skip to main |
skip to sidebar
A Delaware senator will tell Oklahoma lawmakers on Thursday how her General Assembly conducts public business while complying with that state's open government laws.
Democrat Karen E. Peterson was instrumental in ending the Delaware General Assembly's self-imposed exemption from that state's open meeting and records laws in 2009.
An Oklahoma House committee is studying legislation to do the same here.
The House Government Modernization Committee, chaired by state Rep. Jason Murphey, will meet at 9 a.m. in Room 432A of the state Capitol.
Audio of the hearing will be streamed live on the House website and remain posted.
All documents and presentations used during the hearing will be posted. As will the interim study report.
Other speakers are Peter J. Rudy of Oklahoma Watchdog and myself.
The interim study, titled "Enhancing Transparency of the Legislative Process," will "focus on the positive effects of recent legislative rule changes and analyze the possible application of open records and meetings laws to legislative proceedings."
Murphey, a Guthrie Republican, requested the study after his bill requiring the Legislature to abide by the Open Meeting and Open Records laws died in a House committee during the last legislative session.
Murphey proposed adding the Legislature to the definition of public body under the Open Records and Open Meeting acts while removing its exemption from the statutes.
But HB 1085 wasn't taken up by the House Judiciary Committee chaired by Rep. Fred Jordan, R-Jenks.
In Delaware, political observers credited removing the General Assembly's overall FOI exemption with making the budget process more transparent and with cutting down on legislative shenanigans in the waning hours of the session.
By contrast in Oklahoma, a state trial judge last week indicated that "unseemly actions and even unethical behavior" are "business as usual" in the state Legislature.
In ruling that prosecutors have sufficient evidence against state Rep. Randy Terrill and former Sen. Debbe Leftwich for a bribery trial, Oklahoma County Special Judge Stephen Alcorn said,
Judges tend to be a bit cynical and tend to be realistic, but the court admits to being disappointed in what has repeatedly been described as business as usual at the Capitol.
Oklahoma legislative leaders should pay heed to a recent study that found strong state open government laws reduce corruption levels and increase the probability that corrupt acts are detected.
Sunshine goes a long way as disinfectant.
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.
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.
A Washington County judge sided with the Bartlesville Redevelopment Authority on Friday, dismissing a lawsuit alleging an Open Meeting Act violation by the public body.
In a 10-page ruling, Associate District Judge Russell Vaclaw said the plaintiffs, Joel Rabin and Sharon Hurst, made no claims that "their personal, contractual, or proprietary interests were affected by any decision by the BRTA in an executive session. Nor is there any specific claim of any specific class that they claim to represent."
Plaintiffs suing under the Open Meeting Act must demonstrate they "were directly harmed by the wrongful actions of a government in violation of the OMA," Vaclaw said. The statute "does not appear to allow for an avenue for a complaining party to simply complain that the government violated the OMA without showing any other harm to the individual."
The remedy for Oklahomans "who have no concern but that their government is working in the dark ... is a criminal prosecution for any willful violations," Vaclaw said. "If there was wrongdoing, charges could be filed or the matter may be presented to a grand jury.
"If the legislature intended to allow for a private remedy, then it is their responsibility to change the law, not this Court," he said. "To date, the legislature has not changed the remedies available under the OMA."
Rabin and Sharon alleged that the BRTA purposefully misled the public about the purpose of its Aug. 11, 2010, executive session.
The agenda for the meeting said the closed-door session would be to "Discuss Pending and/or Impending Investigations, Claims or Actions Affecting the BRTA." However, the agenda did not identify the specific item of business to be discussed in the executive session.
Vaclaw approved of the BRTA having used "impending" on the agenda. He noted that a 2005 attorney general opinion on the meaning of "pending" equated it with "impending." (2005 OK AG 29, ¶ 9)
In deciding that Hurst and Rabin had no right to sue, Vaclaw relied upon the state Supreme Court's three-part test in Holbert v. Echeverria, 1987 OK 99, ¶ 8, for determining if a private cause of action can be inferred from a regulatory statute:
- The plaintiff is one of the class for whose special benefit the statute was enacted;
- There is some legislative intent, explicit or implicit, suggesting that the legislature wanted to create a private remedy; and
- Implying a remedy would be consistent with the underlying purposes of the legislative scheme.
Applying the test, the court in Holbert said private individuals had no right to sue for a violation of the state's Consumer Protection Act. The home buyers were not part of a class of persons for whose "especial benefit" the statute was enacted, the court said.
It explained that adopting "a broad construction for establishing a class would render the first factor ... virtually meaningless. When a statute is created for the benefit of the public at large, no special class is created in its wake simply because a remedy for injured persons is fashioned." (Id. ¶ 9) The court reasoned:
It is difficult to think of a term broader or more general than "consumer." Every individual, regardless of one's occupation, does in some respect occupy on a daily basis the status of consumer. Because everybody stands included, the term "consumer" does not describe any special class, but rather the public at large. Inasmuch as the Act is for the benefit of the general public, no special class is established for whose especial benefit it was created. (Id. ¶ 10)
Vaclaw noted that after the Holbert ruling, state legislators amended the Oklahoma Consumer Protection Act "to expressly provide for a private right of action."
Attorneys for Rabin and Hurst had pointed to a string of Oklahoma appellate court decisions involving plaintiffs suing public bodies over alleged Open Meeting Act violations.
But Vaclaw said that in all those cases, the plaintiffs "had some specific statutory, contractual or proprietary interest which allowed them to seek specific relief in those particular situations."
He agreed that the Open Meeting Act "exists for the benefit of the general public."
"But that does not grant a right to every individual citizen to sue the government body in civil court every time they believe the government violated the OMA," he said.
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's Open Records Act doesn't require state universities and colleges to keep a public log of reported crimes.
But a federal law does.
The Clery Act requires public and private post-secondary schools that receive federal funding and maintain a police or security department to keep a daily crime log that is open to public inspection and is readily understandable. (34 CFR 668.46(f)) (20 USC §1092(f)(4)(A)(B))
The statute also imposes a number of important conditions on those crime logs that differ from the Open Records Act's requirements for such records, including:
- Crimes must be added to the log within two business days of their initial report to the campus police or the campus security department.
- This time requirement also covers any addition to an entry or change in the disposition of a complaint. For example, federal education officials note, if the disposition of a crime is "pending" and an arrest is made later, the school has two business days to update the disposition on the original entry.
- Schools aren’t required to update dispositions for crimes more than 60 days old.
- A business day is defined Monday through Friday, except for days when the school is closed.
- The only exceptions to this rule are if the disclosure is prohibited by law or would jeopardize the confidentiality of the victim.
- The log is required to include the nature, date (occurred and reported), time and general location of each crime, and its disposition if known.
- The description of the location must mean something to the campus community.
- But the location must not lead to identification of the victim.
- Victims' names must be redacted. This requirement supersedes the state Open Records Act, which has no such provision.
- Schools may temporarily withhold information only if there is clear and convincing evidence that the release of information would:
- Jeopardize an ongoing investigation;
- Jeopardize the safety of an individual;
- Cause a suspect to flee or evade detection; or
- Result in the destruction of evidence.
- The school may withhold only the information that could cause the adverse effect.
- That information must be disclosed once the adverse effect is no longer likely.
- The person deciding to withhold the information should document the reason.
- The crime log for the most-recent 60 days must be open to public inspection, upon request, during normal business hours.
- Schools may not require a written request.
- Anyone may have access to the log, including media not associated with the school.
- Logs older than 60 days must be made available for inspection within two business days of the request.
ADDITIONAL SOURCES:
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications
Oklahomans have until Friday to tell the state Supreme Court what they think of proposed rules that would ban personal information from court records.
Here is FOI Oklahoma's letter to the court:
Freedom of Information Oklahoma Inc. asks the Oklahoma Supreme Court to reconsider its proposed rules that would remove personal information from criminal and civil court records.
FOI Oklahoma is a statewide organization founded in 1990 to educate the public on rights of the First Amendment and to promote openness in government. It has a broad based membership including journalists, attorneys, librarians and others interested in preserving the free flow of information.
The organization believes the court’s proposed rules are over broad and would negatively impact basic information that every citizen of the state should be able to access easily.
Especially chilling is the proposal to redact personal identification information. The public would lose its ability to track defendants in criminal and civil cases.
Although the court has said it does not want to limit access to court documents; that appears to be exactly what the proposed rules would do.
It is in the best interest of the public to have as much information available as possible. Erasing this information as proposed by the court would be a step back, not a step forward.
FOI Oklahoma endorses former Attorney General Drew Edmondson’s statement opposing any rule or legislation that limits the public’s right to know. Edmondson said that as a former prosecutor, having access to identification such as dates of birth on criminal court records is important.
FOI Oklahoma applauds the court’s work in making court records available electronically.
However, the organization feels removing personal identifiers from these records negates any positive aspect of electronic records.
FOI Oklahoma hopes the court will recognize the public’s right to full access of this information far outweighs all other concerns.
Sincerely,
Bryan Dean, President, FOI Oklahoma
Staff Writer, The Oklahoman
Owasso officials say they won't identify a police officer accused of using excessive force or release lapel camera video of the incident until the investigation is completed, the Owasso Reporter said Thursday.
The 27-year-old suspect has been paid $1,500 to settle the June 30 incident, City Attorney Julie Lombardi confirmed for the newspaper.
The officer had been placed on paid leave during the investigation, Police Chief Dan Yancey told the newspaper.
A 2009 attorney general opinion permits public agencies to keep secret the names of employees placed on paid administrative leave if, under the agency’s personnel policies, that action doesn’t constitute "a 'final' or 'disciplinary' action, nor a 'final disciplinary action resulting in loss of pay, suspension, demotion, or termination.'" (2009 OK AG 33, ¶ 29)
But once the investigation is complete and a final disciplinary action occurs, "the record(s) indicating that action must be available for public inspection and copying," then-Attorney General Drew Edmondson said.
The Oklahoma Open Records Act makes public "any final disciplinary action resulting in loss of pay, suspension, demotion of position, or termination." (OKLA. STAT. tit. 51, § 24.A(7))
Edmondson noted that the Open Records Act does not mention "administrative leave with pay."
That oversight should be rectified by state legislators next year.
In Owasso, the police department released the incident report, which identifies three officers as having been directly involved in arresting the 27-year-old suspect.
The Owasso Reporter argued that city officials had a responsibility to differentiate between officers under investigation and those who are not.
The newspaper said Yancy indicated that images of the use of force being investigated were captured on at least one of the department’s new lapel cameras that patrol officers wear.
A relative of the suspect complained to the newspaper about the circumstances under which the $1,500 settlement was reached.
Representatives for the city approached the suspect while he was locked up in the Tulsa County Jail on Oct. 9 in connection with a 2010 misdemeanor case that prosecutors are seeking to have a deferred sentence arrangement set aside and punishment imposed, the newspaper was told.
The suspect was without benefit of a lawyer when city officials offered him money to pay court costs and medical expenses in return for signing a release not to sue the city over excessive force used on June 30, the newspaper was told.
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 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.
