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Owasso Councilman Patrick Ross sued the town on Tuesday in an attempt to make public an investigative report that led to the resignation of the city manager.
Ross' lawsuit, filed in Tulsa County, alleges a number of violations of the state's open government laws, including that the City Council did not vote publicly to keep that report secret, not pursue criminal prosecution of then-City Manager Rodney Ray, and whether to fire him.
The lawsuit asks Judge Daman Cantrell to declare invalid the city's resignation agreement with Ray and declare the investigative report to be a public record.
Chris Camp, Ross' attorney, argues that the City Council also violated the Open Meeting Act during meetings on May 24, June 18, June 21 and June 25 by conducting executive sessions "for the purpose of discussing personnel matters relating to the Office of the City Manager."
As noted by this blog on July 12, a state attorney general opinion requires that agenda items for an executive session under the personnel exemption include either the name of the person or the person's position if it "is so unique as to allow adequate identification." (1997 OK AG 61, ¶ 5)
The opinion agreed that placing the person's name or unique title on the agenda would lessen the confidentiality. Still, it added:
We note that for a public body to convene in executive session to discuss employment matters is not mandatory; it is simply 'permitted.' While on the other hand a public body's duty to specify on the agenda all matters to be undertaken in a meeting is absolute. (Id. ¶ 4)
As this blog did, Camp argues that listing "Office of the City Manager" isn't listing a name or unique title and is so broad that the council could have discussed any employee of that office. He notes that the title of city manager and the Office of the City Manager aren't synonymous, interchangeable terms under the city's charter and ordinances.
The executive sessions focused solely on Ray, the lawsuit states.
The council also violated the Open Meeting Act by not keeping minutes of its executive sessions on those dates, the lawsuit states.
Minutes of executive session discussions must be kept, the state Supreme Court said in 1980. (Berry v. Bd. of Governors of Registered Dentists, 1980 OK 45, ¶ 12)
A 1996 state attorney general opinion (1996 OK AG 100, ¶ 5 ) came to the same conclusion. It noted that legislators had kept confidential the minutes of lawful executive sessions under the Open Records Act (OKLA. STAT. tit. 51, § 24A.5(1)(b)) and had mandated that a willful violation of the Open Meeting Act caused the executive session minutes to be made public (OKLA. STAT. tit. 25, § 307(F)(2)).
Ross' lawsuit says council members were permitted to read the investigator's report only during the June 21 executive session. They weren't allowed to keep copies so the city "could respond 'truthfully' that no member of its staff or the City Council possessed a copy of the report," according to the lawsuit.
During the June 21 executive session, City Attorney Julie Lombardi told the council that the report was considered a confidential personnel record.
During that executive session, the council also discussed whether to seek criminal prosecution of Ray and a proposed resignation agreement was presented by Lombardi and discussed, according to the lawsuit.
It notes that neither topic was listed on the meeting agenda and the council didn't vote publicly to designate the report confidential.
The lawsuit points out that following that meeting, Lombardi told the Tulsa World that the investigator had presented his finding orally and that neither the city nor the council had received a written report from the investigator.
During the June 25 executive session, the lawsuit states, the council discussed a counter-proposal from Ray regarding his resignation agreement even though that topic was listed under a separate agenda item for public discussion.
Ross contends that only a vote of the council could deem the investigative report to be a confidential personnel record. Council member Jeri Moberly told the Owasso Reporter last month that the council had voted to do so on June 25 when it publicly voted to accept the resignation agreement. But the lawsuit notes that the resignation agreement didn't mention the investigative report and conceded that the agreement itself was a public record.
Ross' lawsuit also contends that the council violated the Open Meeting Act by conducting confidential communications with its attorney during the executive sessions even though that exemption wasn't listed on the agendas and the council didn't determine prior to going into the executive sessions that disclosure of its communication with the city attorney would "seriously impair the ability" of the council to conduct the investigation.
The lawsuit contends that the report is "an internal affairs investigation of a City office" and not an exempted personnel record. Placing the investigative report into Ray's personnel file did not exempt it from disclosure under the Open Records Act, the lawsuit argues. It also also notes that the report isn't actually in Ray's personnel file.
Even if the judge deems it a personnel record, the lawsuit argues, the report should be public as a "final action resulting in loss of pay ... or termination."
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 Tulsa World and Owasso Reporter received copies Monday of police videos showing an arrest that led to the firing of an Owasso police officer who was recently reinstated by an arbitrator.
The city had refused the newspapers' requests for a copy of lapel camera video showing a police lieutenant using what the city deemed was excessive force and for which he was fired.
The Tulsa World sued the city in December for access to the video. The lawsuit is pending, the newspaper reported Monday.
At the time, City Manager Rodney J. Ray said the public interest in releasing the videos didn't outweigh the reasons for denying access.
On Monday, Ray told the Tulsa World that "we are in complete agreement that this is an open record."
He also told the newspaper that the footage was released because of the arbitrator’s ruling last week and because the man arrested in the video had released the city from liability over the disclosure.
Ray said the release of arrest videos by other cities had also changed his mind.
In denying the request, Ray and the city had argued that arrest videos are not included in the eight categories of law enforcement records that must be released under the state Open Record Act. (See OKLA. STAT. tit. 51, § 24A.8(A)(1-8))
The statute allows police departments to deny access to other law enforcement records "except where a court finds that the public interest or the interest of an individual outweighs the reason for denial." (OKLA. STAT. tit. 51, § 24A.8(B))
But Ray and the city contended that the public interest was outweighed by the officer's right to appeal his termination to the city's Personnel Board and to seek binding arbitration.
Monday's release is the second time in eight months that Owasso has provided police video after being sued.
In December, city officials agreed to release the police officer lapel camera video and audio materials sought by the family of a Tulsa man who died Oct. 27 in the Tulsa County jail.
The family had filed an Open Records Act lawsuit against Owasso after the police department would release only an arrest report, a radio log and a computer-aided dispatch report.
In the lawsuit, the family argued that the lapel video and other materials were "essential in determining the events which transpired during the arrest," the Tulsa World had reported.
Access to videos of arrests has been an issue elsewhere in the state.
In March, a Washington County judge ordered Bartlesville police to provide the local newspaper with a copy of hospital surveillance video that had led to the arrest of two officers in December.
That decision contrasted with a Rogers County judge's decision in August that the Claremore Police Department's dash-cam recordings are not public records. But the judge said requesters could ask a court to find that the release of a particular recording would serve a public interest that outweighs the reason for denial.
A year ago, Catoosa decided to release its police department's audio and video recordings after the city was sued for access. Officials agreed that the recordings "are subject to the Open Records Act."
In 2004, the state Supreme Court held that Department of Public Safety recordings of administrative hearings contained facts concerning arrests and therefore were open under the Open Records Act. (Fabian & Assoc., P.C., v. State ex. rel. Dept. of Public Safety, 2004 OK 67, ¶ 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."
Those tapes were recordings of administrative hearings concerning the revocation of drivers' licenses.
Certainly the same reasoning applies to the police recordings of actual arrests.
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 residents can now read staff memoranda and other documents that form the basis for policy discussions by the City Council during its monthly "work sessions."
City officials had been withholding the documents, claiming they were drafts exempted under the state Open Records Act.
But the statute 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)
In late October, City Manager Rodney Ray agreed to release those "work session" documents to the Owasso Reporter even though he disagreed that the Open Records Act required him to do so.
The Owasso Reporter asked City Attorney Julie Lombardi if the work session documents would be made available to the general public, too.
In November, the city began making the documents available to the general public.
Ray's administrative assistant, Juliann M. Stevens, emailed the September agenda packet to Jennifer Gray, who was a student in my media law course and also an Owasso resident.
The city also is posting the agenda packets for "work sessions" online. See the Nov. 8 packet and the one for tomorrow (Dec. 13).
Thank you to the Owasso city officials for making the documents easily available to the public.
Kudos to the Owasso Reporter for sticking up for not just its need to know but for the public's 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.
Owasso City Manager Rodney J. Ray this week refused local newspapers' requests for a copy of lapel camera video showing a police lieutenant using excessive force for which he was fired.
Arrest videos are not included in the eight categories of law enforcement records that must be released under the state Open Record Act, Ray said in an email Tuesday to the Owasso Reporter and Tulsa World. (See OKLA. STAT. tit. 51, § 24A.8(A)(1-8))
The statute allows police departments to deny access to other law enforcement records "except where a court finds that the public interest or the interest of an individual outweighs the reason for denial." (OKLA. STAT. tit. 51, § 24A.8(B))
Former police Lt. Michael Denton was fired Nov. 4 based on an official determination that he had used excessive force in the June 30 arrest of a Collinsville man.
Police Chief Dan Yancey said a police officer lapel camera captured video that was useful in the investigation of the complaint against Denton.
Ray, in denying the newspapers' Open Records Act request for the video, said Denton is "entitled under both local and state law to appeal his termination to the City of Owasso's Personnel Board and to also seek binding arbitration."
"After consideration of a number of factors including rights of arbitration and appeal guaranteed by law to the employee, the City of Owasso has determined that disclosure of the arrest video is not appropriate and does not believe the public interest outweighs the reasons for denial of this request," Ray said. "Therefore, requests for release of [the] arrest video must be declined."
Denton's attorney has said his client did not use excessive force and his firing was unjustified. Denton has initiated a grievance through the Fraternal Order of Police, the Owasso Reporter said Nov. 10.
But Ray didn't explain how public disclosure of the video would jeopardize Denton's rights of arbitration and appeal. Wouldn't the video be introduced as evidence in such proceedings? Wouldn't those officials make a decision based on evidence, not on public opinion? Will the video be released once the arbitration is completed?
As for whether the video should be considered a law enforcement record that must be disclosed, Ray's reasoning follows a Rogers County judge's ruling in August.
Associate District Judge Sheila A. Condren held that the Claremore Police Department's dash-cam recordings are not public records under the state Open Records Act.
She said requesters could ask a court to find that the release of a particular recording would serve a public interest that outweighs the reason for denial.
However, Condren's ruling on the status of police videos runs contrary to relevant cases and to common practice in the state.
In 2005, an Oklahoma County district judge barred "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.)
A year earlier, the state Supreme Court that Department of Public Safety 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 Owasso lapel camera video certainly contains facts concerning the arrest of the Collinsville man in which the excessive force occurred.
Other local law enforcement agencies typically release such recordings. In June, for example, Catoosa officials agreed to release that police department's audio and video recordings. In August, the Oklahoma County sheriff released the dash cam video of a head-on collision in which a deputy was injured.
The public certainly has an interest in seeing how those entrusted with enforcing our laws are doing their jobs.
State legislators should resolve this issue by updating our Open Records Act to explicitly defining audio and video recordings of arrests as law enforcement records that must be disclosed along with incident reports and other information related to arrests.
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.
Owasso officials Wednesday released documents indicating the city paid $175,000 to settle a federal lawsuit by a former police officer, the Tulsa World reported today.
The former police officer's name was not in the documents, but the records show a payment was made from the city's self-insurance fund to his attorneys on the same day the case was dismissed in court, the newspaper explained.
In early December, Owasso officials refused to disclose the amount, saying it would violate a confidentiality agreement the city had agreed to as part of the settlement.
However, state law requires that "judgments, orders, and settlements of claims shall be open public records unless sealed by the court for good cause shown." (OKLA. STAT. tit. 51, § 158(G))
A federal judge had refused a request by city officials and the former officer to order confidentiality for the settlement terms.
On Wednesday, Owasso City Manager Rodney Ray said expenditure and transaction records for the city's general liability self-insurance fund were covered by the Open Records Act and disclosure wouldn't violate the confidentiality agreement.
"While the City of Owasso is bound by the terms of the settlement agreement, the city concomitantly has a compelling duty under state law to respond to requests made under the Open Records Act for documents and records," he told the Tulsa World in an e-mail. "In addition, as always, the city of Owasso seeks to be as transparent as possible in its decisions and actions."
In early December, this blog questioned why local governments are allowed to enter into secret settlements in the first place.
It's the public's money -- even if paid from a self-insurance fund or by an insurance company to which the city pays premiums.
Taxpayers are entitled to know -- need to know -- how their elected officials spend public funds and how those officials agree to settle claims against governments.
Legislators should specifically prohibit state agencies and local governments from agreeing to keep settlements secret.
Joey Senat, Ph.D.
Associate Professor
OSU School of Journalism
