Update: Owasso officials making 'work session' documents available to public prior to meetings

Owasso residents can now read staff memoranda and other documents that form the basis for policy discussions by the City Council during its monthly "work sessions."

City officials had been withholding the documents, claiming they were drafts exempted under the state Open Records Act.

But the statute contains no provision allowing governments to keep "drafts" secret from the public.

Instead, the statute permits governments to keep confidential "personal notes and personally created materials . . . prepared as an aid to memory or research leading to the adoption of a public policy or the implementation of a public project."

The exemption applies only prior to the official "taking action, including making a recommendation or issuing a report." (OKLA. STAT. tit. 51, § 24A.9)

In late October, City Manager Rodney Ray agreed to release those "work session" documents to the Owasso Reporter even though he disagreed that the Open Records Act required him to do so.

The Owasso Reporter asked City Attorney Julie Lombardi if the work session documents would be made available to the general public, too.

In November, the city began making the documents available to the general public.

Ray's administrative assistant, Juliann M. Stevens, emailed the September agenda packet to Jennifer Gray, who was a student in my media law course and also an Owasso resident.

The city also is posting the agenda packets for "work sessions" online. See the Nov. 8 packet and the one for tomorrow (Dec. 13).

Thank you to the Owasso city officials for making the documents easily available to the public.

Kudos to the Owasso Reporter for sticking up for not just its need to know but for the public's as well.


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.

AG's Office to Public Officials: List information about impending lawsuits, claims under agenda items for executive session; Staff documents given to members of public body are not 'drafts' exempted under Open Records Act

At least the nature of an impending lawsuit or claim should be listed on the agenda item for an executive session under the Open Meeting Act's attorney-client privilege, an official with the state Attorney General's Office said Monday.

"The public has a right to know what you are going to discuss in an executive session," said Rob Hudson, first assistant attorney general.

He spoke to more than 200 government officials, news media and other members of the public at a Monday seminar in Oklahoma City. The next workshop on the state freedom of information laws will be Nov. 14 at the High Plains Technology Center in Woodward.

The seminars are free and open to the public. Registration is not required. The workshops are sponsored by Attorney General Scott Pruitt, the Oklahoma Press Association, Oklahoma Newspaper Foundation and FOI Oklahoma Inc.

The Open Meeting Act permits public bodies to conduct executive sessions to discuss

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 statute also 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))

Hudson said listing only the specific statutory authorization for the proposed executive session under the attorney-client privilege would be a violation of the Open Meeting Act.

Hudson reiterated what Pruitt told a state agency in September: The agenda item should list information such as the name of the parties in the lawsuit.

"How else would the average person know what you are talking about," Hudson explained.

If the lawsuit or claim has not been filed, then the agenda item should include "at least the nature of it," Hudson said. "More is better."

On other Open Meeting Act issues, Hudson ...

• Warned against taking "straw polls" in executive sessions;
• Said a roll-call vote isn't required by the Open Meeting Act, "but it's the smart thing to do"; and
• Warned that a majority of a public body should not take action or discuss public business by phone, email or even Facebook.

Speaking about the Open Records Act, another member of Pruitt's staff warned governments against charging more than the direct, reasonable cost of copying documents.

"This isn't supposed to be a money-making operation," said Diane Clay, communications director for the Attorney General's Office.

Clay also agreed that staff memoranda and other documents are public records when given in agenda packets to members of public bodies.

The Oklahoma Open Records Act contains no provision for "drafts." Instead, the statute permits governments to keep confidential "personal notes and personally created materials . . . prepared as an aid to memory or research leading to the adoption of a public policy or the implementation of a public project."

The exemption applies only prior to the official "taking action, including making a recommendation or issuing a report." (OKLA. STAT. tit. 51, § 24A.9)

Clay reminded officials of the statute's purpose: "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." (OKLA. STAT. tit. 51, § 24A.2)

Similarly, Hudson told officials to keep in mind the purpose of the Open Meeting Act: "Encourage and facilitate an informed citizenry’s understanding of the governmental processes and governmental problems." (OKLA. STAT. tit. 25, § 302)

He noted that the Oklahoma Supreme Court said the Open Meeting Act "is to be construed liberally in favor of the public" because the statute was "enacted for the public’s benefit." (Int’l Ass’n of Firefighters v. Thorpe, 1981 OK 95, ¶ 7)

And, Hudson pointed out, the Court of Civil Appeals held that "strict adherence to the letter of the law is required" and that "substantial compliance" is insufficient. (Matter of Order Declaring Annexation, Etc., 1981 OK CIV APP 57, ¶¶ 20-21)

Ultimately, Hudson warned officials: "The Open Meeting Act is the law. Don't break 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.

Owasso officials provide newspaper with 'draft' documents given to council members for 'working sessions' but mum on whether same records will be provided to general public prior to such meetings

Owasso city officials agreed this month to provide the Owasso Reporter with staff memoranda and other documents that form the basis for policy discussions by the City Council during its monthly "work sessions," the newspaper reported today.

But city officials haven't said if the same records will be made available to the rest of the public.

The city posts on its website supporting documentation for actions to be taken in two of its monthly meetings. But it has withheld and treated as confidential the staff memos and other documents that form the basis for council discussions and debates during monthly "work sessions," the newspaper said.

Earlier this month, City Manager Rodney Ray agreed to release those "work session" documents to the newspaper but disagreed that the Open Records Act requires him to do so. He told the newspaper:

While our staff opinion certainly disagrees with your expert’s opinion and we could, for debate purposes, quote other experts with experience in the Oklahoma Open Records Act, there seems to be no real reason to do so.

Our staff’s record, and our agenda packets have been a model for cities in the state because of their transparency and openness to citizens and media. Based on that culture and our desire to go beyond the norm (when possible) when making our governmental actions transparent I have determined that, with some obvious restrictions allowed by statute relating to litigation and personnel, we will begin including the background memoranda in the packet that is provided you for these sessions.

The newspaper had received documents for the council's September "work session" from a source. Among the documents were memos from the city’s administrative staff to the council that were labeled “Recommendation." Some documents were also labeled "draft," the newspaper said.

But the Oklahoma Open Records Act contains no provision allowing governments to keep "drafts" secret from the public.

Instead, the statute permits governments to keep confidential "personal notes and personally created materials . . . prepared as an aid to memory or research leading to the adoption of a public policy or the implementation of a public project."

The exemption applies only prior to the official "taking action, including making a recommendation or issuing a report." (OKLA. STAT. tit. 51, § 24A.9)

Just two years ago, the Oklahoma Court of Civil Appeals told Lawton officials to release a "draft" audit conducted by an independent auditor. (Int'l Union of Police Assoc. v. City of Lawton, 2009 OK CIV APP 85)

"In determining whether material is a 'record' subject to inspection under the ORA, or exempted 'personally created materials,' we 'focus on the totality of the circumstances surrounding the creation, maintenance, and use of the document,' regardless of the 'status' of a document as 'preliminary' or 'final,'" the court said. (Id. ¶ 18)

At the time the police union had requested the audit, the court noted, "City clearly possessed and controlled a preliminary draft of the requested Audit Report." (Id. ¶ 19)

"And most importantly," the court said, "it is also undisputed that City used the draft Audit Report as the basis for testimony and evidence offered at the arbitration hearing, and the fact that City withdrew its exhibits based on the draft Audit Report does not alter the fact that City used the draft Audit Report to prepare for and oppose Union's requested arbitration. (Id.)

"Given ... City's use of the draft Audit Report to prepare for and oppose Union's demanded arbitration, we hold Union was entitled to inspect and copy the draft Audit Report under the ORA," the court concluded. (Id. ¶ 20)

In reaching its decision, the court also took into account the purpose of the Open Records Act "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." (Id. ¶ 13, quoting OKLA. STAT. tit 51, § 24A.2)

Given that purpose, the Oklahoma Supreme Court said in 1986, "Disclosure is to be favored over a finding of exemption" when public bodies and courts rule on records requests. (Tulsa Tribune Co. v. Okla. Horse Racing Comm’n, 1986 OK 24, ¶ 22)

And in 2004, a state trial judge held that information packets distributed along with agendas to members of public bodies are open to the public under the Open Records Act.

“Only those portions deemed confidential pursuant to Statute may be redacted,” said Delaware County District Judge Barry Denney.

Bottom line for Owasso residents: Their city officials have no justification under the state Open Records Act for categorically denying access to documents given to council members.

In an email Oct. 14, the Owasso Reporter asked City Attorney Julie Lombardi if the work session documents would be made available to the general public, too. The newspaper said she had not replied as of its press time for today's edition.

The answer should be yes.

And the City Council members should tell the city manager and attorney to place the "work session" documents online so that the general public has access.

Oklahomans are entitled to know beforehand the details of what a public body will be considering. Otherwise, they has no opportunity to provide input to those elected or appointed officials prior to a decision being made.

If you are an Owasso resident and request the agenda packet for the council's Nov. 8 work session, please let me know what response you get. In the meantime, you can reach your councilman via email on the city website.

Let him know how important an open city government is to you.


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.

Oklahoma City School Board approves charter school agreement kept secret from public

Oklahoma City taxpayers didn't get to know the details of a charter school operating agreement for a new $11 million downtown elementary school until it was approved by the school board Monday night.

School district attorney Stephanie Mather and Board Chairperson Angela Monson had refused to release a copy to The Oklahoman on Friday even though the document had been given to school board members.

On Monday night, the board apparently approved the unprecedented agreement as it was recommended. Only then was a copy released to the public.

Mather and Monson claimed the agreement was a "working document" exempted from the Open Records Act.

But as I explained on this blog Saturday, that statute has no exemption for "working documents" or "drafts."

Instead, the statute permits governments to keep confidential "personal notes and personally created materials . . . prepared as an aid to memory or research leading to the adoption of a public policy or the implementation of a public project."

The exemption applies only prior to the official "taking action, including making a recommendation or issuing a report." (OKLA. STAT. tit. 51, § 24A.9)

In 2004, a state trial judge ruled that information packets distributed along with agendas to members of a city council were open to the public under the Open Records Act.

"The pre-meeting packets are public records and the City cannot consider the entire packet exempt from disclosure under the Oklahoma Open Records Act," said Delaware County District Judge Barry Denney. "Only those portions deemed confidential pursuant to Statute may be redacted." (Shero v. City of Grove, No. CV-2004-57 (Delaware Co. Dist. Court) (Apr. 8, 2004))

In 2009, the Oklahoma Court of Civil Appeals held that a "draft" audit conducted by an independent auditor was not exempted under the Open Records Act. (Int'l Union of Police Assoc. v. City of Lawton, 2009 OK CIV APP 85)

"In determining whether material is a 'record' subject to inspection under the ORA, or exempted 'personally created materials,' we 'focus on the totality of the circumstances surrounding the creation, maintenance, and use of the document,' regardless of the 'status' of a document as 'preliminary' or 'final,'" the court said. (Id. ¶ 18)

At the time the police union had requested the audit, the court noted, "City clearly possessed and controlled a preliminary draft of the requested Audit Report." (Id. ¶ 19)

"And most importantly," the court said, "it is also undisputed that City used the draft Audit Report as the basis for testimony and evidence offered at the arbitration hearing, and the fact that City withdrew its exhibits based on the draft Audit Report does not alter the fact that City used the draft Audit Report to prepare for and oppose Union's requested arbitration. (Id.)

"Given ... City's use of the draft Audit Report to prepare for and oppose Union's demanded arbitration, we hold Union was entitled to inspect and copy the draft Audit Report under the ORA," the court concluded. (Id. ¶ 20)

If Lawton city officials couldn't claim a "draft" exemption for an outside audit, then Oklahoma City school officials certainly weren't entitled to hide a document sent to the school board for a vote of approval.


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.

OKC public school officials refuse to release charter school agreement prior to school board vote Monday night

Oklahoma City school officials kept secret Friday the details of a proposed operating agreement between the district and a charter school group for a new $11 million downtown elementary school paid for with tax dollars.

School board members have the agreement in hand, but district officials refused to share it with the public until after the board's scheduled vote Monday night.

"It's a working paper going to be brought before the board for possible discussion and action," the district's legal counsel told The Oklahoman on Friday.

"We understand under the Open Records Act that until a document is finalized that working papers ... are not open records," Stephanie Mather told the newspaper. "They are not even records yet."

Wrong.

The Oklahoma Open Records Act contains no provision for "working documents" or "drafts."

Instead, the statute permits governments to keep confidential "personal notes and personally created materials . . . prepared as an aid to memory or research leading to the adoption of a public policy or the implementation of a public project."

The exemption applies only prior to the official "taking action, including making a recommendation or issuing a report." (OKLA. STAT. tit. 51, § 24A.9)

Just two years ago, the Oklahoma Court of Civil Appeals told Lawton officials to release a "draft" audit conducted by an independent auditor. (Int'l Union of Police Assoc. v. City of Lawton, 2009 OK CIV APP 85)

"In determining whether material is a 'record' subject to inspection under the ORA, or exempted 'personally created materials,' we 'focus on the totality of the circumstances surrounding the creation, maintenance, and use of the document,' regardless of the 'status' of a document as 'preliminary' or 'final,'" the court said. (Id. ¶ 18)

At the time the police union had requested the audit, the court noted, "City clearly possessed and controlled a preliminary draft of the requested Audit Report." (Id. ¶ 19)

"And most importantly," the court said, "it is also undisputed that City used the draft Audit Report as the basis for testimony and evidence offered at the arbitration hearing, and the fact that City withdrew its exhibits based on the draft Audit Report does not alter the fact that City used the draft Audit Report to prepare for and oppose Union's requested arbitration. (Id.)

"Given ... City's use of the draft Audit Report to prepare for and oppose Union's demanded arbitration, we hold Union was entitled to inspect and copy the draft Audit Report under the ORA," the court concluded. (Id. ¶ 20)

In Oklahoma City, the agreement between the public school district and the group of downtown business owners has been given to the eight school board members for their consideration and possible action during their regular meeting Monday.

Using the court's reasoning, that agreement should be open to the public now, not after the school board votes on it.

If Lawton officials couldn't claim a "draft" exemption for an outside audit, then Oklahoma City school officials certainly can't use that exemption to hide a document sent to the school board for a vote of approval.

In coming to its 2009 decision, the court also took into account the purpose of the Open Records Act "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." (Id. ¶ 13, quoting OKLA. STAT. tit 51, § 24A.2)

Given that purpose, "disclosure is to be favored over a finding of exemption" when public bodies and courts rule on records requests, the Oklahoma Supreme Court said in 1986. (Tulsa Tribune Co. v. Okla. Horse Racing Comm’n, 1986 OK 24, ¶ 22)

But School Board Chairperson Angela Monson refused to give a copy of the agreement to The Oklahoman, calling it a working document.

Yet, Monson told the newspaper: "This is not a secret. This is not a secret document."

Wrong. It is a secret document if you don't let the public read until after you've voted on it.

Monson told the newspaper that the agreement itself expressly states that the two groups make any public announcements jointly.

Fine. The school board and charter school group may make all the joint announcements they want.

But the school district may not use that as a justification for hiding documents from Oklahoma City taxpayers. The school board's contracts and policies may not trump our state's Open Records Act. A school district may not simply write out of existence the public's right to know.

Given the reasoning by Monson and Mather, no document being considered by a public body would be available to the taxpayers until after the vote.

Providing access only to the agreement as approved by the school board is not enough. As the Court of Civil Appeals noted in 2009, the "draft" of a document "may or may not be the same as the final" version. (Id. ¶ 10)

Oklahomans are entitled to know beforehand the details of what a government body will be considering. Otherwise, the public has no opportunity to provide input to those elected officials prior to the decision being made.

Violating the Open Records Act is a misdemeanor punishable by up to one year in jail and a $500 fine.

The school district's refusal to provide the agreement is such an outrageous, willful violation of the Open Records Act as to warrant criminal prosecution.

And Mather's "advice" so clearly contradicts the Open Records law that it warrants an Oklahoma Bar Association complaint being filed against her.

Otherwise, these government officials will continue to flout our state laws intended to ensure they operate transparently.


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.