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.

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

State higher education board agenda doesn't identify purpose of executive session in apparent violation of Open Meeting Act

Oklahoma higher education regents last week met behind closed doors with their attorney, but their staff refused to explain to a reporter the specific item of public business being discussed.

Under the Open Meeting Act, the agenda item for an executive session must “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 the specific statutory authorization for the executive session. (OKLA. STAT. tit. 25, § 311(B)(2)(a-c))

However, the agenda for the Oklahoma State Regents for Higher Education special meeting on Wednesday included only the statutory authorization, stating:

Possible vote to go into executive session pursuant to Title 25, Oklahoma Statutes, Section 307(B)(4), for confidential communications between a public body and its attorneys concerning pending investigations, claims or actions.
Return to open session.

A 1997 attorney general opinion said public bodies have an "absolute" duty under the Open Meeting Act to specify the purpose of an executive session beyond simply stating the statutory authorization. (1997 OK AG 61)

The opinion dealt with whether a public body had to reveal the specific purpose of an executive session under the personnel exemption. But Attorney General Drew Edmondson's answer was not dependent upon the personnel exemption. Rather, his reasoning was based on the statutory requirements applying to all the exemptions.

To meet in executive session, Edmondson said, the public body must the criteria set forth in the statute:

1. All agendas required pursuant to the provisions of this section shall identify all items of business to be transacted by a public body at a meeting, including, but not limited to, any proposed executive session for the purpose of engaging in deliberations or rendering a final or intermediate decision in an individual proceeding prescribed by the Administrative Procedures Act.

2. If a public body proposes to conduct an executive session, the agenda shall:

a. contain sufficient information for the public to ascertain that an executive session will be proposed;

b. identify the items of business and purposes of the executive session; and

c. state specifically the provision of Section 307 of this title authorizing the executive session.

The bold italics were Edmondson's emphasis.

"Whether a matter pertains specifically to an executive session or not, the Oklahoma Supreme Court has stated that the Act requires that agendas must be worded in plain language, directly stating the purpose of the executive session," he said. (¶ 3.)

Relying upon appellate court interpretations of the statutory requirements, Edmondson said, "It is quite evident that the word 'identify,' as used in Section 311(B), connotes a requirement by the Legislature that public bodies must provide the public with enough information on its agendas to allow the public to know the nature of an executive session discussion."

In the instance of a personnel issue, the AG agreed that placing the person's name or unique title on the agenda would lessen the confidentiality. Still, he said:

We note that for a public body to convene in executive session to discuss employment matters is not mandatory; it is simply 'permitted.' While on the other hand a public body's duty to specify on the agenda all matters to be undertaken in a meeting is absolute. (Id. ¶ 4)

Despite Edmondson's binding opinion and the clear statutory requirement, the higher education board's staff refused to tell a reporter what the state regents were discussing behind closed doors.

The nine state regents for higher education are:

• Chair Joseph L. Parker Jr., Businessman, Tulsa;
• Vice Chair Julie Carson, Attorney, Claremore;
• Secretary Marlin "Ike" Glass Jr., Businessman, Newkirk;
• Assistant Secretary James D. "Jimmy" Harrel, Banker, Leedey;
• Don Davis, Attorney, Lawton;
• John Massey, Banker, Durant;
• William Stuart Price, Business Owner, Tulsa;
• Michael C. Turpen, Attorney, Oklahoma City;
• Ronald H. White, M.D., Internal Medicine, Oklahoma City;

Unfortunately, the public doesn't elect them. But we do elect the governor, who appoints them to their nine-year terms.

Gov.-Elect Mary Fallin last spring said she expects her appointees to public bodies to abide by the Open Meeting and Open Records laws. She also signed FOI Oklahoma's Open Government Pledge in which she promised, "I and the public bodies that I am elected to govern will comply with not only the letter but also the spirit of Oklahoma’s Open Meeting and Open Records laws."

Let's hope that early in her governorship, Fallin will tell all appointees to state boards to either follow our state's open government laws or resign and make way for Oklahomans who will.


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

State medical examiner refuses to release autopsy report in slaying of OKC mother

The Oklahoma Medical Examiner's Office won't release the autopsy report in the slaying of an Oklahoma City mother, KOCO reported Thursday.

"It is my belief that the premature release of further details may interfere with the ongoing investigation and subsequent prosecution," Interim Chief Medical Examiner Andrew Sibley told the station.

But Oklahoma County District Attorney David Prater last week seemed to contradict that claim, telling KOCO that the public has the right to know the information.

On Thursday, Sibley refused to cite an statutory provision exempting the autopsy.

But if Sibley and the ME's Office can't cite a clearly applicable exemption, the autopsy is open under Oklahoma's Open Records Act.

As the Oklahoma Supreme Court said in 2003, “The public body urging an exemption has the burden to establish the applicability of such exemption.” (Citizens Against Taxpayer Abuse, Inc. v. City of Oklahoma City, 2003 OK 65, ¶ 12)

This, of course, concerns the public's right to know the information. What about the public's need to know what is in an autopsy report?

This blog pointed out last April that the press and public have used autopsy reports elsewhere to uncover incompetency and corruption by police, medical examiners and coroners.

Even so this past spring, state legislators for a second consecutive session debated limiting what the public could know from autopsy files involving homicides and cases in which the manner of death is either pending or unknown.

The bill was withdrawn in May because of stiff opposition on the House floor.

Among those critical of the bill was state Rep. Lucky Lamons, a former Tulsa police officer. He said autopsy records should remain open, especially considering the problems plaguing the state Medical Examiner's Office.

Lamons pointed out that Tulsa police still solved homicides even though it never asked the medical examiner to withhold information.

KOCO said it will continue pushing for the autopsy report.


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

State Board of Education meets in questionable executive session

The state Board of Education met in executive session Thursday to investigate its “legal powers and duties” to implement a state law that some school districts are refusing to comply with, the Tulsa World reported today.

The meeting agenda cited a state Open Meeting Act exemption permitting executive sessions for

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))

When Kay Harley, the board’s attorney, was asked what pending investigation, claim or action the board discussed during the closed-door session, she said it was to have "a confidential conversation with their attorney about the implementation of the Lindsey Nicole Henry Scholarships," which she said was an investigation, the Tulsa World reported.

The newspaper added:

When asked who was being investigated, Harley said, "We are investigating our legal powers and duties."

Based on that explanation, the board violated the Open Meeting Act. A public body determining its “legal powers and duties” does not constitute the kind of investigation covered by the exemption. If it did, then every discussion about research into an issue would constitute an investigation. Say good-bye to open government.

And how would a public discussion "seriously impair" the board's actual authority to implement the statute?

Just because an attorney was involved in the discussion did not automatically justify an executive session. Not every discussion between a public body and its attorney – even about a lawsuit – is exempted from public scrutiny, state Attorney General Drew Edmondson said in 2005.

Rather, such issues may be discussed in executive session only if the public body and its attorney determine that disclosure will ‘seriously impair’ the body’s ability to deal with the issues in the public interest. This limitation on the basis for an executive session . . . means a public body may not close a meeting merely to get general legal advice from its attorney that does not meet the standard of serious impairment and injury to the public interest. (2005 OK AG 29, ¶ 11)

In other words, the exemption for a confidential discussion between a public body and its attorney does not exist so that public bodies can do an end run around the Open Meeting Act. It was not intended to allow public bodies to discuss in secret what they should be discussing in front of the public.

Unfortunately, we don’t vote for the members of the state Board of Education with the exception of the state school superintendent of public instruction. But we do vote for the governor, who appoints the other six members of the board.

Regardless of whom we hire on Nov. 2 as governor, let’s hope she will demand her appointees abide by the letter and the spirit of our Open Meeting law or replace them with those who will.

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

Cleveland Co. DA refuses to disclose names of 20 people arrested on drug complaints a week earlier

Cleveland County District Attorney Greg Mashburn says he would be endangering the lives of people arrested Dec. 11 on drug complaints if he were to disclose their names to the public, The Norman Transcript reported today.

Mashburn told the newspaper he could not release the names of those arrested because some might not be charged in District Court.

"I will be putting lives in danger," he said.

The article doesn't provide Mashburn's reasoning for that claim.

The Oklahoma Open Records Act, however, explicitly requires law enforcement agencies to disclose the information.

"A. Law enforcement agencies shall make available for public inspection, if kept, the following records:

1. An arrestee description, including the name, date of birth, address, race, sex, physical description, and occupation of the arrestee;

2. Facts concerning the arrest, including the cause of arrest and the name of the arresting officer;

3. A chronological list of all incidents, including initial offense report information showing the offense, date, time, general location, officer, and a brief summary of what occurred;

8. Jail registers, including jail blotter data or jail booking information recorded on persons at the time of incarceration showing the name of each prisoner with the date and cause of commitment, the authority committing the prisoner, whether committed for a criminal offense, a description of the prisoner, and the date or manner of discharge or escape of the prisoner." (Okla. Stat. tit. 51, § 24A.8(A))

The newspaper said 10 people were believed to have been booked into the McClain County Jail and seven into the Cleveland County Detention Center. The whereabouts of the other three was unclear, the newspaper said.

Disclosing the names of people arrested serves to protect them. As several FOI Oklahoma members have noted regarding the story, we don't live in a state in which local authorities may arrest and incarcerate people in secret.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism