Open Records Act lawsuit filed against Muskogee County district attorney, who claims IT department cannot search emails for requested documents

The operator of an online news service filed a lawsuit Thursday accusing Muskogee County District Attorney Larry Moore of violating the Open Records Act by not producing documents concerning courthouse security and surveillance when they were requested.
 
Leif Wright's lawsuit also asks a judge to order Moore to provide requested emails on the subject.
 
Moore has told Wright's attorney that the IT department housing the emails cannot search them for the requested records.
 
In September, the Muskogee County Bar Association filed a complaint against Moore accusing him and others in his office of having access to live audio and video feeds of courtrooms while defense lawyers privately consulted with clients, the Muskogee Phoenix reported.
 
In October, Wright, who operates Muskogeenow.com, requested from Moore's office all records related to the recording of video and audio in the Muskogee County Courthouse.
 
Moore responded in a letter to Wright's attorney, Ronald E. Durbin II of Tulsa, that most of the records did not exist.
 
Durbin responded in writing that he found it "extremely difficult to believe that, given the nature of the controversy related to this issue, that no emails and/or text messages exist" and that he had reason to believe they did.
 
Moore subsequently provided a number of the documents.
 
However, in a Nov. 7 letter to Durbin, Moore said the District Attorneys Council Information Technology Division, which stores his office emails, "did not have the technological capability to conduct such [a] search for e-mails or text messages."
 
Wright's lawsuit contends that Moore's office does have the capability to search emails and asks a judge to order Moore to do so.
 
The lawsuit also accuses Moore of violating the Open Records Act by not providing documents when they were first requested.
 
Moore told the Muskogee Phoenix Thursday night that had not seen the petition but that he and his office had complied with Wright's request.
 
"We have given him what he has requested under the Open Records Act," Moore told the newspaper. "You can't give them what you don't have. We've searched the records to the best of our ability and have found nothing else."
 
But Wright counters in a column this morning:

Moore said he isn't obligated to give the public those public documents, since he has no way to search them.
 
We believe it is, however, his obligation to do so, and it stretches credulity to say that, in 2012, somehow emails are completely unsearchable.
 
The most basic home computer has the ability to search emails, why doesn't the agency in charge of making sure those emails get archived have the ability to search them once they're archived?

Darn good question.
 

 
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.

Boynton officials under investigation for open records, meeting violations close City Hall

Boynton officials are being investigated by the Muskogee County sheriff and district attorney for violating the state’s Open Records and Meeting laws, The Muskogee Phoenix reports.

Town officials are accused of locking the public out of a public meeting in order to keep refreshments from being eaten and of ending three trustee meetings rather than letting sheriff’s deputies record the meetings as allowed by state law. Boynton police threatened to arrest one deputy if he didn’t turn off the recorder, Sheriff Charles Pearson told the newspaper.

Public records have been denied not only to residents but also to District Attorney Larry Moore.

“We have requested certain council meeting minutes and understand the mayor took those meeting records, that some have been returned and others have been lost or may no longer exist,” Moore told the newspaper.

Mayor Marie Wilson also refused to release public records on Tuesday, the newspaper said.

Other allegations under investigation include nepotism, police writing unlawful traffic tickets, and the three town trustees not calling a required election to fill two empty seats.

Two of the three trustees are sister and brother: Marie (Lang) Wilson and Clairborne Lang. Wilson was elected while her brother was appointed. Boynton Police Officer Martin Lang is their brother, the newspaper reported.

Town Administrator Melvin Easiley of Tulsa told the Tulsa World that it’s difficult to comply with nepotism rules because “over 98 percent” of Boynton's residents are related.

Easiley told the newspaper he thinks the criticism of the predominantly black town is racially-motivated.

“This is about some black people running City Hall,” he said.

But Pearson apparently sees it differently, telling The Muskogee Phoenix:

Boynton residents are getting tired of the long arm of the Langs. Boynton is becoming a nation unto itself.

Just when it seemed that the situation couldn't get any stranger, Wilson ordered City Hall closed for Wednesday and the rest of the week, the newspaper reported.

Meaning that because of the Labor Day Holiday on Monday, residents won't be able to pay their water bills until Tuesday.

How ironic, given that Pauline Osburn, the town’s clerk/treasurer, was arrested in May 2009 after refusing town trustees access to the town’s water records.

Once officials had the records in hand, they learned the town of fewer than 300 residents had about $15,000 in the bank but more than $40,000 in debts.

At the same time, the city was owed thousands of dollars for delinquent water bills. One resident owed more than $8,000, The Muskogee Phoenix had reported.

Last October, Osborn pleaded guilty to two counts of violating the state’s Open Records Act. She was given a suspended one-year sentence for each count and required to pay a $250 fine on each count, plus about $800 in court costs and a monthly probation supervision fee of $40 per month, The Muskogee Phoenix had reported.

But the 73-year-old Osburn didn’t seem to understand that she had done anything wrong, indicating to the judge she would likely do it again given the same circumstances, The Muskogee Phoenix had reported.

So we shouldn’t be too surprised by the current attitude of town officials toward open government.

This time, however, Moore should refuse any plea agreements if he decides to bring charges. If Boynton officials are convicted of violating of the Open Records and Meeting acts, he should push for the maximum punishment of one year in jail and a $500 fine for each count.

Maybe that will send a message that no matter how small the town, all locally elected officials are expected to know and abide by our open government laws.

Joey Senat, Ph.D.

Associate Professor

OSU School of Media and Strategic Communications

Muskogee DA to County Commission: "We're going to follow the law. It's as simple as that."

A fouled-up agenda led to some heated words between Muskogee's district attorney and county clerk on Monday (July 20) regarding Open Meeting Act requirements.

It ended with County Clerk Karen Anderson calling District Attorney Larry Moore an "ass," according to a source who was at the meeting.

The verbal exchange came after Moore refused to allow an emergency meeting of the County Board of Commissioners on Monday, the Muskogee Phoenix reported.

Anderson had tried to call the emergency meeting because the wrong date for Monday's regular meeting was listed on the posted agenda.

Anderson argued that the county could lose some interest on deposits and could have to pay late fees to vendors if purchase orders weren’t approved Monday, the newspaper reported.

However, Moore said an emergency meeting was not justified because Anderson could call a special meeting for Wednesday (July 22) without sustaining any financial loss.

In what the newspaper described as "a heated verbal exchange," Anderson argued that state law allowed her to call a meeting of the county commissioners. Moore countered that such a meeting would still have to comply with the Open Meeting Act.

“I’m tired of catching grief on some of this stuff,” Moore said. “We’re going to follow the law. It’s as simple as that.”

Moore then gathered his papers and left. The newspaper reported that Anderson called Moore a name and said, “I’m not going to be talked to like that.”

The Open Meeting Act allows public bodies to conduct emergency meetings "for the purpose of dealing with an emergency.” An emergency “is defined as a situation involving injury to persons or injury and damage to public or personal property or immediate financial loss when the time requirements for public notice of a special meeting would make such procedure impractical and increase the likelihood of injury or damage or immediate financial loss.” (OKLA. STAT. tit. 25, § 304(5))

If Moore is "tired of catching grief" over open meeting issues, he might be able to quiet his critics by prosecuting violations. That would make officials think twice before thumbing their noses at the public's right to know, which would leave taxpayers with fewer reasons to fuss at him.

Joey Senat, Ph.D.
Associate Professor
OSU School of Journalism