Open Records Act lawsuit filed against Muskogee County district attorney, who claims IT department cannot search emails for requested documents

The operator of an online news service filed a lawsuit Thursday accusing Muskogee County District Attorney Larry Moore of violating the Open Records Act by not producing documents concerning courthouse security and surveillance when they were requested.
 
Leif Wright's lawsuit also asks a judge to order Moore to provide requested emails on the subject.
 
Moore has told Wright's attorney that the IT department housing the emails cannot search them for the requested records.
 
In September, the Muskogee County Bar Association filed a complaint against Moore accusing him and others in his office of having access to live audio and video feeds of courtrooms while defense lawyers privately consulted with clients, the Muskogee Phoenix reported.
 
In October, Wright, who operates Muskogeenow.com, requested from Moore's office all records related to the recording of video and audio in the Muskogee County Courthouse.
 
Moore responded in a letter to Wright's attorney, Ronald E. Durbin II of Tulsa, that most of the records did not exist.
 
Durbin responded in writing that he found it "extremely difficult to believe that, given the nature of the controversy related to this issue, that no emails and/or text messages exist" and that he had reason to believe they did.
 
Moore subsequently provided a number of the documents.
 
However, in a Nov. 7 letter to Durbin, Moore said the District Attorneys Council Information Technology Division, which stores his office emails, "did not have the technological capability to conduct such [a] search for e-mails or text messages."
 
Wright's lawsuit contends that Moore's office does have the capability to search emails and asks a judge to order Moore to do so.
 
The lawsuit also accuses Moore of violating the Open Records Act by not providing documents when they were first requested.
 
Moore told the Muskogee Phoenix Thursday night that had not seen the petition but that he and his office had complied with Wright's request.
 
"We have given him what he has requested under the Open Records Act," Moore told the newspaper. "You can't give them what you don't have. We've searched the records to the best of our ability and have found nothing else."
 
But Wright counters in a column this morning:

Moore said he isn't obligated to give the public those public documents, since he has no way to search them.
 
We believe it is, however, his obligation to do so, and it stretches credulity to say that, in 2012, somehow emails are completely unsearchable.
 
The most basic home computer has the ability to search emails, why doesn't the agency in charge of making sure those emails get archived have the ability to search them once they're archived?

Darn good question.
 

 
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.

Complaints that public bodies in Bernice, Mannford conducted executive sessions in apparent violations of Open Meeting Act

The Bernice Board of Trustees and the Mannford School Board are each accused of recently conducting executive sessions that violated the state Open Meeting Act.

Prior to each session, the elected officials dismissed warnings that the closed-door sessions failed to meet the statutory requirements, according to complaints sent to FOI Oklahoma Inc.

In Bernice, the Board of Trustees held executive sessions on March 14 and April 11 to discuss "a town maintenance person" under the personnel exemption. (OKLA. STAT. tit. 25, § 307(B)(1))

No other information regarding the executive sessions was listed on the agendas.

Resident Steve Miller said the board is creating the position and voted after the March 14 executive session to post advertisements for a part-time maintenance person.

Miller told the FOI Oklahoma Blog that he pointed out to the trustees prior to the April 11 executive session that a 2006 attorney general opinion prohibits such sessions to discuss "a job opening for a public officer or employee when no particular individual is to be discussed." (2006 OK AG 17, ¶ 10)

The exemption applies only "to discussing particular current or prospective public officers or employees," then-Attorney General Drew Edmondson said in the opinion. (Id.)

"The legislative history of this exception demonstrates the Legislature's intent to limit executive sessions to discussions involving particular current or prospective public officers or employees, not to general discussions of job openings for the position of a public officer or employee when no individual is going to be discussed," according to Edmondson. (Id. ¶ 8)

"Limiting the exception to the discussion of particular individuals protects the confidentiality of current or prospective public officers or employees and preserves the public’s right to be informed about government processes," he said. (Id. ¶ 9)

A 1997 opinion by Edmondson says agenda items for an executive session under the personnel exemption must include either the name of the person or the person's position if it "is so unique as to allow adequate identification." (1997 OK AG 61, ¶ 5)

In a letter (pages 1 & 2) that Miller said he gave to the Bernice mayor and trustees on April 11, he objected to the executive session scheduled for that night. Miller said he also sent the letter to Delaware County District Attorney Eddie Wyant.

Another problem: The April 11 agenda listed the wrong statutory authorization for the executive session. The item said the topic was "the employment, hiring, appointment, promotion, demotion, disciplining or resignation of a town maintenance person as authorized by Title 25 O.S. 307(B)(2)." However, that exemption is for "negotiations concerning employees and representatives of employee groups."

In Mannford, attorney Ronald E. Durbin II said he told the Board of Education during an April 11 meeting that its executive session involving the personnel exemption would violate the Open Meeting Act.

The agenda listed a "Proposed executive session to consider and possibly act upon the following personnel issues: (1) Submitted resignations; (2) Upcoming renewal of certified and support personnel; (3) Employment of special education teacher; Authorized by 25 O.S. 307 (B)(1)."

Durbin said he pointed out to the board that the 1997 attorney general opinion requires that the employee's name or unique title be included on the agenda.

Durbin said the superintendent replied that the school board was free to discuss "any personnel" and refused to identify which employees would be the subject of the closed-door session. Durbin said he was told to contact the school district's attorney, Bryan K. Drummond of Rosenstein, Fist & Ringold in Tulsa.

In a letter to Drummond on Friday, Durbin said the agenda "clearly violates the public notice provisions of the Open Meeting Act."

Durbin said the board's refusal to provide the names "was not out of ignorance but rather a willful disobedience" of the Open Meeting Act. He asked Drummond for not only the employee names but also for "all minutes, tape recordings, and all other records, notes and/or documents which [were] reviewed during that executive session."

Durbin of Moyers, Martin, Santee & Imel in Tulsa served as Tulsa Councilor G.T. Bynum’s attorney during open meeting issues involving the council last summer. Durbin warned the council against using small group meetings to mediate issues with the mayor, saying such meetings would be "not only inadvisable but would also result in a clear violation of the OMA.”

Both Durbin and Miller seem to have valid complaints regarding the respective executive sessions. The question is whether the local district attorneys will treat these apparent violations seriously.


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 city councilor's attorney agrees: Small group meetings cannot be used to mediate disputes with mayor, all votes must be public

Tulsa city councilors meeting in groups of less than a quorum to mediate disputes with the mayor would be a violation of the state Open Meeting Act, an attorney for one of the councilmen advised.

All council votes to settle the disagreements would have to be made in the public portion of its meeting, Ronald E. Durbin II also said in his Aug. 11 letter to the mayor's attorney.

On these two points, Durbin came to the same conclusions as those published by this blog on Aug. 9.

Some councilors believed they could meet with Mayor Dewey Bartlett Jr. in small groups or individually to avoid violating the Open Meeting Act.

But Durbin warned -- just as this blog had done -- that such meetings would be "not only inadvisable but would also result in a clear violation of the OMA," explaining:

In this situation, it is obvious that any plan to use smaller numbers of Councilors would inevitably result in the need for those Councilors in attendance to share information and discuss settlement proposals with those Councilors not in attendance. This activity would be a clear violation of the OMA, and thus, only an executive session including a quorum of the Councilors should be utilized if any mediation session is to be closed to the public.

The Open Meeting Act defines a meeting as “the conducting of business of a public body by a majority of its members being personally together or . . . together pursuant to a videoconference." (Okla. Stat. tit. 25, § 304(2))

A 1981 state attorney general opinion prohibits serial meetings among the members of a public body.

“Permitting a single member of the governing body to obtain a consensus or vote of that body by privately meeting alone with each member, would be to condone decision-making by public bodies in secret, which is the very evil against which the Open Meeting Act is directed,” said then-Attorney General Jan Eric Cartwright. (1981 OK AG 69, ¶ 17)

In other words, members of a public body cannot meet secretly in smaller groups to decide public business.

The Open Meeting Act also requires that "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. tit. 25, § 307(E)(3))

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

As such, Durbin agreed, "Any decision by the City Council to affirm terms reached during the proposed mediation must be taken outside of the executive session."

Though not an issued addressed by Durbin, the public should expect the councilors to clearly explain the details what they are voting on. Just saying they are voting on what was decided behind closed doors would be an insult to the voters of Tulsa.

In his 11-page letter, Durbin explained why he believes the council is entitled to meet in executive session to mediate the various disagreements with Bartlett.

Durbin relied largely upon exemptions allowing a public body to meet in executive sessions to discuss individual salaried employees and to discuss investigations and pending litigations with its attorney. He noted that under the latter exemption, the council would have to "determine that 'disclosure will seriously impair' the body's ability to deal with the issues in the public interest."

Durbin also believes the council may invite into the executive session the several attorneys representing councilors individually, saying:

While in my personal opinion, as well as the opinion of my client, Councilor G.T. Bynum, that the purposes of mediation will best be served if the Councilors and the Mayor have frank and open communication with as few attorneys present as possible, I recognize the fact that it may become necessary for some attorneys to attend the proposed mediation.

Durbin relied upon a 1978 attorney general opinion deciding that a school board could have permitted a legislator to attend an executive session by "

exercising its judgment and discretion."

(1978 OK AG 144)

I've heard the current attorney general, Drew Edmondson, tell public officials that they may invite whomever they want into an executive session absent a specific statutory prohibition.

However, what the Tulsa City Council may do and should do are two different things in this situation.

The city attorney's office is representing the council against the lawsuit accusing councilors of violating the Open Meeting Act during an executive session in June. The other attorneys should be representing the councilors only as individuals should they be later prosecuted for violating the statute.

Those attorneys, including Durbin, have no more right than the rest of Tulsa to attend that closed door meeting. If the council is going to exclude the public, then those attorneys should have to wait outside as well.

* Durbin's letter can be found online as part of the Tulsa World's coverage: Mediation between Tulsa mayor, council could break law, by Brian Barber and P.J. Lassek.

Joey Senat, Ph.D.

Associate Professor

OSU School of Media and Strategic Communications