Tulsa police release 911 recording; City officials slow to release emails related to problems in its green-waste program

Tulsa officials changed course Friday, releasing 911 recordings of two calls made following a state trooper-involved fatal shooting at a local motel, the Tulsa World reported today.
 
Police Chief Chuck Jordan and the city's Legal Department indicated that the decision to release 911 recordings is discretionary, not because the Open Records Act requires it.
 
"Due to the fact that it was a state issue, I spent much time in deliberation over the release of the recordings," Jordan said. "Tulsa Police Department remains committed to transparency and in the public interest we are now releasing the 911 recordings as requested by the Tulsa World."
 
The newspaper's editorial writers understandably said they are "puzzle[d] over the idea that there might be less reason for public access to public records because of 'a state issue.'"
 
For the reasons I gave Thursday, I disagree that Jordan can pick and choose which 911 calls to make public. But at least he decided to release these recordings, thereby avoiding an extended fight with the newspaper.
 
However, that wasn't the only open government problem at Tulsa City Hall.
 
The Tulsa World reported this morning that more than a month after the request, city officials haven't released "emails that could settle questions over how much Mayor Dewey Bartlett and his administration knew about problems in the city's green-waste program."
 
The newspaper asked for emails containing the phrase "green waste" sent or received in the last year by six city officials, including Bartlett, City Manager Jim Twombly and the city's lead trash managers.
 
City spokeswoman Michelle Allen told the newspaper that the city's Legal Department is reviewing each of the some 2,500 emails and attachments "for compliance (with the Open Records Act) and appropriate content to fulfilling the request."
 
According to the newspaper, Bartlett said the emails must be checked manually before being released because "we have a responsibility to the public to give the correct information and not disclose info that is personal in nature."
 
In 2006, then-Attorney General Drew Edmondson told The Oklahoman that an OSU policy requiring all public records requests to be cleared by school attorneys might violate the Open Records Act by not providing "prompt and reasonable" access.
 
"If that policy were challenged, then a judge would have to determine whether the circumstances within that particular agency are not only prudent but necessary," Edmondson said. "I would say that it is not typical and typically would not be found to be reasonable."
 
Under the Open Records Act, public bodies are required to "designate certain employees who are authorized to release records . . . for inspection, copying, or mechanical reproduction. At least one person shall be available at all times to release records during the regular business hours of the public body."
 
In a 2005 open records training video for police, Edmondson said:

That person should have a working familiarity with the Open Records Act and be able to respond to citizen inquiries for records. And that would mean in most instances, if not all instances, they should not have to ask someone else for permission or authority.

He acknowledged that the designated person could encounter "an unusual request" requiring the advice of an attorney.
 
"But that should be a rare exception," Edmondson said. "By and large, the person at the desk who is supposed to respond to open records requests should be able to do so without consultation with anybody else."
 
Tulsa city attorneys are reviewing records compiled by other employees. That adds an unnecessary -- and perhaps illegal -- delay in releasing public documents.
 
It also adds to the impression of a city administration that doesn't genuinely believe in transparent government -- a perception that Bartlett cannot afford eight weeks before he faces re-election.
 

 
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.

Tulsa mayor says no public meetings to hash out differences with City Council, insists on private talks 1v1

Tulsa Mayor Dewey Bartlett Jr. refuses to publicly mediate disputes with the City Council, insisting instead on private discussions with each councilor, the Tulsa World reported this week.

Bartlett's reason for secret meetings? He's afraid that councilors might "posture or politicize things."

"Especially if someone gets irritated or gets mad, things could be said in the heat of the moment," he said. "For us to have very frank conversations, that's what needs to happen."

In other words, something might be said that Bartlett doesn't want the public to hear.

So much for the Open Government Pledge that Bartlett signed when he ran for office only a year ago.

In putting his name to that paper, Bartlett 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.”

But for a third time, Bartlett's actions indicate he either doesn't understand the promise he made to fellow Tulsans or had no intention of living up to it when he signed the document.

Last September, just a day or so after FOI Oklahoma Inc. received Bartlett's signed Open Government Pledge, he got a Tulsa County judge to seal his divorce case, which had been filed in public court seven years earlier. Bartlett wanted the documents closed after a small portion of the case file was posted on the conservative blog Batesline.

In March, Bartlett said open meetings would hamper frank discussions of a city-county committee looking for ways to save taxpayer money.

But the pledge that Bartlett signed isn't conditional. It contains no exemption for "frank discussions" only behind closed doors.

On Tuesday when Bartlett nixed the idea of public mediation with the council, he took a shot at the Tulsa World, which has editorialized in favor of open discussions.

"I know the media loves this," he said. "I feel like we all should get royalties off the newspapers that have been sold."

No, Mr. Mayor, your problem isn't with the news media.

It's with the spirit of our state's open government laws, which you endorsed when you signed that pledge. Here is a reminder: "The purpose of Oklahoma's Open Meeting and Open Records laws [is] to ensure and facilitate the public's understanding of governmental processes and problems."

That understanding occurs best when the public observes frank and open discussions by its elected officials.

As our state Supreme Court said, “If an informed citizenry is to meaningfully participate in government or at least understand why government acts affecting their daily lives are taken, the process of decision making as well as the end results must be conducted in full view of the governed." (Oklahoma Ass’n of Municipal Attorneys v. Derryberry, 1978 OK 59)

Tulsa city councilors, to their credit, seem to be taking that sentiment to heart, having twice rejected pressure from Bartlett to conduct these talks behind closed doors. I urge them to do so again.

In the meantime, FOI Oklahoma is asking state and local candidates on this November's ballot to sign the Open Government Pledge -- but with one caveat. Don't sign if you don't believe in and won't support the inherent right of Oklahomans to know and be fully informed about what their government does.

This is one campaign promise we won't let you ignore.

For more coverage of this issue:

• The feud, Tulsa World editorial, 9.16.10.
• Mayor's 'Mr. Positive' approach in speech gets mixed reviews, Brian Barber, Tulsa World, 9.16.10

Joey Senat, Ph.D.

Associate Professor

OSU School of Media & Strategic Communications

Tulsa City Council decides against closed-door mediation, votes for public meetings to hash out differences with mayor

The public's need to know prevailed in Tulsa on Thursday.

City councilors -- in a series of 7-2 votes -- decided against mediating their legal disputes with the mayor in a closed-door executive session, the Tulsa World reported.

Instead, the council invited Mayor Dewey Bartlett Jr. to participate in a series of public meetings to resolve their differences.

Bartlett indicated he would participate but warned that in public discussions "people have a tendency to posture."

On Wednesday, this blog argued against using that as an excuse for conducting the public's business behind closed doors. Certainly these elected officials can speak openly, honestly and candidly like adults in front of voters.

Councilor Roscoe Turner, who had signed FOI Oklahoma's Open Government Pledge during his 2009 campaign, voted against the closed mediation.

"Transparency is ultimate," he said. "We're not going to solve anything by doing it in secret."

Amen, brother.

Joey Senat, Ph.D.

Associate Professor

OSU School of Media and Strategic Communication

Closed-door mediation necessary for Tulsa City Council, mayor to be 'frank and open,' proposed mediator says

Mediation between the Tulsa City Council and Mayor Dewey Bartlett Jr. must take place behind closed doors for there to be "frank and open discussion," one of the proposed mediators told the Tulsa World this week.

“They need to feel that they can say something and it not be used against them legally, politically and socially,” said Daniel Boudreau, a former state Supreme Court justice.

“Honestly, people are not going to be (open) if journalists are sitting there reporting everything they say,” he said. “People would posture. They would not be candid.”

Well, I've heard the same argument put forth by other public bodies in Oklahoma and in other states. It was a heaping load of horse excrement elsewhere, too.

As Mark Thomas of the Oklahoma Press Association said about Tulsa officials' reluctance to resolve their problems publicly:

They're saying as elected officials, 'We don't want the public to know our true feelings. We want to say one thing behind closed doors and say something else at the coffee shop.'

Boudreau said he and the other proposed mediator, Sam Joyner, “can’t deny there’s a concern you could circumvent the spirit" of the Open Meeting Act.

“People have an absolute right to be informed about how government is working, and there ought to be transparency,” he said. “We are fully on board with that.

“You don’t want people using mediation to undercut the policy provisions of the act,” he said.

Of course, there was a "but."

Boudreau said only proposals would be discussed in the private mediation. “Any action you are going to take has to be explained, justified, argued and voted on for the record,” he said.

However, the pros and cons of those proposals won't be argued in plain view of the public. That will have taken place behind closed doors.

As a former Supreme Court justice, Boudreau is understandably comfortable with officials negotiating their differences of opinion behind closed doors. Granted, appellate courts issue their conclusions and reasoning in writing. But the public doesn't see the give-and-take, the exchange of ideas, that results in those decisions.

Our city councils, county commissions and other local public bodies don't operate with the same kind of secrecy as do courts.

Only an open deliberative process reveals which alternatives are rejected and why, both of which the public is entitled to know. (See 1982 OK AG 212, ¶ 5)

"The public is interested in how and why officials decide to act or not to act," said then-state Attorney General Jan Eric Cartwright in 1982. (Id. at ¶ 6)

The stated purpose of the Open Meeting Act is “to encourage and facilitate an informed citizenry’s understanding of the governmental processes and governmental problems.” (Okla. Stat. tit. 25, § 302)

That understanding is diminished when public bodies hash out proposed solutions in private.

Political cowardice on the part of elected officials is not an excuse for conducting a closed executive session.

If these elected officials are afraid to speak openly, honestly and candidly in front of the public, then Tulsa voters should hire replacements in the next election.

Joey Senat, Ph.D.

Associate Professor

OSU School of Media and Strategic Communications

Tulsa City Council likely to vote on proposal to mediate Open Meeting Act lawsuit, conflicts with mayor

Tulsa City Council Chairman Rick Westcott says he intends to call for a vote this week on whether the council will mediate its disputes with Mayor Dewey Bartlett Jr., the Tulsa World reported this afternoon.

Westcott said he will likely call a special meeting for Thursday to discuss and vote on the proposal by former Oklahoma Supreme Court Justice Daniel Boudreau and former federal magistrate Sam Joyner.

Joyner last week said the mediation could take place in an executive session of the council.

On Friday, this blog questioned whether the mediation could and should take place behind closed doors.

Among the issues suggested for mediation is the lawsuit filed by three Tulsans accusing the council of violating the Open Meeting Act during an executive session in June.

UPDATE: Westcott pushes vote back a week so Councilor Roscoe Turner can attend. Turner is out of town this week. Judge had hand in effort for council-mayor mediation

Joey Senat, Ph.D.

Associate Professor

OSU School of Media and Strategic Communication

Tulsa City Council's attorney says executive session starts when 'door is closed'; Experts disagree

The Tulsa City Council's attorney says executive sessions don't start until the "door is closed and the chairman says, 'We are now in executive session,'" the Tulsa World reported today.

That same attorney, Drew Rees, had advised council members Thursday that they could vote in executive session to exclude Tulsa Mayor Dewey Bartlett from the meeting.

His reasoning at the time was that the vote was procedural and, therefore, didn't violate the state Open Meeting Act.

(For why that reasoning doesn't hold up, read,

Tulsa City Council votes in executive session to kick mayor out of meeting.)

But Friday, Rees told the Tulsa World that the Council was not in executive session when the vote occurred.

Rees conceded that the Council had taken a public roll-call vote to enter into executive session but said such sessions don't start until the "door is closed and the chairman says, 'We are now in executive session.'"

That's creative -- but nonsense still the same.

Attorney General spokesman Charlie Price noted that the Open Meeting Act doesn't say an executive session begins when the public body is behind closed doors and someone declares the meeting has started.

Under the statute, "The executive session is authorized by a majority vote of a quorum of the members present and the vote is a recorded vote." (OKLA. STAT. 25, § 307(E))

As Mark Thomas of the Oklahoma Press Association explained to the Tulsa World:

"Once they publicly utter the words 'aye' or 'yes' to the motion and the vote is recorded, that's all that is required by law. It doesn't matter whether the door is opened or closed, the lights are on or off, or a gavel is banged on the table — surprise, surprise, you're in executive session."

Bartlett says he is considering filing a criminal complaint against the Council.

Rees, btw, is a Republican candidate for the Tulsa County Commission District 3 seat.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

Tulsa City Council votes in executive session to kick mayor out of meeting

Tulsa city councilors voted in executive session Thursday to remove Mayor Dewey Bartlett from their meeting to discuss the results of an independent investigation into his chief of staff, the Tulsa World reported Thursday.

"I told them that I had the right to enter the room and be part of the meeting, and I told them they were in violation of state law because they took a vote while in executive session," Bartlett told the newspaper.

Under the Oklahoma 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. 25, § 307(D)(3))

Another provision of the statute also requires that "[i]n all meetings of public bodies, the vote of each member must be publicly cast and recorded." (OKLA. STAT. 25, § 305)

Bartlett said the Council voted unanimously to exclude him from the meeting. That vote occurred behind closed doors.

The Council also is limited to discussing in executive session only the topics listed on the agenda. Only nine topics are permissible for executive sessions. Excluding the mayor from the executive session was not on the agenda and is not one of the permissible topics. (OKLA. STAT. 25, § 307(B))

After the meeting, Council attorney Drew Rees said councilors had not violated the Open Meeting Act because the vote was purely a procedural matter on who should be involved in the meeting, reported the Tulsa World.

But that vote was not "publicly cast" as required by the Open Meeting Act.

Perhaps Bartlett will file a complaint with police. Violating the Open Meeting Act is a misdemeanor punishable by up to the one year in the county jail and a $500 fine. (OKLA. STAT. 25, § 314)

Bartlett and four of the nine city councilors signed FOI Oklahoma's Open Government Pledge during their 2009 campaigns. The councilors are Roscoe Turner, D-Dist. 3; Jim Mautino, R-Dist. 6; Bill Christiansen, R-Dist. 8; and G.T. Bynum, R-Dist. 9.

To abide by that pledge and the Open Meeting Act, the Council on Thursday should have reconvened in the public meeting to discuss and vote on excluding the mayor. The public was entitled to observe the discussion and voting.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

Dear Mayor Bartlett: Please live up to your campaign pledge of open government

As a candidate for Tulsa mayor, Dewey Bartlett Jr. 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.”

But in today's Tulsa World, Bartlett said having open meetings of a city-county collaborative committee would likely hamper frank discussions by its members.

“It seems to me that when some things are said regarding policy, there are a lot of ‘what if’ scenarios, and I think in those cases it’s probably not necessary for an open meeting,” he said.

Bartlett even seemed dismissive of Tulsa Councilman Chris Trail, who said he might vote for the committee if its meetings were open. Bartlett said if that's Trail's stipulation, “he doesn’t have to worry about being involved with it.”

How ironic that Trail, who didn't sign FOI Oklahoma's Open Government Pledge, is calling for open meetings, but Bartlett -- who did sign -- seems opposed to the public's right to observe open and frank discussions by its elected officials.

The pledge isn't conditional, Mr. Mayor. It contains no exemption for "frank discussions" only behind closed doors.

By signing the pledge, Mr. Bartlett, you endorsed "the purpose of Oklahoma's Open Meeting and Open Records laws to ensure and facilitate the public's understanding of governmental processes and problems."

That understanding occurs best when the public observes frank and open discussions by its elected officials.

More than 30 years ago, our state Supreme Court said, “If an informed citizenry is to meaningfully participate in government or at least understand why government acts affecting their daily lives are taken, the process of decision making as well as the end results must be conducted in full view of the governed." (Oklahoma Ass’n of Municipal Attorneys v. Derryberry, 1978 OK 59)

That's true even for discussions by the proposed Collaborative Government Advisory Committee, which would look for ways that Tulsa and Tulsa County could save taxpayer money by sharing services and purchases.

Don't fear open government, Mr. Bartlett. It's what you promised the voters.

Joey Senat, Ph.D.
Associate Professor
OSU School of Journalism

Open government awards go to Tulsa World, OKC public information director; OKC attorney, Oklahoma County district attorney garner Black Hole Award

The Tulsa World and Kristy Yager of the city of Oklahoma City were named winners Saturday of FOI Oklahoma awards for their commitment to freedom of information and openness in government.

The organization’s Black Hole Award for thwarting the free flow of information went to Oklahoma County District Attorney David Prater and the Oklahoma City city attorney’s office.

The third-annual awards were presented during Oklahoma Sunshine `10 conference: Privacy, Politicians & the Public’s Need to Know. The conference was in conjunction with national Sunshine Week activities celebrating and promoting the public's right to know.

The World received the Ben Blackstock Award for its nearly decade-long effort to gain access to computerized records withheld by the Department of Public Safety. The award goes to a non-governmental person or organization.

The newspaper filed suit in 2001 after then-Commissioner Bob Ricks rejected almost an entire open records request for computerized and paper records on the Oklahoma Highway Patrol’s use of force, traffic stops and searches and agency procedures.

The World sought the records to review the agency’s treatment of minorities who were stopped and searched, among other issues.

After court rulings, the World resolved issues with the agency in 2008 and 2009. The DPS recently paid a substantial portion of the legal fees the World incurred.

"We commend the Tulsa World for being a leader in open records and open meetings issues in this state,’’ said Dick Pryor, president of FOI Oklahoma.

"The World has a strong and significant tradition of protecting the public’s right to know," said Pryor, deputy director and managing editor of OETA, the Oklahoma Network.

An honorable mention went to Chris Tharp, who hired an attorney to compel the Broken Arrow school district to release information contained in detailed legal bills. (Read related blog postings.)

An honorable mention also went to Carol Austin of Vinita who used the state’s Open Records Act to reveal information about Vinita city government. (Read related Tulsa World story.)

Yager won the Sunshine Award for consistently working to provide useful information to the public. The award is presented to a governmental organization or individual who has shown a commitment to freedom of information.

As public information director for Oklahoma City, Yager has worked with local media in redesigning the city's Web site to make it easier to find information.

Live streaming video is available of city council meetings and even some community meetings. Video of the council meetings are linked to the agenda. By clicking on an agenda item, the video goes straight to the discussion of that item.

A reporter who nominated Yager said she and her staff "seem to understand their role is to provide the public with honest and accurate information and let the chips fall where they may, rather than constantly controlling the message with an iron fist.’"

For the Black Hole Award, FOI Oklahoma cited the refusal of the city attorney and Prater to release employee birth dates even after an attorney general’s opinion said the information was presumed open.

Without a birth date, it is impossible to distinguish between people who might have common names.

Prater called a request for such information by The Oklahoman "clearly an unwarranted invasion of the personal privacy’" of county employees.

He refused to explain why releasing birth dates would be an invasion of privacy and did not address the public’s interest in checking names and birth dates of county employees against databases of criminal records, political contributions and other information the public might want to know about its employees.

Prater told a reporter that he was not concerned about any confusion his decision might cause. (Read related blog posting.)

The next week, Assistant City Attorney Richard Smith told the newspaper that disclosure of city employee birth dates would not "assist citizens in the exercise of" their inherent political power. He said the reporter would have to request the birth date for each employee individually and explain its "specific concern in relation to that employee." (Read related blog posting.)

Meanwhile, Tulsa Mayor Dewey Bartlett Jr. honored the attorney general opinion and ordered employee birth dates released with the city’s payroll data as it has done for several years.

FOI Oklahoma is a statewide organization that actively works to promote the right of access by the public.

Other coverage of the awards:

• Tulsa World receives nod for freedom fight


• Oklahoma group roasts local lawyers over records

Open Government Pledge signers elected to Tulsa mayor's office and three more seats on City Council

Three signers of FOI Oklahoma Inc.’s Open Government Pledge won seats on the Tulsa City Council and a fourth was elected as the city's mayor in the municipal election Tuesday.

A fifth signer, Republican Bill Christiansen, was re-elected to his Tulsa City Council District 8 seat in the Sept. 8 primary.

Each has pledged that the city's government "will comply with not only the letter but also the spirit of Oklahoma's Open Meeting and Open Records laws.”

Mayor-elect Dewey Bartlett Jr. and the council members take office Dec. 7.

Of the nine council districts, four will be represented by councilors who signed the pledge. They are Roscoe Turner, D-Dist. 3; Jim Mautino, R-Dist. 6; Christiansen, R-Dist. 8; and G.T. Bynum, R-Dist. 9.

Tulsans should expect Bartlett and the four councilors to keep their promise “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.”


Joey Senat, Ph.D.
Associate Professor
OSU School of Journalism

Tulsa mayoral candidate signs Open Government Pledge, then asks court to seal his divorce case from public view

A Tulsa County special district judge Thursday sealed the divorce file of Tulsa mayoral candidate Dewey Bartlett Jr. at his request, the Tulsa World reports today.

Bartlett’s request came a day or so after FOI Oklahoma Inc. received his signed Open Government Pledge “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.”

Note to Mr. Bartlett: Sealing court records isn’t supporting the public’s right to know.

Bartlett cited fears of identity theft as the reason for closing the case, which was filed in 2002.

Michael Bates had begun posting a small portion of the case file on his conservative blog Batesline earlier in the week. Bates told the newspaper he had redacted all the sensitive information before posting them.

Regardless, Bartlett’s argument for closure is a specious one.

As The Oklahoman reported earlier in the week during its battle with Oklahoma City officials over the release of an employee’s birth date, open government advocates nationally say the fear that releasing private information from public records will cause identity theft is unjustified. (Read related blog.)

“Those fears aren’t backed up with statistics or even anecdotal evidence showing public records are a source for identity thieves,” reporter Bryan Dean summarized.

Public records were not listed as a significant source of identity theft by the 2006 Identity Fraud Survey Report co-released by the Better Business Bureau. It said 30 percent of identity theft came from stolen wallets or purses, 15 percent from close associates such as friends and family, 9 percent from stolen mail and garbage, and 9 percent from computer hacking.

The Tulsa World reported in early August 2008 on the growing problem of Oklahoma judges closing public access to court files, estimating that judges had sealed at least one record in more than 2,300 cases statewide.

Reporter Ginnie Graham revealed that documents removed from public view included financial records of companies and hospitals, settlements in wrongful-death lawsuits, divorce proceedings, protective orders and name changes.

So why should Bartlett’s divorce case remain open to public scrutiny?

First, the public is entitled to make the most informed choice possible when selecting who will operate its government. Divorce files, like many other court records, can provide valuable information about a candidate.

For example, Bartlett said the case file included financial information not just about him but also former and current business partners. The public should know about the business dealings of its would-be elected officials. More information about candidates helps us better exercise our inherent political power.

Second, if Bartlett’s records in the public court system are closed, why not seal everyone’s files?

Because the information in those court files can help each of us make more informed life-affecting decisions. Choosing a business partner? Hiring an employee? Selecting a doctor, baby-sitter or day-care provider for your child? Concerned about your daughter’s new boyfriend? Etc.

Personal information in government-held records can help us make better decisions about the people and events most important in our lives.

Third, access to court records assures the public that everyone is treated equally in our judicial system and that decisions aren’t “based on secret bias or partiality” – as the U.S. Supreme Court said in defense of open courts.

“Closed trials breed suspicion of prejudice and arbitrariness, which in turn spawns disrespect for law,” the Court said. The same can be said for court records sealed from public view.

Bartlett told the Tulsa World he would be “glad for any member of the legitimate media to have total access” to his divorce file. If elected mayor, would he restrict access to other government documents only to the “legitimate media”? Will he be the one to decide who is a member of the "legitimate media"?

The public’s right to know belongs to the public. That means everyone, including political bloggers.

Signing the Open Pledge is a promise to support the spirit of open government – even when it inconveniences the candidate.


Joey Senat, Ph.D.
Associate Professor
OSU School of Journalism