Glenpool charging more than $1,400 for set of city official's emails

A Glenpool real estate developer would have to pay more than $1,400 to receive copies of the city manager's e-mails for a seven-week period, according to documents provided to the FOI Oklahoma Blog.

Keith Jones said he believes the emails "will prove" that City Manager Ed Tinker and two other Glenpool officials "should not be employed by the City of Glenpool."

On Monday, the City Council is scheduled to discuss hiring an outside attorney "regarding indefinite but possible future actions of the Council with respect to the employment of the City Manager."

Jones requested emails sent from Assistant City Manager David Tillotson and City Planner Rick Malone to Tinker from April 1 to May 20 and all of Tinker's emails during that time.

Jones has been told to pay the $1,200 that Aktec Computer Solutions charged the city for 14.5 hours retrieving the emails and $200 for the Tulsa company to print 1,051 pages, according to the company's invoice to the city.

Jones, who writes a blog commenting on Glenpool issues, will be charged a $15-per-hour search fee for City Attorney Lowell L. Peterson "to review the resulting emails to determine whether any are subject to confidential privilege," according to a June 17 email from Peterson to Jones.

However, the state Open Records Act prohibits search fees being charged to "taxpayers seeking to determine whether those entrusted with the affairs of the government are honestly, faithfully, and competently performing their duties as public servants.” (OKLA. STAT. tit. 51, § 24A.5(3))

Jones said he isn't sure what final amount he will be asked to pay for the emails and hasn't decided whether to pay the $1,400 or appeal to the City Council.

"I'm waiting to see if the city council takes action against the city manager over the next two city council meetings," he said in an email Saturday.

Jones had asked to inspect the emails, but in the June 17 email, Peterson said:

The City is not going to allow you (or any other requester) to examine emails on-screen. This means it will be necessary for someone to retrieve and print both archived and currently stored emails. The charge for such printing will be identical to that of providing copies.

However, the state Open Records Act states that unless a statutory exemption applies, "All records of public bodies and public officials shall be open to any person for inspection, copying, or mechanical reproduction during regular business hours." (OKLA. STAT. tit. 51, § 24A.5)

Jones requested the emails on May 24. In an email June 16, Jones asked City Clerk Susan White when the emails would be available for viewing. "I think eighteen (18) working days is adequate time to allow me to view these records," Jones said in the email.

Peterson responded:

We have neither a duty nor a policy of reporting our office operations to you. Our obligation ends with complying with the Open Records Act and that does not include explaining delays to you.

Notwithstanding that fact, and not hereby setting any precedent of explaining ourselves to you, I will inform you of the following:

• For a portion of the time since your request, Ms. White was out of town and unable to give this her attention.
• As to another staff person being designated to reply to your request in Ms. White’s absence, that person has been preoccupied with a competing records requests that has literally numbered in multiple thousands of documents. That alone is a legitimate cause for the delay you have experienced.

Peterson said that based on requests for emails, "not just from you and not singling you out for any kind of disparate treatment, we are instituting a more formalized procedure regarding email requests."

"Don’t bother asking for a copy of a 'policy' as adopted by the City Council because this is an internal administrative decision that is outside the scope of Council oversight," Peterson added.

In a July 12 email, Peterson said Jones would have to pay the $1,400 before the city would complete his records request.

"Charges thus far do not include staff time for internal review to ensure compliance with all provisions of the Open Records Act," said Peterson.

Jones had already paid a $120 deposit, which Peterson said would be "applied to the final computation of charges."

Once the $1,400 payment is received, the records would be available "both in written and electronic format as requested, within two business days," Peterson said.

"If you advise us that you do not wish to proceed any further with this matter, or if we do not hear from you within 30 days from today’s date, we will not expend any more time on the request and your $120.00 deposit will be returned," he said.

Under the Open Records Act, public bodies "may charge a fee only for recovery of the reasonable, direct costs of record copying, or mechanical reproduction." (OKLA. STAT. tit. 51, § 24A.5(3))

In 1992, the state Supreme Court said the "reasonable, direct costs" for copying computer records should be "based upon the cost of materials [and] labor needed for providing the computer program and service to produce the requested data." (Merrill v. Oklahoma Tax Com'n, 1992 OK 53, ¶ 13)

Taking into account that decision and the statute’s admonition that fees are not to be used to discourage requests, a 1996 attorney general opinion said, "Public bodies . . . may only recover the cost of materials and labor specifically incurred in reproducing existing computer records in a computer-readable format. This means the public body could charge for:

• "The storage media used, including disk, tape, or other format unless provided by the requestor;
• Any access or processing charges imposed upon the public body because of the request;
• Any hardware or software specifically required to fulfill the request and reproduce the record in computer-readable format which would not otherwise generally be required or used by the public body; and
• The cost of labor directly attributable to fulfilling the request." (1996 OK AG 26, ¶ 10. See also 2005 OK AG 21, ¶ 11 (reaffirming 1996 OK AG 26))

"The public body would not, however, be able to charge for:

• Hardware or software or a percentage thereof which is otherwise generally required or used by the public body for day-to-day operations;
• Storage, processing or access charges not specifically linked to the request;
• Maintenance and materials generally required by the public body for day-to-day operations and not directly resulting from the request.

"In the context of a request for a paper record, this is like a public body being unable to charge for (1) a percentage of the cost of a typewriter or copying machine used to make the copies; (2) the cost of archiving and storing the records; or (3) the cost of fixing a copier which broke while copying a record," the opinion said.

A "per-page fee may not be charged for electronic copies of records which are kept in a computer-readable format," a 2005 attorney general opinion said. (2005 OK AG 21, ¶ 11)

The Open Records Act says fees "shall not be used for the purpose of discouraging requests for information or as obstacles to disclosure of requested information." (OKLA. STAT. tit. 51, § 24A.5(3)(b))


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.

Glenpool, Minco council candidates promise to comply with spirit, letter of open government law

Two candidates for city councils in Minco and Glenpool have signed FOI Oklahoma's Open Government Pledge promising to "comply with not only the letter but also the spirit of Oklahoma's Open Meeting and Open Records laws" if elected.

Doug Denard and Alyce Korb also also promised "to support at every opportunity the public policy of the State of Oklahoma that the people are vested with the inherent right to know and be fully informed about their government so that they can efficiently and intelligently exercise their inherent political power."

Korb is seeking the at-large seat on the Glenpool City Council.

Denard, a former mayor of Minco, is running for the town's Ward 2, Position 2, council seat.

Municipal elections are April 5.

FOI Oklahoma began the Open Government Pledge in 2008 as part of a national effort to spur public commitments to government transparency from candidates for president down to city council contests.

Instructions and a list of signers for the 2011 and previous elections can be found on FOI Oklahoma’s website.


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

Glenpool City Council skips executive session for which no topic was listed

The Glenpool City Council did not go into an executive session with its attorney Tuesday night that would have been an apparent violation of the state Open Meeting Act, The Glenpool Post reports.

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

In an e-mail last Friday to a Glenpool resident and several city officials, Glenpool City Attorney Lowell Peterson had cited the state's attorney-client privilege as the reason for not including the specific item of business to be discussed in the executive session.

"I have exercised my statutory prerogative to advise the City Council that disclosing the nature of the claims, or the names of the claimants, in the matter under consideration would not be in the public interest," Peterson wrote. "I don't expect to change my thinking on this."

Attorneys for other public bodies have in recent months also contended 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.

The FOI Oklahoma Blog on Monday had quoted two attorneys who explained why attorney-client privilege does not trump the Open Meeting Act's requirements for agendas.

The Glenpool Post published that blog posting online Monday.

At this point, I don't know what reason was given at the council meeting Tuesday night for not going into the executive session or the gist of the conversation between Peterson and the council members. When I find out, I will pass it along.


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