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The state Department of Human Services took half a year to provide the Tulsa World with information about lawsuit settlements related to child abuse and neglect, the newspaper noted today.
The newspaper made three requests March 8, each related to records of legal costs and lawsuit settlements.
DHS did not provide information on two requests until the newspaper told officials it was preparing to publish a story about the department's failure to comply with the records request.
The records revealed that DHS has settled 24 lawsuits related to child abuse and neglect since 2005 for more than $3.4 million - $1.4 million from the agency and $2 million from insurance, the Tulsa World reported Sunday.
The amount paid in a 2010 case is being kept secret from the public because the settlement was sealed by a district judge.
DHS officials told the Tulsa World that the records request took six months to answer because legal staff had to search past files in storage to cull the information requested and because cases are not separated by category such as child welfare.
DHS officials apparently didn't already know how much the department has spent on outside legal counsel and has paid to settle child abuse-related lawsuits since 2005.
Meaning the department apparently has no tracking system for legal settlements and attorney costs.
That raises doubts about how efficiently and how effectively DHS officials are handling the public's money.
Moreover, this kind of scattered record-keeping is a breeding ground for incompetence and corruption.
Also questionable is whether DHS officials complied with the state Open Records Act by taking six months to respond to the records request.
Under the Open Records Act, "A public body must provide prompt, reasonable access to its records...." (OKLA. STAT. tit. 51, § 24A.5(5))
A 1999 attorney general opinion stated succinctly that "prompt, reasonable access" generally means "only the time required to locate and compile" the public records. (1999 OK AG 58, ¶ 15)
DHS officials told the Tulsa World that much of the legal staff's resources and time were being used to defend the class-action lawsuit. So why were records made available only after the newspaper threatened to publicize how long DHS was taking to provide the information?
Oklahoma public agencies and officials have a "duty" to provide public records to the public. Then-Attorney General Drew Edmondson said:
The purpose of the 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.' To fulfill this purpose the Act imposes a duty on a public body to 'provide prompt, reasonable access to its records' and make a person available to release records during the public body's regular business hours. (2005 OK AG 3, ¶ 4)
That purpose is defeated if government officials can deny access by delaying access.
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.
A state agency's agenda was too vague under the Open Meeting Act when it listed an executive session "for the purpose of considering a settlement of a lawsuit(s)," Attorney General Scott Pruitt reportedly said in an informal opinion this week.
The meeting agenda should have listed the name of the parties in the lawsuit and a brief description of the litigation, Pruitt reportedly told the Commissioners of the Land Office.
This is important because other public bodies in the state, including the Oklahoma State Regents for Higher Education, Bartlesville Redevelopment Trust Authority, and Glenpool and Chickasha city councils, have been deliberately vague when conducting closed-door sessions with their attorneys.
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))
But 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))
However, rather than stating the specific investigation, claim or action to be discussed, these public bodies have provided only the specific statutory authorization for the proposed executive session.
Their attorneys contend that the Open Meeting Act exception is subject to the statute providing for the attorney-client privilege. In other words, these government lawyers contend attorney-client privilege trumps the agenda requirements under the Open Meeting Act.
In contrast, I have contended that the specific investigation, claim or action must be identified on the agenda as required by the Open Meeting Act. I am not alone in this understanding of the statute’s requirement.
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 then-Stillwater attorney Doug Wilson. (He is now an assistant district attorney for Tulsa County.)
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, Wilson 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))
Another attorney with experience in open government cases said identifying 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.
(For the complete explanation, read Glenpool City Council agenda omits specific item of business to be discussed with its attorney behind closed doors.)
In June, the district attorney for the Oklahoma Panhandle told a hospital board that public bodies must identify the nature of the claim or investigation on the agenda for an executive session under the Open Meeting Act's attorney-client privilege exemption.
"It is my opinion that the agenda item to consider an executive session must identify either the position or the individual who is the subject of the discussion or the nature of the investigation or claim to be discussed in the agenda that would apprise the public of the matters to be addressed in the executive session," said James M. Boring, district attorney for Cimarron, Texas, Beaver and Harper counties.
Attorney General Scott Pruitt seems to agree.
The Commissioners of the Land Office Sept. 8 agenda item listed simply "for the purpose of considering a settlement of a lawsuit(s)" when commissioners went behind closed doors to discuss a nearly $1.4 million settlement of a royalty case.
A former attorney for the public body objected to the agenda item as insufficient under the Open Meeting Act, reported the Tulsa World.
(The commissioners are Gov. Mary Fallin, Lt. Gov. Todd Lamb, State Auditor Gary Jones, State schools Superintendent Janet Barresi and Agriculture Secretary Jim Reese.)
Fallin's office asked Pruitt for an informal opinion and put the settlement on hold, the Tulsa World reported.
On Friday, Judy Copeland, Fallin's general counsel, told the newspaper:
The Attorney General's Office reviewed the agenda as the governor requested and determined that the agenda item did not sufficiently describe the matter. As a result, the CLO will place the item back on the agenda at its next regularly scheduled meeting so that action can be taken.
Pruitt's advice apparently will improve the commission's future agendas as well.
"In the future, we will list all parties of pending litigation," said Terri Watkins, a spokeswoman for the agency.
Other public bodies should take note of Pruitt's opinion and do so 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.
Commissioners overseeing the state Department of Human Services apparently won't face charges of violating the Open Meeting Act.
An assistant district attorney for Oklahoma County told the Tulsa World that the DHS response to allegations of meeting violations will be taken under advisement.
"I don't think filing charges will be necessary to accomplish our goal, but no firm decision has been made," said Scott Rowland. "I think with each passing meeting, we will see how things are being worked out."
Rowland told the newspaper that prosecutors met with DHS officials last week for the first time and discussed how the commission's committees are being used.
The soon-to-be-former chairman of the Oklahoma Commission for Human Services recently testified that the committees are limited to four members to avoid the Open Meeting Act's requirements for public notices and agendas, The Oklahoman reported Sunday.
Like some other public bodies in the state, the commission exploits a loophole created by the state Supreme Court to avoid committee meetings being open to taxpayers even though the Open Meeting Act definition of public body includes "all committees or subcommittees of any public body."
However, as I've pointed out on this blog several times, nothing in the Open Meeting Act prohibits these committee meetings from being open to the public. Rowland echoed that point in the Tulsa World.
"It would remove any room for argument if they would just post an agenda and open it up," Rowland said.
Sure would.
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.
The statewide commission overseeing the state Department of Human Services did not end its June meeting without publicly voting to adjourn, the agency's legal counsel said Friday in a four-page response to Oklahoma County District Attorney David Prater.
But "to avoid future misunderstandings, Commissioners will take their seats while casting these votes," Charles Waters wrote.
Waters defended the commission's committees, which the chairman recently admitted in sworn testimony are limited to four members to avoid the Open Meeting Act's requirements.
However, Waters did agree that the commission's agenda items should be more specific when major policy changes are contemplated.
In August, Prater asked the commission for a written reply explaining why not reconvening after executive sessions and committees meeting without public notices or agendas were not willful violations of the Open Meeting Act.
Oklahoma Watchdog obtained a copy of the DHS response though an Open Records Act request.
Oklahoma Watchdog Editor Peter J. Rudy took issue Tuesday with DHS Communications Coordinator Sheree Powell's statement that "a member of the public remained in the otherwise empty room after the June 14th executive session and mistakenly thought votes were not taken."
"I was that member of the public and want to state for the record that I know what I saw, and there was no mistaking it," wrote Rudy.
Could votes have been taken after coming out of executive session? It’s possible and, according to the public record, that’s what happened. However, the votes were NOT 'publicly cast and recorded' as required by the Oklahoma Open Meeting Act. A clerk going up to each member and asking them how they vote on something as everyone is packing up and leaving does not appear to me to meet the definition of 'publicly cast.' And since commissioners have changed the way they end their meetings, I believe it’s a tacit admission that the previous procedure was not the proper one.
Complaints by Rudy and DHS Commissioner Steven Dow prompted Prater's investigation.
In the response to Prater, Waters said, "We do not believe there have been any violations of the Open Meeting Act and certainly no blatant disregard of law."
Waters said the committees don't violate the Open Meeting Act because they "have no final decision making authority; do not eliminate matters from future consideration by the Commission but simply obtain information and make recommendations to the Commission without exercising actual or de facto decision making."
The Oklahoman reported Sunday that in a deposition for a class-action lawsuit, Commission Chairman Richard L. DeVaughn said sidestepping the Open Meeting Act wasn't the only reason but it was "a good reason" for limiting the membership of committees.
(For a detailed explanation of how public bodies try to exploit a loophole in the Open Meeting Act, read how the OU Regents use a strict compliance with the letter of the statute to defeat its purpose.)
Waters' explanation ignores statutory language -- added in 1977 -- that includes "all committees or subcommittees of any public body" in the definition of public body. (OKLA. STAT. tit. 25, § 304(1))
And, of course, nothing in the statute prohibits the commissioners on these committees from following the Open Meeting Act by posting notices and agendas. They don't because they don't want the public to know what they're doing.
But that attitude might be on the way out. Gov. Mary Fallin last week replaced DeVaughn as chairman when she named two new members to the commission.
DeVaughn, an Enid dentist, was appointed chairman by then-Gov. Brad Henry in December 2004. His nine-year term on the commission ends in August.
One complaint by Dow was that when the commission approved the DHS budget in June, it also increased co-payments made by clients who receive child-care benefits and reduced the income eligibility. No mention of the major policy change was made on the meeting agenda.
DeVaughn told the Tulsa World that the commission would add more detail to its agendas if told to by a court or state Attorney General Scott Pruitt.
Prater has done just that, warning the commission not to use "future agenda items which are phrased very vaguely and have imbedded within them massive policy changes," saying they "may indeed constitute violations in light of the expressions of concern contained within this letter."
Waters agreed that the commission's June 14 agenda "could easily have been more specific especially when major policy actions are contemplated."
Dow had also complained "there is also no official adjournment of any meeting of the Commission when returned to open session after having conducted an executive session."
Dow said members have sometimes "simply left the meeting after executive session" and the clerk/secretary telephoned them to get their vote on adjournment.
However, Waters said the commission secretary has never polled commissioners "by telephone or other means to obtain a vote."
As Rudy noted Tuesday, now it's up to Prater to decide if the DHS "explanation is sufficient or if any charges will be filed in the case."
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.
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.
The Claremore Police Department's dash-cam recordings are not public records under the state Open Records Act, a Rogers County judge ruled Tuesday.
But requesters may ask a court to find that the release of a particular recording would serve a public interest that outweighs the reason for denial, noted Associate District Judge Sheila A. Condren.
Two attorneys who specialize in drunken-driving cases -- Stephen G. Fabian Jr. of Oklahoma City and Josh D. Lee of Ward & Lee -- sued Claremore and Catoosa in June for access to their police departments' dash-cam recordings.
Condren's ruling in favor of Claremore was a surprise given that the city of Catoosa in June agreed to release its police department's audio and video recordings and because local law enforcement agencies typically release such recordings.
For example, the Oklahoma County sheriff last week released the dash cam video of a head-on collision in which a deputy was injured.
Condren's ruling contradicted an Oklahoma County district judge's 2005 ruling that favored Fabian by barring "the Oklahoma Highway Patrol from keeping videotapes of traffic arrests secret." (That ruling spurred legislators that year into exempting all Department of Public Safety dash-cam audio and video recordings.)
Her ruling also seems at odds with a 2004 state Supreme Court ruling also in favor of Fabian. The court ruled that DPS recordings of administrative hearings concerning revocation of drivers' licenses were public under the Open Records Act. (Fabian & Assoc., P.C., v. State ex. rel. Dept. of Public Safety, 2004 OK 67)
The Supreme Court held that the requested tapes contained facts concerning arrests and therefore were open under the Open Records Act. (Id. ¶ 14)
The statute makes public the "facts concerning the arrest, including the cause of arrest and the name of the arresting officer." (OKLA. STAT. tit. 51, § 24A.8(2))
"By this statute," the Supreme Court said, "DPS is required to make available for public inspection facts concerning the arrest. Fabian asserts that the requested tapes contain the facts concerning the arrest and therefore § 24A.8(A)(2) requires the tapes to be open for public inspection. We agree."
The Claremore police department's dash-cam recordings certainly contain facts concerning arrests.
Even Condren noted that the Claremore Police Department's dash-cam audio and video was "the only recording possessed by CPD of Plaintiff's client regarding the DUI stop and arrest."
But Condren said the Supreme Court case dealt "with what amounts to a transcript of a public hearing."
"In contrast, the 'dash cam' recording is a direct piece of evidence," she said. "As a result, the Court finds the Fabian case distinguishable from the facts presented at bar, and finds the 'dash cam' recording is not a public record pursuant to Title 51 O.S. § 24A.8 which is subject to public inspection."
The Supreme Court had interpreted the Open Records Act as requiring certain information in the hands of law enforcement to be made public.
Condren, however, read the statute as listing documents that must be public. And dash-cam recordings are not specified. (See OKLA. STAT. tit. 51, § 24A.8(1-8))
Condren's ruling is a blow to the public's need to know in Oklahoma. Other local law enforcement agencies are likely to cite it as a reason for not releasing their dash-cam videos.
But Fabian and Lee aren't likely to give up in this case, so we can hope that an appellate court will put dash-cam recordings firmly back in the realm of public information.
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.
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":
- "The order is too broad. Read literally it applies even to the names of telephone companies and other information already in the public domain."
- "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."
- "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."
- "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.
