Are discussions of pending investigations exempted under the Oklahoma Open Meeting Act?

(Question received today from a reporter.)

Yes. The exemption is 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).)

“A ‘pending’ claim can refer to litigation or an administrative action which either presently exists or is merely potential or anticipated,” Oklahoma Attorney Drew Edmondson has said. (2005 OK AG 29, ¶ 13)

“We note at the outset that ‘pending’ investigations, claims, and actions must refer to a wider class of things than those already in existence; otherwise, the term ‘pending’ would be superfluous. ‘Pending’ is not defined in the OMA or elsewhere in the Oklahoma Statutes. In such cases, the ordinary meaning of a word is used. The dictionary defines ‘pending’ as "not yet decided : in continuance: in suspense’ or ‘until the occurrence or completion of : while awaiting.’ Webster's Third New International Dictionary 1669 (3d ed. 1993). The first definition connotes something already in existence, while the second includes things not yet existing. Thus, ‘pending’ can refer to an investigation, claim or action which either presently exists or is merely potential or anticipated,” he said. (Id. ¶ 9)

However, he added:

“The Legislature did not exempt from public scrutiny every discussion between a public body and its attorney involving a ‘pending investigation, claim, or action.’ 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.” (Id. ¶ 11)

Joey Senat, Ph.D.
Associate Professor
OSU School of Journalism and Broadcasting
"Mass Communication Law in Oklahoma"
joey.senat@okstate.edu