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Tulsa officials changed course Friday, releasing 911 recordings of two calls made following a state trooper-involved fatal shooting at a local motel, the Tulsa World reported today.
Police Chief Chuck Jordan and the city's Legal Department indicated that the decision to release 911 recordings is discretionary, not because the Open Records Act requires it.
"Due to the fact that it was a state issue, I spent much time in deliberation over the release of the recordings," Jordan said. "Tulsa Police Department remains committed to transparency and in the public interest we are now releasing the 911 recordings as requested by the Tulsa World."
The newspaper's editorial writers understandably said they are "puzzle[d] over the idea that there might be less reason for public access to public records because of 'a state issue.'"
For the reasons I gave Thursday, I disagree that Jordan can pick and choose which 911 calls to make public. But at least he decided to release these recordings, thereby avoiding an extended fight with the newspaper.
However, that wasn't the only open government problem at Tulsa City Hall.
The Tulsa World reported this morning that more than a month after the request, city officials haven't released "emails that could settle questions over how much Mayor Dewey Bartlett and his administration knew about problems in the city's green-waste program."
The newspaper asked for emails containing the phrase "green waste" sent or received in the last year by six city officials, including Bartlett, City Manager Jim Twombly and the city's lead trash managers.
City spokeswoman Michelle Allen told the newspaper that the city's Legal Department is reviewing each of the some 2,500 emails and attachments "for compliance (with the Open Records Act) and appropriate content to fulfilling the request."
According to the newspaper, Bartlett said the emails must be checked manually before being released because "we have a responsibility to the public to give the correct information and not disclose info that is personal in nature."
In 2006, then-Attorney General Drew Edmondson told The Oklahoman that an OSU policy requiring all public records requests to be cleared by school attorneys might violate the Open Records Act by not providing "prompt and reasonable" access.
"If that policy were challenged, then a judge would have to determine whether the circumstances within that particular agency are not only prudent but necessary," Edmondson said. "I would say that it is not typical and typically would not be found to be reasonable."
Under the Open Records Act, public bodies are required to "designate certain employees who are authorized to release records . . . for inspection, copying, or mechanical reproduction. At least one person shall be available at all times to release records during the regular business hours of the public body."
In a 2005 open records training video for police, Edmondson said:
That person should have a working familiarity with the Open Records Act and be able to respond to citizen inquiries for records. And that would mean in most instances, if not all instances, they should not have to ask someone else for permission or authority.
He acknowledged that the designated person could encounter "an unusual request" requiring the advice of an attorney.
"But that should be a rare exception," Edmondson said. "By and large, the person at the desk who is supposed to respond to open records requests should be able to do so without consultation with anybody else."
Tulsa city attorneys are reviewing records compiled by other employees. That adds an unnecessary -- and perhaps illegal -- delay in releasing public documents.
It also adds to the impression of a city administration that doesn't genuinely believe in transparent government -- a perception that Bartlett cannot afford eight weeks before he faces re-election.
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.
OSU President Burns Hargis won't release emails on his university account that are related to his job as a member of the Chesapeake Energy Board of Directors, with officials telling The Daily O'Collegian and The Wall Street Journal that the messages are private under the state Open Records Act.
But that refusal raises questions about Hargis' compliance with OSU policies (and state law) barring the use of the university's computer system for commercial purposes.
Hargis told The Daily O'Collegian that he didn't violate the policy. But as the newspaper pointed out today, Hargis' refusal to provide copies "makes verification impossible."
A government ethicist told the newspaper that not releasing the emails raises a "red flag"
indicating a potential conflict of interest between Hargis' jobs as OSU president and as a Chesapeake director for which he was paid a little more than $560,000 in 2011.
"This is what I call serving two masters," said Judy Nadler, a senior fellow in government ethics at the Markkula Center for ethics at Santa Clara University in California.
In May, a reporter for The Wall Street Journal requested Hargis' emails related to Chesapeake Energy Corp., apparently hoping they would shed light on operations by the nation's second-largest natural gas producer.
Chesapeake Energy's business practices have been under scrutiny since Reuters reported in April that CEO Aubrey McClendon had taken out up to $1.1 billion in unreported loans by using his stake in each of the company's wells as collateral.
OSU officials denied the reporter's request, saying that none of the 758 emails involved "the transaction of public business, the expenditure of public funds or the administration of public property."
The Daily O'Collegian made the same request in September. Same response.
Users of OSU's email services are put on notice "that under the Oklahoma Open Records Act all records that are created by, received by, under the authority of, or coming into the custody, control, or possession of the University or University officials presumptively are public records.
"Such records include messages stored in an electronic or magnetic format. All e-mail communications, therefore, unless subject to a specific statutory privilege, are subject to production under the Oklahoma Open Records Act and, when relevant, to discovery in civil litigation." (Use of Electronic Mail (Revised) (2002))
But OSU officials point to a 2001 attorney general opinion that said an email between government employees making lunch plans – if such use is permitted by the agency – generally would not be considered a public record because it would not be "in connection with public business, spending public money or administering public property." (2001 OK AG 46, ¶ 5 n.2)
So the questions are whether OSU policies permit using university email for Chesapeake Energy business and whether Hargis did so.
"No" is the answer to the first question.
OSU policies limit the use of email to furthering "the teaching, research, service, and extension goals and mission of the University." (Use of Electronic Mail (Revised) (2002))
"The use of university computing systems for commercial purposes is strictly forbidden," OSU's Use of Electronic Mail policy states. "The sending of electronic mail, which is commercial in character, is a violation of this acceptable use policy.”
Another policy states the university's "computing facilities, services, and networks may not be used in connection with compensated outside work for the benefit of organizations unrelated to the University except in connection with scholarly pursuits (such as faculty publishing activities) in accordance with the University consulting policy or the policy governing Access by External Entities to University Technology Resources, or in a purely incidental way.
"State law generally prohibits the use of University computing and network facilities for personal gain or profit, and use of computing resources for unauthorized commercial purposes, unauthorized personal gain, or any illegal activities is prohibited." (Appropriate Computer Use (1997))
The answer to the second question -- whether Hargis violated the policies (and state law) -- isn't clear.
Hargis told The Daily O'Collegian that he normally conducts Chesapeake business on his personal Gmail account and that he cannot control the email sent to his OSU account.
But he also refused to disclose the content of his OSU emails related to Chesapeake.
"If I'm not going to release the emails, I'm probably not going to talk about what they say," Hargis told The Daily O'Collegian.
Well, if they're only the equivalent of Hargis making lunch plans with Chesapeake officials, he would be better served by releasing the records.
Otherwise, relying upon a loophole in the Open Records Act raises suspicions that Hargis doesn't want to reveal the business of a for-profit corporation that was conducted over
a taxpayer-funded email system in violation of university policy and possibly state 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.
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.
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.
Committees advising the city of Norman would have to abide by the state Open Meeting Act and city emails would be kept for at least one year, under a proposal by Councilman Tom Kovach.
Kovach also wants executive sessions of the city's public bodies to be recorded.
His proposal is on the agenda for the City Council's regular meeting Tuesday.
Under what would become Norman's first records retention policy, "all records, written and electronic, shall be retained for at least 1 year unless there is pending litigation, in which case it will be retained for at least 2 years after the ultimate disposition or the resolution of the litigation."
"I have received stiff opposition to even this limited time," said Kovach. "Staff insists this will put a burden on our existing storage capacity and is trying to limit this. It not perfect but it is better than what they do now, which is delete every day."
Under Kovach's proposal, "all meetings of committees, sub committees and ad hoc committees" would be subject to the Open Meeting Act and to a state statute requiring that notices and agendas for regularly scheduled meetings be posted on the public body's website.
Kovach said this provision is intended to cover advisory committees, even those appointed by the mayor, regardless of whether they have actual or de facto decision-making power.
Kovach is one of five Norman council members to have signed FOI Oklahoma's Open Government Pledge as candidates. The others are Carol Dillingham, Hal Ezzell, Roger Gallagher and Mayor Cindy Rosenthal.
Each promised 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."
Kovach's proposal would do just that.
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.
Jet officials who pledged to comply with the letter and spirit of the state's open government laws now won't provide meeting agendas and minutes as simple email attachments.
Also, the town's copy fees posted on the wall at City Hall violate the Open Records Act. The town charges 50 cents for each page larger than 8 1/2 by 11 inches, according to the posted fees.
But the town may not charge more than 25 cents per page for uncertified paper documents 8 1/2 by 14 inches or smaller. (OKLA. STAT. tit. 51, § 24A.5(3))
A photo of the town's posted records fees was provided to the FOI Oklahoma Blog by Paul Blackledge, who has chronicled online his attempts to get computerized records from town officials.
Blackledge wants the agendas, as well as minutes, sent to him as email attachments so he can post them on a website he created to make town records available.
"I want to include the agenda with the regular meeting notice that the web site automatically displays a few days ahead of the regular meetings," he said. "This would provide a heads up notice for people away from home or for out of town property owners."
The town doesn't have its own website on which to post the agendas or minutes.
Town attorney E. W. "Bill" Shaw of Mitchell & DeClerck in Enid said the records won't be provided to Blackledge via email because the Open Records Act doesn't require it.
"The state law may permit, but does not require, the Town of Jet to release records by electronic means. If the state law changes to require the release of public records by electronic means, the Board will adopt an appropriate policy for the Town of Jet," Shaw told Blackledge in, ironically, an email.
In another email, Shaw noted that the Open Records Act states, "Except as may be required by other statutes, public bodies do not need to follow any procedures for providing access to public records except those specifically required by the Oklahoma Open Records Act." (OKLA. STAT. tit. 51, § 24A.2)
Of course, that's also the same section that begins with:
As the Oklahoma Constitution recognizes and guarantees, all political power is inherent in the people. Thus, it is 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. ... The purpose of this act is 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.
Shaw is correct that the statute doesn't require records be sent as email attachments. However, Shaw also seems to say the town doesn't have to provide records in an electronic format at all.
"51 O.S. §24A.3 is merely the definition which includes the form of records that may be maintained that are to be produced under the Act. It is not a requirement that records be produced in any particular form," Shaw said in an email.
But a 1999 attorney general opinion said that because "the Open Records Act does not distinguish between the form of public records," records must be provided "in whatever form they exist." (1999 OK AG 55, ¶ 23)
In a 2006 opinion, then-Attorney General Drew Edmondson said public agencies could not refuse to provide existing computer records in that format.
"There are no Oklahoma statutes or laws generally requiring public agencies or public officers to keep records in an electronic format," he noted. "However, if a governmental agency elects to keep its records in electronic format we believe that such agency must provide records under the Act in this format if so requested." (2006 OK AG 35, ¶ 19)
After Paul Blackledge got no where with Shaw, I wrote the following email to Town Board members Jim Blackledge, Carolyn Crossette and Clerk-Treasurer Donna S. Keller, each of whom had signed FOI Oklahoma's Open Government Pledge in April.
Dear Mr. Jim Blackledge, Ms. Carolyn Crossette and Ms. Donna S. Keller:
Paul Blackledge has contacted me about the City of Jet's refusal to supply him with meeting agendas and minutes via e-mail.
While the Open Records Act does not require records be made available via e-mail, the law does clearly require that records be made available in the format in which they exist.
Each of you signed FOI Oklahoma’s Open Government Pledge in which you 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.”
You also pledged that you and the City of Jet would comply “with not only the letter but also the spirit of Oklahoma's Open Meeting and Open Records laws.”
Given your public commitment to open government and the City of Jet’s apparent lack of a website on which to post these documents for easy access by the public, I am asking that meeting agendas and minutes be made available to Paul Blackledge as attachments to e-mail unless doing so is technologically impossible.
If the latter is the case, what obstacles cannot be overcome to provide the requested records via e-mail attachments? For example, are the meeting agendas and minutes created with a typewriter or in a computer format, e.g. a Word document?
Because you yourselves signed the Open Government Pledge, I am asking that you, not someone else, respond to my inquiry.
I look forward to working with you to resolve this issue.
Sincerely,
Joey Senat, Ph.D.
Instead of a response from them, I received the following e-mail from Shaw:
Mr. Senat,
As the attorney for the Town of Jet Oklahoma , I find your recent email to the town very offensive. What do you know about the town of Jet and the operation of the town government. Have you done anything other that listen to the gripes and complaints of the citizens named.
If the parties that you are so eager to support would use just have of the efforts they have expended in support rather that perpetual criticism, much could be accomplished. No citizen has been denied access to appropriate public records. The town is in compliance with the law.
Did you do any investigation before your contact dated May 6th or did you just take the information provided by a few and decide to join in their continuing antagonism of the town board. Your copying of your letter to the newspapers and others makes it clear that your intentions were to embarrass and attempt to pressure the town board with no concern for the town board and the antagonism that it has be subjected to for months from certain citizens who will be satisfied only if things are done their way.
From the tenor and content of your letter I must conclude that FOI Oklahoma really has no concern for truth, the law or responsible government.
Bill Shaw
E. W. "Bill" Shaw
Mitchell DeClerck
202 W. Broadway
Enid, Oklahoma 73701
580-234-5144
580-234-8890 (Facsimile)
My email was copied to Korina Dove, editor of the Cherokee Messenger Republican, because she had given the Open Government Pledge to the candidates for Jet's April election. The email also was copied to FOI Oklahoma President Bryan Dean, President Elect Lindel Hutson and Paul Blackledge.
As for responsible government, Jim Blackledge, Crossette and Keller could go a long way toward meeting that goal and living up to their pledge by using technology to make government more accessible.
Wouldn't cost the town a penny or much time. And it's simple. Use Google Docs to make the agendas and minutes available online. Create a Facebook page for the town to post the links.
If I can figure out these tools, certainly they could. As elected officials, they have an obligation to do so.
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications
