticed executive session – information he believed would be needed for future projects,” according to the lawsuit.

The BRTA board members are Walter Allison, Jon Baccus, Randy Bluhm, Sherri Musselman Cox, City Councilman Tom Gorman, David Oakley Jr and Donna Skelly.

Rabin and Hurst are FOI Oklahoma members. They are being represented by Doug Wilson, a Stillwater attorney and FOI Oklahoma Inc. board member.


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

Open records lawsuit seeks information packets, documents from Bartlesville Redevelopment Trust Authority

Two FOI Oklahoma members are suing the Bartlesville Redevelopment Trust Authority for copies of the information packets and other documents given to its seven-member board for regular and special meetings.

Joel Rabin and Sharon Hurst have been requesting the records in writing since late August, according to the lawsuit filed Wednesday in Washington County District Court.

The Osage County residents have received no response to their requests, according to the lawsuit.

The Bartlesville Redevelopment Trust Authority was formed by the Bartlesville City Council to help develop downtown Bartlesville. According to its website:

One way the BRTA seeks to do this is by acquiring properties within or near the downtown area and making those properties available for redevelopment by private parties.

According to the lawsuit, Bartlesville City Clerk/Treasurer and Finance Director Mike Bailey told Rabin on Aug. 23 that attorney Dan McMahan of Oklahoma City would handle open records requests for the BRTA.

Rabin and Hurst are requesting the information packets and other documents distributed at BRTA meetings since Jan. 1.

Information packets distributed along with agendas to members of public bodies are open to the public under the Open Records Act, a state trial judge held in April 2004. (See Shero v. City of Grove, No. 05-CV-0137-CVE-PJC, 2006 U.S. Dist. LEXIS 80462, at **4-5 (N.D. Okla. Nov. 2, 2006))

“It is clear that the packets are public records,” said Delaware County District Judge Barry Denney. “The city can keep confidential or delete records they believe to be of confidential nature before distributing them to those who request copies.”

Under the Open Records Act, “A public body must provide prompt, reasonable access to its records....” (OKLA. STAT. tit. 51, § 24A.5(5))

A 1999 attorney general opinion stated succinctly that “prompt, reasonable access” generally means “only the time required to locate and compile” the public records. (1999 OK AG 58, ¶ 15)

“There is no provision in the Open Records Act for a public body to ‘withhold’ records for any amount of time, however small. The duty to provide prompt and reasonable access is complied with only when a public body properly attends to its duty to provide a record,” the opinion said. (Id. ¶ 11)

Rabin and Hurst are being represented by Doug Wilson, a Stillwater attorney and FOI Oklahoma Inc. board member.

The BRTA board members are Walter Allison, Jon Baccus, Randy Bluhm, Sherri Musselman Cox, City Councilman Tom Gorman, David Oakley Jr and Donna Skelly.




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