Norman mayoral candidate promises to comply with open government laws

The chairman of Norman's Board of Adjustment has signed FOI Oklahoma's Open Government Pledge as a candidate for mayor.
 
Thomas E. Sherman promised to comply with the letter and spirit of Oklahoma's open government laws.
 
Sherman also pledged to "support at every opportunity the public policy of the State of Oklahoma that the people are vested with the inherent right to know and be fully informed about their government so that they can efficiently and intelligently exercise their inherent political power."
 
Sherman is one of three candidates to file for mayor. The election will be April 2. If needed, a runoff would be May 14. Norman municipal races are nonpartisan.
 
Mayor Cindy Rosenthal, who is seeking re-election, signed the Open Government Pledge in 2010.
 
Sherman, 67, has served on the Board of Adjustment since 2006. He retired from McClain Bank in 2010 and is controller for Fowler Holding Co. He is a past chairman of the Norman Chamber of Commerce and a past president of the Norman Business Association.
 
FOI Oklahoma began the Open Government Pledge in spring 2008 as part of a national effort to spur public commitments to government transparency from candidates for president down to city council contests.
 
Signers are listed on the FOI Oklahoma website.
 

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

OSU officials say sex video crime not covered by Clery Act, but federal guidelines indicate otherwise

Oklahoma State University officials are saying the Clery Act's privacy protection for victims doesn't apply if the federal statute doesn't require the school to report the crime as an annual statistic.
 
OSU spokesman Gary Shutt told reporters on Friday night that the school was permitted to include a female student's name in a police report because her allegation of a secretly recorded sex-video wasn't covered by the Clery Act.
 
"This incident did not fall under Clery, it was not a sexual assault or any other incident that falls under the Clery Act," Shutt told News 9 in Oklahoma City. "In cases that are not a violent crime, the reporting party information is made available. This was not a case that involved bodily harm or was violent."
 
He similarly told The Daily O'Collegian that the name "did not fall under Clery because it was not an assault or other Clery-covered incident."
 
OSU police Capt. Richard Atkins made the same claim, telling the newspaper:

It's an invasion of privacy crime, not a sex offense under the Clery Act, so it is not a Clery-reportable crime. It is classified in Clery logs as another state law violation.

Atkins and Shutt are correct that the federal statute lists certain crimes for which annual statistics must be reported. Those statistics must not include the names of victims and suspects.
 
However, the federal statute also requires the university to keep and make public a log of all crimes reported to campus police.
 
From the U.S. Department of Education’s 2011 Handbook for Campus Safety and Security Reporting:

The purpose of the daily crime log is to record criminal incidents and alleged criminal incidents that are reported to the campus police or security department. For example, if a student tells your security office that he lost his wallet in the parking lot behind a dorm, it is not a criminal incident, and you aren’t required to record it in the log. However, if a student tells your security office that his wallet was stolen from his dorm room, this is an alleged criminal incident which must be recorded in the log. (p. 90)
 
How the Crime Log Differs From Other Campus Safety and Security Disclosures
 
The crime log differs from other disclosure requirements in some important ways:

• Crime log entries include all crimes reported to the campus police or security department for the required geographic locations, not just Clery Act crimes. (emphasis included)
• The crime log discloses specific information about criminal incidents, not crime statistics. (p. 91)

The OSU female student reported a crime. It must be in the crime log. So it does fall under the Clery Act.
 
And the federal handbook says victim names must be redacted from the crime log available to the public.

Many institutions are also required by state law to maintain a log. If your institution maintains such a log, you may use it for your daily crime log as well, providing it meets all Clery Act requirements. However, if the state crime log requires the victims’ names to be listed, for Clery purposes those names must be redacted for public inspection. The federal Clery Act regulations state that a disclosure may not jeopardize the confidentiality of the victim. This takes precedence over state crime log laws. (p. 90)

Oklahoma's Open Records Act doesn't distinguish between "crime logs" and "incident reports."
 
Moreover, as I noted Friday, it seems contradictory for the Clery Act to supersede state laws on "crime logs" in order to prohibit the release of the victim's name by the university but not to override state laws on "incident reports" and thus allow the release of the name by the university.
 

 
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.
 

Did OSU violate federal law by including victim's name in report on alleged sex video?

Oklahoma State University police are investigating a female student's complaint that her ex-boyfriend had secretly videotaped them having sex in October in an on-campus apartment that the student newspaper says is a football player's residence.
 
OSU officials redacted the ex-boyfriend's name and other identifying information from the report released to the news media.
 
The female student's name, address, date of birth and phone number were included in the report released to the news media.
 
OSU spokesman Gary Shutt defended the decision to redact the suspect's information but leave in the woman's, saying the university was required to by the state Open Records Act.
 
"The reporting party is public information; suspects and witnesses are not until charges have been filed," Shutt wrote to News On 6 in a Thursday email.
 
Shutt didn't cite a specific statutory provision requiring suspect names to be redacted from police reports or one requiring complainant names to be included.
 
Under the Open Records Act, the public is entitled to a "chronological list of incidents, including initial offense report information showing the offense, date, time, general location, officer and a brief summary of what occurred.” (OKLA. STAT. tit. 51, § 24A.8(A)(3))
 
Typically, I would agree that the names and identifying information for both complainants and suspects should be included in police reports.
 
However, OSU also is subject to the federal Clery Act, which requires all colleges and universities that receive federal funding and maintain a police or security department to keep a daily crime log that is open to public inspection.
 
The federal statute prohibits schools from identifying victims in the crime log.
 
As a U.S. Department of Education 2011 handbook explains:

Many institutions are also required by state law to maintain a log. If your institution maintains such a log, you may use it for your daily crime log as well, providing it meets all Clery Act requirements. However, if the state crime log requires the victims’ names to be listed, for Clery purposes those names must be redacted for public inspection. The federal Clery Act regulations state that a disclosure may not jeopardize the confidentiality of the victim. This takes precedence over state crime log laws.” (p. 90)

Oklahoma's Open Records Act doesn't distinguish between "crime logs" and "incident reports."
 
As state attorney general, Drew Edmondson had emphasized that access to law enforcement information does not depend on the record title used by the agency.
 
"The department doesn't have to call it a jail register. If it is a jail register, then it's a public record," Edmondson said in a police training video. "They don’t have to call it a radio log. If they keep a log of radio traffic, then it's a public record."
 
Bottom line: It seems contradictory for the Clery Act to supersede state laws on "crime logs" in order to prohibit the release of the victim's name by the university but not to override state laws on "incident reports" and thus allow the release of the name by the university.
 

 
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.

Ask local candidates to sign Open Government Pledge

Freedom of Information Oklahoma Inc. invites candidates for municipal offices and school board seats this spring to pledge to abide by the letter and spirit of the state's open government laws.
 
In signing the Open Government Pledge, candidates promise that they and the public bodies that they are "elected to govern will comply with not only the letter but also the spirit of Oklahoma's Open Meeting and Open Records laws."
 
Each candidate also promises to "support at every opportunity the public policy of the State of Oklahoma that the people are vested with the inherent right to know and be fully informed about their government so that they can efficiently and intelligently exercise their inherent political power."
 
The pledge and instructions for having it signed can be found on FOI Oklahoma’s website. Lists of signers also can be found on the website.
 
FOI Oklahoma began the Open Government Pledge in 2008 as part of a national effort to spur public commitments to government transparency from candidates for president down to city council contests.
 

 

FOI Oklahoma seeks nominations for First Amendment, freedom of information awards for 2012

Nominations are open for FOI Oklahoma’s awards recognizing individuals and organizations that promoted the First Amendment and the free flow of information to the public in 2012.
 
FOI Oklahoma also recognizes those who opposed dissemination of public information with its Black Hole Award.
 
The Ben Blackstock Award is presented to a non-governmental person or organization that has shown a commitment to freedom of information. The Sunshine Award goes to a public official or governmental body that has shown a commitment to open meetings and open records.
 
FOI Oklahoma also recognizes an Oklahoman who has promoted education about or protection of the individual rights guaranteed by the First Amendment with its Marian Opala First Amendment Award. The award is named for the late Oklahoma Supreme Court justice, a Polish immigrant who exemplified a belief in First Amendment rights.
 
All four awards will be presented during the Sunshine Week conference March 9. The local conference is in conjunction with national Sunshine Week, March 10-16.
 
The deadline for nominations for all four awards is Feb. 21.
 
Nominations must include a letter of no more than 250 words justifying why the person or organization is deserving of the award.
 
Nominations may be made via e-mail to foiawards@gmail.com or mailed to FOI Awards, PO Box 5315, Edmond, OK 73083-5315.
 
The 2011 winner of the Opala Award was Anthony Shadid, the Oklahoma City native and New York Times reporter who died in Syria.
 
The Blackstock Award was presented to Nicholas Harrison, a University of Oklahoma law school graduate.
 
Bradon Clabes, police chief of Midwest City, was recipient of the Sunshine Award.
 
The Black Hole Award went to Edmond City Manager Larry Stevens and the Edmond Police Department.
 
FOI Oklahoma is a statewide not-for-profit founded in 1990 to educate the public on the First Amendment and openness in government.
 

AG says Open Meeting Act doesn't apply when public bodies discuss 'broad general matters' possibly related to their business but on which they cannot take action

Public bodies don't have to abide by the Open Meeting Act when meeting with governmental agencies or private entities to discuss "broad general matters that may be related to the business of the public body, but are not matters on which the public body could take action," Attorney General Scott Pruitt said in a written opinion issued today.
 
Instead, Pruitt said, the statute applies only when public bodies are "considering discrete proposals or specific matters that are within the agency's jurisdiction."
 
For example, Pruitt said the state Corporation Commission isn't subject to the Open Meeting Act when meeting with other governmental agencies "to discuss mutual business, or attends a meeting of a private entity concerning a topic of interest to the Oklahoma Corporation Commission's business, ... unless, at the meeting, the commissioners are considering discrete proposals or specific matters that are within their jurisdiction."
 
And the statute wouldn't apply when two of the three commissioners attends a state Senate or House "meeting to provide information about the Commission's business to aid the Legislature in its process of decision-making" because the commissioners would not be "considering discrete proposals or specific matters within their jurisdiction."
 
But when at least two commissioners are present at a public utility hearing, the Open Meeting Act applies because "the commissioners are engaged in the 'conduct of business' because they are considering discrete proposals or specific matters that are within their jurisdiction."
 
Even though Pruitt's 19-page opinion dealt with the Open Meeting Act's application to the Corporation Commission, it sets the framework for other public bodies seeking to discuss issues of public concern with governmental agencies and even private entities.
 
The Open Meeting Act defines a meeting as:

[T]he conduct of business of a public body by a majority of its members being personally together or, ... together pursuant to a videoconference. Meeting shall not include informal gatherings of a majority of the members of the public body when no business of the public body is discussed. (OKLA. STAT tit. 25, §, 304(2))

Pruitt noted that opinions by his predecessors "do not limit the types of discussion that fall under the Act to those that 'effectively predetermine official actions,' and speak in broader terms about discussion, deliberation, and voting as all being the 'conduct of business.'"
 
He also noted the Oklahoma Supreme Court has said that because the Open Meeting Act was "enacted for the public's benefit," the statute "is to be construed liberally in favor of the public." (Int’l Ass’n of Firefighters v. Thorpe, 1981 OK 95, ¶ 7)
 
"As a result," Pruitt reasoned, "the state law term 'conduct of business' might well include discussions in which the members of the public body are considering information that will aid them in their decision-making, even though those discussions do not necessarily 'effectively predetermine their official actions' or cause the members to form a reasonably firm position on the matter at that moment.
 
"[H]owever, we do not believe that even a liberal construction of the term 'conduct of business' could include broad general matters that may be related to the business of the public body, but are not matters on which the public body could take action.
 
"A public body is thus engaged in the 'conduct of public business' when a majority of the members are considering discrete proposals or specific matters that are within the agency's jurisdiction."
 
For instance, Pruitt said, when at least two corporation commissioners are present at the same time at a legislative public utility hearing, the hearing is subject to the Open Meeting Act because they are "participating in discussions of discrete proposals regarding the regulation of a public utility, a matter within their jurisdiction."
 
"Citizens observing the commissioners at the public utility hearings could gain insight into how commissioners arrived at the decisions that affect their daily lives and an understanding of governmental processes," Pruitt said.
 
The Open Meeting Act would apply even if the two commissioners were "not present at the same time for the entire proceeding" or even if they had "chosen to informally 'drop in' on the same public utility hearing at the same time."
 
"Whether the Corporation Commission or another public body is engaged in the 'conduct of business' in other types of gatherings requires a consideration of the particular facts and circumstances," Pruitt emphasized.
 
As for other applications of the Open Meeting Act to the Corporation Commission, Pruitt said:

• Including meeting notices in utility bills, publishing them in newspapers, and posting them on a calendar in the lobby or other area of the Jim Thorpe Office Building fails to meet the statute's requirements.


• Minutes must record when commissioners are absent during portions of a meeting. Pruitt suggested using a notation such as "Commissioner A left the meeting" and "Commissioner A returned to the meeting" in the section of the minutes describing the matter under consideration when the commissioner left and returned. He said commissioners are absent when they are "not both visible and audible to the other members and the public."


• "Neither a court reporter's untranscribed verbatim notes nor transcript meet the Oklahoma Open Meeting Act's requirements for minutes of a public meeting."

Pruitt also said commissioners "may not post notice of and attend two separate meetings held in separate locations at the same time on the same day."
 
"As a majority of the Corporation Commission cannot be in two places at the same time, it is not possible for two 'meetings' to occur at the same time."
 
For example, notices and agendas might be posted for a commission meeting and a public utility hearing conducted by an administrative judge to be held at the same time in different locations. This would allow the commissioners "to move back and forth between the two meetings as they desired."
 
Pruitt called such a practice "misleading to the public."
 
"Rather than 'encourage and facilitate an informed citizenry's understanding of governmental process and governmental problems,' it would more likely confuse and frustrate citizens who wanted to observe the commissioners actions in both the commission meeting and the public utility hearing," Pruitt said. "The public would essentially have to follow the individual commissioners back and forth from place to place.
 
"An interpretation of the Open Meeting Act to allow posting of two sets of notices for meetings held at the same time on the same day but in different locations so individual commissioners can move back and forth between the two meetings as they desire does not attain or champion the spirit and purpose of 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.

VA comm'r wants to throw out state Open Meeting Act

A member of the state commission overseeing the Veterans Affairs Department wants to do more than meet socially with a majority of the board without public notice, which the state Open Meeting Act already allows.
 
Thomas Howell wants legislators to allow the War Veterans Commission to discuss the public's business in secret.
 
"I said just throw it all out and say commissioners can meet whenever they wanted to, to discuss the problem that you have so you can have an answer when you come to these meetings on the problems we are having to address now," Howell said.
 
Howell, who represents Disabled Veteran Americans on the board, said he has spoken with two state senators about proposing a bill allowing a majority of the nine-member commission to meet secretly without violating the Open Meeting Act.
 
The Oklahoman's article didn't identify which two senators might be considering such idiotic legislation. But another news outlet reported that Howell has spoken with Sen. Don Barrington, R-Lawton.
 
Howell's public comments were made Friday during a meeting in which the commission voted to remove "interim" from John McReynolds' job title as executive director of the state's Veterans Affairs Department.
 
Ironically, the commissioners interviewed McReynolds and another candidate during an executive session, which means the public was excluded from that part of the meeting.
 
But the Open Meeting Act prohibits the majority of a public body from meeting without posting advance notice and an agenda telling the public that such an executive session is scheduled. (Okla. Stat. tit. 25, § 303)
 
These requirements exist for good reason. As the state Court of Civil Appeals said in 2008:

The [Open Meeting] Act is designed to ‘encourage and facilitate an informed citizenry's understanding of the governmental processes and governmental problems. … The Act serves to inform the citizenry of the governmental problems and processes by informing them of the business the government will be conducting. (Wilson v. City of Techumseh, 2008 OK CIV APP 84, ¶ 10)

This includes the entire decision-making process, our state Supreme Court has said.
 
"The underlying goals of the 'open meeting laws' can not be seriously challenged. If an informed citizenry is to meaningfully participate in government or at least understand why government acts affecting their daily lives are taken, the process of decision making as well as the end results must be conducted in full view of the governed." (Oklahoma Ass’n of Municipal Attorneys v. Derryberry, 1978 OK 59, ¶ 10)
 
Or as an attorney general opinion later explained, "Public access to a mere 'rubber stamp' vote is all but useless." (1982 OK AG 212, ¶ 7)
 
Howell complained that the Open Meeting Act's requirements cause problems because more than four commissioners are members of the VFW and the American Legion. He apparently believes that the statute prohibits the majority of a public body from gathering at parties, dinners or other social events.
 
In 2007, however, legislators added language to the statutory definition of "meeting" to clarify that a majority of a public body may gather informally as long as "no business of the public body is discussed." (Okla. Stat. tit. 25, § 304(2))
 
But Howell's comments indicate that he believes commissioners should be able to discuss -- and essentially decide -- the public's business far from the prying eyes of the people they're supposed to serve.
 
Fortunately, Commission Chairman Richard Putnam seems to understand the purpose of the Open Meeting Act, saying:

My interpretation is we're not prevented from attending things like conventions where we are all members. We are just prevented from meeting as commissioners during those events. In psychology, we call it face validity. I think in order to have the public's trust we need to demonstrate we will not meet secretly.

The War Veterans Commission and the Veterans Affairs Department need to be building public trust. The agency has been criticized for a "series of premature deaths, abuse and neglect cases" at the seven nursing centers it operates. A former nurse's aid at the Veterans Center in Norman was convicted last week of one count of first-degree rape and two counts of forcible oral sodomy on patients.
 
In August, Gov. Mary Fallin requested an audit to review of the efficiency and effectiveness of the agency's management, the efficiency and effectiveness of the oversight of department operations, the reasonableness of expenditures, and a review of the expenditures of the department's administration for compliance with appropriate state statutes and regulations.
 
Howell of Duncan was one of eight new members appointed by Fallin to the commission in May. He had served on the commission previously as an appointee of Gov. Frank Keating in 1995.
 
Fallin, as a gubernatorial candidate in 2010, publicly said she expected her appointees to public bodies to abide by the Open Meeting and Open Records laws.
 
Fallin should emphasize that to Howell or replace him.
 

 
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. Differing interpretations of open government law and policy are welcome.