AG says Open Meeting Act doesn't apply when public bodies discuss 'broad general matters' possibly related to their business but on which they cannot take action

Public bodies don't have to abide by the Open Meeting Act when meeting with governmental agencies or private entities to discuss "broad general matters that may be related to the business of the public body, but are not matters on which the public body could take action," Attorney General Scott Pruitt said in a written opinion issued today.
 
Instead, Pruitt said, the statute applies only when public bodies are "considering discrete proposals or specific matters that are within the agency's jurisdiction."
 
For example, Pruitt said the state Corporation Commission isn't subject to the Open Meeting Act when meeting with other governmental agencies "to discuss mutual business, or attends a meeting of a private entity concerning a topic of interest to the Oklahoma Corporation Commission's business, ... unless, at the meeting, the commissioners are considering discrete proposals or specific matters that are within their jurisdiction."
 
And the statute wouldn't apply when two of the three commissioners attends a state Senate or House "meeting to provide information about the Commission's business to aid the Legislature in its process of decision-making" because the commissioners would not be "considering discrete proposals or specific matters within their jurisdiction."
 
But when at least two commissioners are present at a public utility hearing, the Open Meeting Act applies because "the commissioners are engaged in the 'conduct of business' because they are considering discrete proposals or specific matters that are within their jurisdiction."
 
Even though Pruitt's 19-page opinion dealt with the Open Meeting Act's application to the Corporation Commission, it sets the framework for other public bodies seeking to discuss issues of public concern with governmental agencies and even private entities.
 
The Open Meeting Act defines a meeting as:

[T]he conduct of business of a public body by a majority of its members being personally together or, ... together pursuant to a videoconference. Meeting shall not include informal gatherings of a majority of the members of the public body when no business of the public body is discussed. (OKLA. STAT tit. 25, §, 304(2))

Pruitt noted that opinions by his predecessors "do not limit the types of discussion that fall under the Act to those that 'effectively predetermine official actions,' and speak in broader terms about discussion, deliberation, and voting as all being the 'conduct of business.'"
 
He also noted the Oklahoma Supreme Court has said that because the Open Meeting Act was "enacted for the public's benefit," the statute "is to be construed liberally in favor of the public." (Int’l Ass’n of Firefighters v. Thorpe, 1981 OK 95, ¶ 7)
 
"As a result," Pruitt reasoned, "the state law term 'conduct of business' might well include discussions in which the members of the public body are considering information that will aid them in their decision-making, even though those discussions do not necessarily 'effectively predetermine their official actions' or cause the members to form a reasonably firm position on the matter at that moment.
 
"[H]owever, we do not believe that even a liberal construction of the term 'conduct of business' could include broad general matters that may be related to the business of the public body, but are not matters on which the public body could take action.
 
"A public body is thus engaged in the 'conduct of public business' when a majority of the members are considering discrete proposals or specific matters that are within the agency's jurisdiction."
 
For instance, Pruitt said, when at least two corporation commissioners are present at the same time at a legislative public utility hearing, the hearing is subject to the Open Meeting Act because they are "participating in discussions of discrete proposals regarding the regulation of a public utility, a matter within their jurisdiction."
 
"Citizens observing the commissioners at the public utility hearings could gain insight into how commissioners arrived at the decisions that affect their daily lives and an understanding of governmental processes," Pruitt said.
 
The Open Meeting Act would apply even if the two commissioners were "not present at the same time for the entire proceeding" or even if they had "chosen to informally 'drop in' on the same public utility hearing at the same time."
 
"Whether the Corporation Commission or another public body is engaged in the 'conduct of business' in other types of gatherings requires a consideration of the particular facts and circumstances," Pruitt emphasized.
 
As for other applications of the Open Meeting Act to the Corporation Commission, Pruitt said:

• Including meeting notices in utility bills, publishing them in newspapers, and posting them on a calendar in the lobby or other area of the Jim Thorpe Office Building fails to meet the statute's requirements.


• Minutes must record when commissioners are absent during portions of a meeting. Pruitt suggested using a notation such as "Commissioner A left the meeting" and "Commissioner A returned to the meeting" in the section of the minutes describing the matter under consideration when the commissioner left and returned. He said commissioners are absent when they are "not both visible and audible to the other members and the public."


• "Neither a court reporter's untranscribed verbatim notes nor transcript meet the Oklahoma Open Meeting Act's requirements for minutes of a public meeting."

Pruitt also said commissioners "may not post notice of and attend two separate meetings held in separate locations at the same time on the same day."
 
"As a majority of the Corporation Commission cannot be in two places at the same time, it is not possible for two 'meetings' to occur at the same time."
 
For example, notices and agendas might be posted for a commission meeting and a public utility hearing conducted by an administrative judge to be held at the same time in different locations. This would allow the commissioners "to move back and forth between the two meetings as they desired."
 
Pruitt called such a practice "misleading to the public."
 
"Rather than 'encourage and facilitate an informed citizenry's understanding of governmental process and governmental problems,' it would more likely confuse and frustrate citizens who wanted to observe the commissioners actions in both the commission meeting and the public utility hearing," Pruitt said. "The public would essentially have to follow the individual commissioners back and forth from place to place.
 
"An interpretation of the Open Meeting Act to allow posting of two sets of notices for meetings held at the same time on the same day but in different locations so individual commissioners can move back and forth between the two meetings as they desire does not attain or champion the spirit and purpose of 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.

Public may speak up at administrative law hearing for access to annual reports submitted to state Corporation Commission

The public will be allowed to comment during an administrative law hearing Thursday regarding public access to telephone company annual reports submitted to the Oklahoma Corporation Commission.

The hearing starts at 10:30 a.m. It has been moved to Room 301 (a large hearing room) of the Jim Thorpe Building in Oklahoma City.

Administrative Law Judge Jacqueline Miller will ask for public comment.

Miller's recommendation will be sent to the commission, which will decide whether to give the public more access to the reports.

The OCC Public Utility Division director is asking commissioners to issue an order determining what information required to be in the annual report "will be deemed proprietary, confidential, and competitively sensitive."

David B. Dykeman also wants the commission to determine "what records will be deemed proprietary, confidential, and competitively sensitive in Protective Orders."

Public access to the reports is important.

As the OCC's own legal counsel has noted, the 2004 commission order closing all public access to the reports is overly broad to the point of absurdity.

"Read literally it applies even to the names of telephone companies and other information already in the public domain," said Andrew Tevington.

The annual reports provide basic information about public utilities regulated by the three-member Oklahoma Corporation Commission.

If the information is important enough to be required in reports to this public agency, then it's important enough for the public to know.

For example, Schedule 7 of the annual report discloses the number of trouble tickets per exchange.

The reports don't contain information about individual callers or phone company employees.

But the reports do contain information "such as government subsidies received and total revenue," said Matt Skinner, OCC public information officer.

That information is related to the monies that telephone companies receive from the Oklahoma Lifeline Fund and the Oklahoma Universal Service Fund.

The Lifeline Fund subsidizes basic services to eligible low-income customers. The Universal Service Fund subsidizes the availability of reasonably comparable services at affordable rates in rural areas.

Both are financed by assessments placed on each telecommunications carrier operating in the state. The funding from each carrier is based on the percentage the company's Oklahoma intrastate telecommunications revenues represents of the total such revenues of all such companies. (OKLA. STAT. tit. 17, § 139.107)

As Tevington noted, these "funds require openness to public scrutiny to assure the citizenry that the monies are spent appropriately by the correct parties."

"Information concerning telecommunications lines and the leadership of telephone companies may provide necessary information for the public to make sure these funds are spent appropriately," he said. "The use of public monies by telephone utilities demands openness of their records in the commission's possession."

Yes, it does.

Oklahomans "are vested with the inherent right to know and be fully informed about their government." (OKLA. STAT. tit. 51, § 24A.2)

That principle creates a presumption that government-held information is open to the public. Unless an applicable statutory exemption exists, "information coming into the possession of a public body or a public official or records generated by a public body must be subject to the Open Records Act.” (2002 OK AG 5, ¶ 14)

The purpose of the Oklahoma Open Records Act is "to ensure and facilitate the public's right of access to and review of government records so they may efficiently and intelligently exercise their inherent political power."

That's tough for the people to do when information in the hands of government is kept from the public for no apparent overriding reason.

The intent of the statute "requires that questions of doubt as to the accessibility of government records be resolved in favor of access." (1988 OK AG 35, ¶ 3)

The Oklahoma Corporation Commission should resolve this question in favor of access by undoing its 2004 order and restoring the public's right to these annual reports.


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.

Order closing telephone companies' annual reports to public violates state Open Records Act, says Corporation Commission attorney

The Oklahoma Corporation Commission should not have closed public access in 2004 to all the annual reports it receives from telephone companies, the commission's legal counsel recently said.

Andrew Tevington said the 2004 order violates the Open Records Act by exceeding the commission's statutory authority to close public utility records in its possession.

"The scope of the order is absurd. It goes against the State’s policy that records will be open unless a good, supportable, indiviualized reason exists otherwise," said Tevington in written testimony submitted to the commission on Aug. 11.

He urged commissioners to revoke the 2004 order and to decide case by case whether any information in each telephone company's annual report should be kept confidential.

But Attorney General Scott Pruitt said,

Nothing in the express language of the [Open Records] Act dictates or restricts the manner in which the Commission makes such a determination - whether it be on a case-by-case basis particular to a specific utility or a determination that a category or type of information is confidential as applied to several utilities, as in the case of the Annual Reports.

The written testimony by Pruitt and Tevington was given as the commission considers a request by one of its officials to change the rule.

David B. Dykeman, director of the Public Utility Division, is asking commissioners to issue an order determining what information required to be in the annual report "will be deemed proprietary, confidential, and competitively sensitive."

Dykeman also wants the commission to determine "what records will be deemed proprietary, confidential, and competitively sensitive in Protective Orders."

A hearing on the merits of the request is scheduled before Administrative Law Judge Jacqueline Miller for 10:30 a.m. Thursday in Room 301 of the Jim Thorpe Building in Oklahoma City.

Tevington said the only testimony heard in 2004 was from representatives of four telephone companies and the then-Public Utility Division director.

Order No. 493818 "allowed all information in all telephone annual reports to be confidential."

Tevington contended that "goes too far for four reasons":

1. "The order is too broad. Read literally it applies even to the names of telephone companies and other information already in the public domain."
2. "The order covers too many telephone utilities. ... It applies across the board to all telephone companies without any determination of whether a specific company’s information requires protection."
3. "The order covers all of each telephone utility's annual reports without specific, individualized consideration of the information in any report. No attempt is made to discern whether any trade secrets or sensitive commercial information is even in the report."
4. "Order No. 493818 is a general order, analogous to an administrative rule, and was entered without appropriate public participation as required by" state law.

Tevington noted that the policy underlying the Open Records Act "seeks to make state government and government business transparent to the people" and that "disclosure is favored over secrecy."

He also emphasized that the Open Records Act does not create a right of individual informational privacy.

"In the ordinary course of government business, any person who submits information to a state agency has no right to keep this information confidential," Tevington said. "An expectation of confidentiality may exist only when the Legislature or Congress creates a specific exemption.

"Furthermore, even when an expectation may be created by statute, the party seeking confidentiality bears the burden of proving the specific record should be kept confidential.

"These provisions show clearly stated legislative policy requires records coming into the possession of a state agency to be presumed open to public access."

Under the Open Records Act, "The Corporation Commission shall keep confidential those records of a public utility, its affiliates, suppliers and customers which the Commission determines are confidential books and records or trade secrets." (OKLA. STAT. tit. 51, § 24A.22(A))

Based on that statutory language, Tevington argued, "The commission's statutory ability to decide some utility information may remain confidential does not allow the OCCC to make all information confidential.

"The Legislature did not say the Commission may keep records of public utilities confidential; instead, it said OCC may 'keep confidential those records of a public untility . . . which the Commission determines are confidential books and records or trade secrets.'" (emphasis included)

Tevington concluded that the order closing all the telephone company annual reports "goes beyond the legislative grant of authority."

The statutory language "indicates a decision concerning confidentiality must be made about one utility at a time," he said. "It is not appropriate to aggregate all public utilities of a class and make a blanket pronouncement about access.

"The Open Records Act requires an individualized determination of whether a specific utility's information should be protected from public scrutiny. One size does not fit all."

Tevington said the 2004 order "is overbroad both as to the number of entities it covers and as to the type of information is covers" and violates "the Open Records Act's requirements for specific findings."

He also noted that the telephone companies receive money from the Oklahoma Lifeline Fund and the Oklahoma Universal Service Fund.

"These legislatively created funds require openness to public scrutiny to assure the citizenry that the monies are spent appropriately by the correct parties," Tevington said. "Information concerning telecommunications lines and the leadership of telephone companies may provide necessary information for the public to make sure these funds are spent appropriately.

"The use of public monies by telephone utilities demands openness of their records in the commission’s possession."

The Oklahoma Corporation Commission consists of Chair Dana Murphy, Vice Chairman Jeff Cloud and Commissioner Bob Anthony. The three commissioners are elected by statewide vote to serve six-year terms.


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.