Gov. Fallin's office says up to 2 months to respond to request for emails regarding health insurance exchange

Gov. Mary Fallin's spokesman said it will take as long as two month to compile emails that could shed light on why she refused to create a state health insurance exchange, The Oklahoman reported today.
 
Fallin will decide which emails she will keep from the public under a claim of executive privilege, Alex Weintz told the newspaper in a meeting Thursday.
 
He estimated that compiling the "hundreds of thousands” of emails covering six months will take 100-plus man-hours.
 
"This is a time-consuming, labor-intensive process, and right now we're processing the request and we haven't denied any documents," Weintz said.
 
Fallin's legal advisers will review the emails individually, but Fallin will decide which records will be considered privileged, Weintz said.
 
FOI Oklahoma and others have criticized Fallin's unprecedented claims of executive branch privileges in response to various records requests since the spring.
 

 
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.

Gov. Fallin claims unprecedented constitutional privileges to hide records from public

Gov. Mary Fallin has claimed at least three times this year that privileges for the executive branch allow her to hide records from public scrutiny.
 
Most recently, she refused to release emails that could shed light on why she refused to create a state health insurance exchange, The Oklahoman reported Friday.
 
Fallin's general counsel, Steve Mullins, claimed the records are protected by executive privilege and deliberative process privilege, as well as attorney-client privileges far exceeding what state legislators and the Oklahoma Supreme Court have granted government officials.
 
On Fallin's behalf, Mullins also made such claims when refusing to release execution procedure-related documents to The Associated Press and denying various records to the Tulsa World.
 
However, Oklahoma courts have not recognized that executive privilege and deliberative process privilege exist under the state Constitution.
 
Instead, Mullins has attempted to conjure them by misconstruing state statutes and applying federal case law.
 
These privileges would turn the state Open Records Act upside down. Under the statute, the government official denying access must cite an applicable state or federal statutory exemption. But under these privileges, the burden would fall on Oklahomans to prove to a court that they should be allowed to see the government records.
 
These privileges would allow Fallin to claim secrecy for records that would be open to the public if in the hands of local officials because the Legislature has not deemed the information confidential.
 
Mullins told The Oklahoman that Fallin’s administration is "more open than anybody else has ever been."
 
But Fallin wants privileges of secrecy that apparently none of her predecessors thought was necessary.
 
As a gubernatorial candidate seeking public support, Fallin promised that she would "comply with not only the letter but also the spirit of Oklahoma’s Open Meeting and Open Records laws."
 
Fallin pledged to "support at every opportunity" the state's policy that "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."
 
But now, Fallin spokesman Alex Weintz says the governor does not believe the Open Records Act was meant to allow access to "conversations between executive branch employees working on draft documents, brainstorming on public policy ideas, offering advice and counsel to the governor, or otherwise acting in an advisory role."
 
"Eliminating the possibility of private dialogue inside the executive branch would damage the ability of the governor to design and implement good policy and would harm the public interest," he said.
 
Then why haven't such records been explicitly exempted by the state Legislature or such privileges written into the Oklahoma Constitution?
 
I urge The Oklahoman, Tulsa World, The Associated Press, other news organizations and public advocacy groups to challenge Fallin's claims in court. Otherwise, Fallin has unilaterally created her own exemptions to the Open Records Act.
 
Better yet, Fallin should quit claiming these privileges until Oklahomans grant them to her in the state Constitution. If she believes the public interest is best served by keeping these secrets, then she should persuade voters to give her the power to keep such information from public scrutiny.
 
I don't believe she would be successful. Oklahomans realize that if they are to meaningfully participate in their government and understand the governmental decisions affecting their lives, they must be privy to the deliberative discussions revealing why officials chose one alternative and rejected others.
 
A point that they should express to the governor now.
 
Because if Fallin has her way, her legacy as governor will be more government secrecy. Just the opposite of what she promised Oklahomans when she was asking for their votes.
 

 
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.

State education board denies violating Open Meeting Act with incomplete agenda item

The state Education Board didn't violate the Open Meeting Act in September by omitting from the agenda the item of business that would be discussed in an executive session, a spokeswoman said Thursday.
 
The department's reasoning boils down to 'cause we say we didn't.
 
"We believe the actions of the Board, both with regard to posting and procedure, were in compliance with the Open Meeting Act. We are evaluating established processes of the Department to ensure they are and remain fully complaint with the law," said Tricia Pemberton in an email to Kurt Gwartney, KGOU news director.
 
Gwartney, who had questioned the vague agenda item, said Friday that he intends to bring a complaint to Oklahoma County District Attorney David Prater next week.
 
I explained in early October why the omission violates not only the wording of the Open Meeting Act but also conflicts with previous attorney general opinions and pronouncements by the current AG for the past year.
 
As Gwartney later noted, "The agenda item basically gave the reader absolutely no idea what the board would be discussing."
 
Let's hope Prater agrees that the board violated the Open Meeting Act and at the very least tells the board to change its ways.
 

 
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.

Attorney fees awarded in Open Records Act lawsuit against Yukon school district

A Canadian County judge recently awarded $18,000 in attorney fees and court costs to the plaintiffs who successfully sued Yukon public schools to obtain an investigative audit of the district's Future Farmers of America program.

Judge Gary E. Miller had ruled in June that the audit was not protected by attorney-client privilege because the district had not hired the outside investigator as an attorney.

The lawsuit filed by Randy and Debra Wright of Yukon in January also revealed a number of apparent Open Meeting Act violations by the Yukon Board of Education.


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.

Agenda didn't explain why state education board would meet behind closed doors

Last week's meeting agenda for the state Board of Education omitted the item of business that would be discussed in executive session.
 
That omission violates not only the wording of the Open Meeting Act but also conflicts with previous attorney general opinions and pronouncements by the current AG for the past year.
 
It also robbed Oklahomans of their right to know what public business the board would be discussing behind closed doors.
 
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))

Similar wording can be found in the provision allowing executive sessions to discuss "matters pertaining to economic development ... if public disclosure of the matter discussed would interfere with the development of products or services or if public disclosure would violate the confidentiality of the business." (§ 307(C)(10))
 
"A vote to enter into executive session pursuant to [that provision] must also be an affirmation the public body has determined the executive session is necessary because 'public disclosure of the matter discussed would interfere with the development of products or services' OR 'public disclosure would violate the confidentiality of the business,'" Attorney General Scott Pruitt said in a formal opinion in November. (2011 OK AG 22, ¶ 5)
 
The vote to enter an executive session under the attorney-client privilege would require the same kind of public affirmation that a public discussion would "seriously impair the ability of the public body to process the claim or conduct a pending investigation, litigation, or proceeding in the public interest."
 
However, the state education board had no such discussion. Instead, the board simply voted to go into executive session. (Listen to the Sept. 27 audio starting at the 1:21.00 mark.)
 
The Open Meeting Act 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))

Unless those notice provisions "are strictly complied with," the Open Meeting Act prohibits public bodies from going into an executive session. (§ 307(E))
 
But the state Board of Education didn't list the specific investigation, claim or action to be discussed.
 
Instead, its agenda listed only the specific statutory authorization for the proposed executive session, stating under "Legal Services":

Discussion and possible action to Convene into Executive Session to discuss a pending investigation, claim, or action pursuant to 25 O. S. Section 307(B)(4)
(a) Convene into Executive Session
(b) Return to Open Session
(c) Possible action

The board took no action when it returned to open session.
 
In a 1998 written opinion, then-Attorney General Drew Edmondson emphasized that the statute says, "All agendas required pursuant to the provisions of this section shall identify all items of business to be transacted by a public body at a meeting, including, but not limited to, any proposed executive session for the purpose of engaging in deliberations or rendering a final or intermediate decision in an individual proceeding prescribed by the Administrative Procedures Act." (1997 OK AG 61, ¶ 2)
 
The bold italics were Edmondson's.
 
"Whether a matter pertains specifically to an executive session or not, the Oklahoma Supreme Court has stated that the Act requires that agendas must be worded in plain language, directly stating the purpose of the executive session," Edmondson said. (¶ 3)
 
He conceded that "a public body may be unable to maintain the confidentiality available in an executive session if it must state on the agenda the nature of the matter to be discussed in executive session." (¶ 4)
 
"Still, we note that for a public body to convene in executive session to discuss employment matters is not mandatory; it is simply 'permitted,'" said Edmondson. "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.)
 
"In this light," Edmondson said, "it is quite evident that the word 'identify,' as used in Section 311(B), connotes a requirement by the Legislature that public bodies must provide the public with enough information on its agendas to allow the public to know the nature of an executive session discussion." (¶ 3)
 
Pruitt emphasized the same statutory requirements last November, saying public bodies cannot meet in executive session to discuss economic development unless they "give proper notice of the proposed executive session on the meeting agenda." (2011 OK AG 22, ¶ 5)
 
Even more to the point, Pruitt told a state agency a year ago that its agenda was too vague under the Open Meeting Act when it listed an executive session "for the purpose of considering a settlement of a lawsuit(s)" under the attorney-client provision.
 
The meeting agenda should have listed the name of the parties in the lawsuit and a brief description of the litigation, Pruitt reportedly told the Commissioners of the Land Office.
 
In response, the agency's spokeswoman said, "In the future, we will list all parties of pending litigation."
 
At an open government workshop for public officials and others in Oklahoma City in November, Pruitt's top assistant 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.
 
"The public has a right to know what you are going to discuss in an executive session," said Rob Hudson, first assistant attorney general.
 
The agenda item should list information such as the name of the parties in the lawsuit, Hudson said.
 
"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."
 
Oklahoma courts have provided other guidance for interpreting the Open Meeting Act. For example, the Court of Civil Appeals has 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)
 
And because the Open Meeting Act was "enacted for the public's benefit," the Oklahoma Supreme Court said in 1981, the statute "is to be construed liberally in favor of the public." (Int’l Ass’n of Firefighters v. Thorpe, 1981 OK 95, ¶ 7)
 
Or as Hudson warned officials in November: "The Open Meeting Act is the law. Don't break the law."
 
Yet, the state Board of Education's agenda last week listed nothing more than the statute allowing the executive session. So much for the public's right to know what would be discussed behind closed doors.
 

 
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.

Healdton City Council again seems to violate Open Meeting Act; DA waffles over previous violations

The Healdton City Council recently met in executive session to "discuss consulting and possible hiring of Human Resources attorney regarding pending litigation," The Ardmoreite reported Monday.
 
But the Open Meeting Act doesn't permit a closed-door discussion of hiring an independent contractor.
 
And in another apparent violation of the statue, the meeting agenda failed to reveal anything about the "pending litigation" that justified the executive session.
 
The meeting Aug. 6 was the second this summer in which the council seemed to have violated the Open Meeting Act.
 
On July 2, the council met behind closed doors under the statutory exemption to discuss terrorism-related issues even though it actually discussed hiring the state auditor to investigate the finances of the small town in south-central Oklahoma.
 
The meeting agenda not only listed the wrong statutory exemption but also failed to include any information about the "pending investigation" that would be discussed.
 
Carter County District Attorney Craig Ladd waffled last week on whether the council violated the Open Meeting Act in July.
 
In an email to The Ardmoreite on Aug. 7, Ladd wrote, "After looking into the matter further, I am not convinced a willful violation occurred (other than perhaps the clerical error of citing B9 rather than B4 and then proceeding, rather than postponing it for another week.)"
 
So wouldn't that be a violation?
 
Criminal intent isn't necessary for a violation to have occurred. The question is only whether the council willfully failed to comply with the Open Meeting Act. (See Hillary v. State, 1981 OK CR 78, ¶ 5)
 
"Willfulness does not require a showing of bad faith, malice, or wantonness, but rather, encompasses conscious, purposeful violations of the law or blatant or deliberate disregard of the law by those who know, or should know the requirements of the Act," the state Supreme Court has said. (Rogers v. Excise Bd. of Greer County, 1984 OK 95, ¶ 14)
 
Before the council had entered the executive session, Ardmoreite reporter Michael Pineda objected, in part because the wrong statutory authorization was cited.
 
As Ladd conceded to the newspaper, the council proceeded with the executive session rather than postpone it a week. That's deliberate disregard of the law.
 
The Open Meeting Act prohibits executive sessions unless certain procedures, such as listing the statutory authorization, are "strictly complied with." (OKLA. STAT. tit. 25, § 307(E))
 
The Court of Civil Appeals has said "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)
 
The statute requires that the agenda item for an executive session "identify the items of business and purposes of the executive session." (§ 311(B)(2)(b))
 
The Attorney General's Office has said government bodies must comply with this provision by citing more than attorney-client privilege.
 
"The public has a right to know what you are going to discuss in an executive session," the first assistant attorney general told public officials in November.
 
If the lawsuit has not been filed, then the agenda item should include "at least the nature of it," Rob Hudson said. "More is better."
 
But for the Aug. 6 meeting, the Healdton City Council refused to put on the agenda any information about the "pending litigation."
 
The council also apparently used the executive session to discuss hiring an independent contractor, i.e., an attorney specializing in human resources cases.
 
The Open Meeting Act's personnel exception does not permit closed-door discussions regarding the hiring of an independent contractor, such as an attorney, for professional services, the state attorney general said in 2005. (2005 OK AG 29, ¶ 13)
 
If such a discussion is not allowed under the personnel exception, it shouldn't be allowed under attorney-client privilege.
 
Even ignoring the AG's prohibition on executive session discussions of professional service contracts, how could the Healdton council's discussion fall under the attorney-client exception?
 
The same 2005 attorney general opinion also said:

"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." (¶ 11)

In other words, a public discussion of consulting or possibly hiring a human resources attorney would had to have "seriously impaired" the ability of the council to process the pending litigation in the public interest. That doesn't seem likely -- at least not if the words "seriously impair" are to have any meaning.
 
Ladd told The Ardmoreite that he will comment on the latest apparent violations as soon as practical.
 

 
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.

Healdton City Council agenda lists wrong statutory exemption, no item of business for executive session

The Healdton City Council met behind closed doors Monday night under the statutory exemption to discuss terrorism-related issues, The Ardmoreite reported.
 
But in the executive session, the council actually discussed hiring the state auditor to investigate the finances of the small town in south-central Oklahoma, the newspaper said.
 
The meeting agenda had not specified a reason for the executive session. It listed only, "Discuss with City Attorney pending investigation disclosure of which City Attorney has advised will impair the ability to proceed with pending investigation as provided by the Oklahoma Open Meeting Act (Title 25 307.B.9)."
 
Listing the wrong statutory authorization and not listing an item of business are apparent violations of the state Open Meeting Act.
 
Carter County District Attorney Craig Ladd told the newspaper he would wait to review information on the executive session before commenting.
 
The Open Meeting Act permits executive sessions for nine topics. The one listed on the agenda, OKLA. STAT. tit. 25, § 307(B)(9), is to discuss terrorism, e.g., "the investigation of a plan or scheme to commit an act of terrorism."
 
The agenda apparently should have cited Okla. Stat. tit. 25, § 307(B)(4), which allows confidential communications between a public body and its attorney "concerning a pending investigation, claim, or action."
 
Before the council entered the executive session, Ardmoreite reporter Michael Pineda objected, in part because the wrong statutory authorization was cited.
 
City Attorney Bob Pinkerton dismissed it as a misprint and the council proceeded on his advice, Pineda reported.
 
But the Open Meeting Act says public bodies may not enter into an executive session unless certain procedures are "strictly complied with." (§ 307(E))
 
For example, the agenda must "state specifically the provision ... authorizing the executive session." (§ 311(B)(2)(c))
 
The Healdton City Council agenda didn't state the correct statutory authorization for the executive session.
 
The Open Meeting Act also requires that the agenda item for an executive session "identify the items of business and purposes of the executive session." (§ 311(B)(2)(b))
 
The Attorney General's Office has said publicly since September that government bodies must comply with this provision by citing more than attorney-client privilege.
 
For example, Attorney General Scott Pruitt told a state board that its agenda was too vague when it listed an executive session "for the purpose of considering a settlement of a lawsuit(s)" under the attorney-client privilege.
 
Pruitt's top assistant reiterated that point at an open government workshop for public officials and others in Oklahoma City in November.
 
Rob 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.
 
For example, at least the nature of an impending lawsuit or claim should be listed, Hudson said.
 
"The public has a right to know what you are going to discuss in an executive session," said Hudson.
 
The agenda item should list information such as the name of the parties in the lawsuit, he explained.
 
"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."
 
Headlton officials should have listed the reason for the executive session.
 
After the meeting, Mayor David Smith confirmed for Pineda that a months-long investigation has found discrepancies in the town's finances. City Treasurer Karen Kardaleff was relieved of her duties Tuesday morning and placed on paid leave, Pineda reported.
 
The purpose of the Open Meeting Act is to "encourage and facilitate an informed citizenry's understanding of the governmental processes and governmental problems." (OKLA. STAT. tit. 25, § 302)
 
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)
 
Violating the Open Meeting Act is a crime punishable by up to one year in the county jail and a fine of up to $500.
 
In prosecuting a violation of the Open Meeting Act, the state need only prove a willful failure to comply. Criminal intent need not be proved, the Court of Criminal Appeals has said. (Hillary v. State, 1981 OK CR 78, ¶ 5)
 
The state Supreme Court has said, "Willfulness does not require a showing of bad faith, malice, or wantonness, but rather, encompasses conscious, purposeful violations of the law or blatant or deliberate disregard of the law by those who know, or should know the requirements of the Act." (Rogers v. Excise Bd. of Greer County, 1984 OK 95, ¶ 14)
 
The Act also does not require prosecutors to prove injury to establish a case, the Court of Criminal Appeals has said. (Hillary, ¶ 8)
 
In November, Hudson simply 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.

Washington County judge hears arguments on motion to dismiss Open Meeting Act lawsuit against Bartlesville Redevelopment Trust Authority

Oklahomans aren't entitled to sue over Open Meeting Act violations, the Bartlesville Redevelopment Trust Authority attorney argued before a judge Thursday.

Dan McMahan also contended that public bodies aren't required to explain on an agenda what specific investigation or lawsuit will be discussed behind closed doors.

An attorney for the plaintiffs argued that the BRTA had waived its right to file a motion to dismiss when it filed an entry of appearance.

"We should not even be here," said J. Schaad Titus.

Associate District Judge Russell Vaclaw said he would study the information presented by both sides and render a decision within 30 days.

(Read coverage of the hearing by The Bartlesville Examiner-Enterprise.)

Plaintiffs Joel Rabin and Sharon Hurst allege that the BRTA purposefully misled the public about the purpose of its Aug. 11, 2010, executive session, the real subject of which was not permitted in an 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.

In an e-mail sent a day earlier, BRTA Downtown Development Director Patrick Treadway told the seven members of the authority:

You will note that the first item on the agenda is an Executive Session which seems to indicate an investigation. There is not an investigation. This is on the agenda to allow Dan to give you information which he believes you need to have for future projects. Dan purposefully provided the language for this agenda item.

Dan is BRTA attorney Dan McMahan of Oklahoma City.

The lawsuit also has uncovered that despite an Open Meeting Act requirement, the BRTA did not keep minutes of its executive sessions.

In May, the BRTA filed a motion arguing that Rabin and Hurst have no right to sue to enforce the Open Meeting Act.

The BRTA contends that because the Open Meeting Act was enacted for the public's benefit, it does not create a special class of protected people who may sue for violations of the statute. It also argues that private individuals may not sue under the Open Meeting Act because the statute is silent regarding such a right.

In a response, Rabin and Hurst's attorney said the Oklahoma Supreme Court has already decided that no personal harm is required for a private person to sue a public body under the Open Meeting Act.

In a 2000 ruling, the Oklahoma Supreme Court said the state Senate could sue a state board over an alleged Open Meeting Act violation.

The state board had argued that the Senate "does not have the requisite 'personal stake' in the outcome [of the meeting at issue] and is therefore not a person 'aggrieved' by the Board's decision."

The Senate responded that "a violation of the Open Meeting Act ... is a public injury, so that proof of a direct, and immediate personal consequence to the Senate of the unlawful action, is not a necessary requisite to bringing the action."

Attorneys for Hurst and Rabin also point to 11 other appellate cases in which private citizens or an entity sought relief in civil court because of an alleged violation of the Open Meeting Act.

"Since the OMA's 1977 enactment, the appellate courts have tacitly acknowledged the right to bring a civil cause of action for OMA issue," wrote Jessica E. Rainey of Titus Hillis Reynolds Love Dickman and McCalmon in Tulsa.

At Thursday's hearing, McMahan also argued that agendas do not have to specify the "subject" of an executive session between a public body and its attorney to discuss "a pending investigation, claim, or action."

But Attorney General Scott Pruitt recently said in an informal opinion that a state public body's agenda was too vague under the Open Meeting Act when it listed an executive session "for the purpose of considering a settlement of a lawsuit(s)."

The meeting agenda should have listed the name of the parties in the lawsuit and a brief description of the litigation, Pruitt told the Commissioners of the Land Office.

But McMahan told the judge that revealing the subject of an "impending" lawsuit or investigation would give an unfair legal advantage to the other side.

McMahan's logic seems applicable only if the other side has no idea that it is the subject of a possible lawsuit or investigation requiring a discussion by a public body. How realistic is that?

McMahan's interpretation contradicts the language of the Open Meeting Act, which 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))

McMahan's version of the statute also would allow public bodies to discuss whatever they wanted behind closed doors because no objective evaluation would be possible to determine if the executive session had exceeded the statutory authorization.

Given the BRTA executive session at issue, perhaps that's what McMahan wants.

In January, the FOI Oklahoma Inc. board of directors approved a $1,000 grant to Rabin and Hurst, who are FOI Oklahoma members, to help support their costs of the Open Meeting Act lawsuit against the BRTA.

In March, the Bartlesville City Council allocated $30,000 to help pay the BRTA's legal expenses.


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.

AG says agenda item for executive session with attorney must list name of lawsuit being settled

A state agency's agenda was too vague under the Open Meeting Act when it listed an executive session "for the purpose of considering a settlement of a lawsuit(s)," Attorney General Scott Pruitt reportedly said in an informal opinion this week.

The meeting agenda should have listed the name of the parties in the lawsuit and a brief description of the litigation, Pruitt reportedly told the Commissioners of the Land Office.

This is important because other public bodies in the state, including the Oklahoma State Regents for Higher Education, Bartlesville Redevelopment Trust Authority, and Glenpool and Chickasha city councils, have been deliberately vague when conducting closed-door sessions with their attorneys.

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))

But 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))

However, rather than stating the specific investigation, claim or action to be discussed, these public bodies have provided only the specific statutory authorization for the proposed executive session.

Their attorneys contend that the Open Meeting Act exception is subject to the statute providing for the attorney-client privilege. In other words, these government lawyers contend attorney-client privilege trumps the agenda requirements under the Open Meeting Act.

In contrast, I have contended that the specific investigation, claim or action must be identified on the agenda as required by the Open Meeting Act. I am not alone in this understanding of the statute’s requirement.

Identifying the item of business on the agenda would not nullify or impair the attorney-client privilege, which shields from third parties the content, not the topic, of confidential communications between a client and attorney, said then-Stillwater attorney Doug Wilson. (He is now an assistant district attorney for Tulsa County.)

In fact, identifying the item of business on an agenda is no different from what attorneys must already do to withhold information under the state statute governing discovery in civil lawsuits, Wilson pointed out.

That statute requires the attorney to "describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection." (OKLA. STAT. tit. 12, § 3226(B)(5)(a))

Another attorney with experience in open government cases said identifying the claim "is extremely important."

"Absent the claim or case, the session has no limits. One can talk about whatever they want," said Michael Minnis of Doerner Saunders Daniel & Anderson L.L.P.

Listing the specific investigation, claim or action on the agenda is "intended to allow an initial objective evaluation that the proposed executive session meets the criteria of the cited statute and to allow a subsequent evaluation if someone objects that the executive meeting held under that agenda description exceeded the authorization," said Minnis.

"The latter refers to situations, for example, where the executive session discussed Case 1, not Case 2 as set forth in the agenda," he explained.

(For the complete explanation, read Glenpool City Council agenda omits specific item of business to be discussed with its attorney behind closed doors.)

In June, the district attorney for the Oklahoma Panhandle told a hospital board that public bodies must identify the nature of the claim or investigation on the agenda for an executive session under the Open Meeting Act's attorney-client privilege exemption.

"It is my opinion that the agenda item to consider an executive session must identify either the position or the individual who is the subject of the discussion or the nature of the investigation or claim to be discussed in the agenda that would apprise the public of the matters to be addressed in the executive session," said James M. Boring, district attorney for Cimarron, Texas, Beaver and Harper counties.

Attorney General Scott Pruitt seems to agree.

The Commissioners of the Land Office Sept. 8 agenda item listed simply "for the purpose of considering a settlement of a lawsuit(s)" when commissioners went behind closed doors to discuss a nearly $1.4 million settlement of a royalty case.

A former attorney for the public body objected to the agenda item as insufficient under the Open Meeting Act, reported the Tulsa World.

(The commissioners are Gov. Mary Fallin, Lt. Gov. Todd Lamb, State Auditor Gary Jones, State schools Superintendent Janet Barresi and Agriculture Secretary Jim Reese.)

Fallin's office asked Pruitt for an informal opinion and put the settlement on hold, the Tulsa World reported.

On Friday, Judy Copeland, Fallin's general counsel, told the newspaper:

The Attorney General's Office reviewed the agenda as the governor requested and determined that the agenda item did not sufficiently describe the matter. As a result, the CLO will place the item back on the agenda at its next regularly scheduled meeting so that action can be taken.

Pruitt's advice apparently will improve the commission's future agendas as well.

"In the future, we will list all parties of pending litigation," said Terri Watkins, a spokeswoman for the agency.

Other public bodies should take note of Pruitt's opinion and do so 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.

Legislator says he opposed bill expanding attorney-client privilege for government

Rep. Earl Sears says he doesn't know how his vote against HB 1559 ended up being recorded as a vote for the bill, which would have expanded the attorney-client privilege for governments in Oklahoma.

"I do not support HB 1559 and voted No and saw it as a RED NO," the Bartlesville Republican told the FOI Oklahoma Blog. "How it got green I will never know.

"I support open government 100 percent," said Sears in an email. "The public has the right to know what we are doing at all times when we are doing the people's business."

Click here to read more about HB 1559.

The House rejected the bill by a 35-64 vote on May 17.

Sears said he didn't know his vote had been recorded as one of the 35 for HB 1559 until he was contacted by a constituent.

"I do not agree with Rep. [Fred] Jordan, the author of this bill," Sears told the constituent in an email. "As a public official I should not hide anything from the public.

"I am glad this bill is dead, and I wish my vote was recorded as No, but it's a Yes," he said. "All I can tell you is I don't support this bill in anyway."


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

11 representatives live up to Open Government Pledge as House rejects bill expanding attorney-client privilege for government

Eleven House members lived up to their Open Government Pledge on Tuesday by voting against legislation that would have expanded the attorney-client privilege for government.

The House rejected HB 1559 by a 35-64 vote. The Tulsa World reports that its sponsor, Republican Fred Jordan of Jenks, kept the bill alive by sending it back to the House conference committee.

However, the Oklahoma Press Association official who lobbied against the measure said he believes it is dead for this session.

"Jordan told me he was through with the bill and would not be bringing it back up this session," said Mark Thomas, OPA executive vice president.

Unfortunately, among the voters for a bill that would have restricted the public's right to know were two pledge signers, Democrats Al McAffrey of Oklahoma City and Jeannie McDaniel of Tulsa.

As candidates for the House, McAffrey and McDaniel each 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."

McAffrey and McDaniel violated that pledge on Tuesday.

The bill they voted for would give local governments more power to keep documents confidential because it would erase statutory language limiting the circumstances under which public bodies may declare records protected by attorney-client privilege.

Specifically, HB 1559 seeks to amend a state statute that permits the attorney-client privilege for government records only when "the communication concerns a pending investigation, claim or action and the court determines that disclosure will seriously impair the ability of the public officer or agency to process the claim or conduct a pending investigation, litigation or proceeding in the public interest." (OKLA. STATE. tit. 12, § 2502 (D)(7))

The bill would remove that language, allowing the attorney-client privilege to be overcome only if the documents were sought by a multi-county grand jury.

The Oklahoma Municipal League supported the bill. The Oklahoma Press Association opposed it.

The bill also was opposed by councilmen Steve Harrison of McAlester and Tom Kovach of Norman, each of whom has signed the Open Government Pledge.

But credit for defeating this poorly written and wrong-headed legislation should go to the OPA's Thomas, who also is a member of the FOI Oklahoma board of directors.

Thomas, in turn, praised pledge signer Harold Wright of Weatherford for passionately imploring his fellow House members to kill the bill, calling it "bad public policy."

The expanded attorney-client privilege would be exploited by city councils and school boards, predicted Wright, who is a radio station owner, OPA member and former mayor.

Joining Wright in voting against HB 1559 were fellow pledge signers:

• John Bennett, R-Sallisaw
• David Dank, R-Oklahoma City
• Sally Kern, R-Oklahoma City
• Randy McDaniel, R-Oklahoma City
• Jason Murphey, R-Guthrie
• Todd Russ, R-Cordell
• Mike Sanders, R-Kingfisher
• Seneca Scott, D-Tulsa
• Emily Virgin, D-Norman
• Weldon Watson, R-Tulsa

Too bad Al McAffrey and Jeannie McDaniel didn't live up to their promise by doing so as well.

Here is the list of which House members voted for and against HB 1559.


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.