State officials refuse to release health care report from consultant

State officials are refusing to release a consultant's findings for a plan to cover people without health insurance, Oklahoma Watch reports.
 
The Oklahoma Health Care Authority is claiming the findings, though delivered to the state agency, are covered by an exemption in the state Open Records Act for "personal notes and personally created materials."
 
Oklahoma Watch noted that the state hired the consultant, Leavitt Partners, for $500,000 in January to review operations of the state’s Medicaid program, SoonerCare, as well as other states' health programs that would expand health coverage and improve health outcomes.
 
Oklahoma Watch said the final report would be released June 30 and incorporate feedback from state officials.
 
In the meantime, the Oklahoma Open Records Act contains no provision allowing governments to keep "drafts" secret from the public.
 
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)
 
An agency spokeswoman told Oklahoma Watch that the consultant’s draft report contains the findings of its months-long study.
 
Some of the findings and recommendations from the plan will be presented in a PowerPower slide-show presentation at the Oklahoma Health Care Authority's board meeting Thursday, Oklahoma Watch reports.
 
An Oklahoma Health Care Authority spokeswoman said the slide show will be released after the meeting.
 
But Howard Pallotta, general counsel for the Health Care Authority, told Oklahoma Watch that the agency does not have to immediately release the draft report or PowerPoint images in response to Oklahoma Watch's records request.
 
Pallotta's statement seems contrary to the Open Records Act and to a 2009 state Court of Civil Appeals decision ordering 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)
 
Oklahoma Health Care Authority officials concede that the state agency has received the report and is making use of it. In other words, state officials clearly possess and control the report.
 
The court in 2009 had also taken 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)
 
The Oklahoma Health Care Authority is "the primary entity in the state of Oklahoma charged with controlling costs of state-purchased health care." The seven members of the OHCA Board are appointed by the governor, Senate president pro-tempore and House speaker.
 
Time for these elected officials to tell their political appointees to cough up now the report already in the hands of OHCA.
 

 
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.
 

Oklahoma City School Board approves charter school agreement kept secret from public

Oklahoma City taxpayers didn't get to know the details of a charter school operating agreement for a new $11 million downtown elementary school until it was approved by the school board Monday night.

School district attorney Stephanie Mather and Board Chairperson Angela Monson had refused to release a copy to The Oklahoman on Friday even though the document had been given to school board members.

On Monday night, the board apparently approved the unprecedented agreement as it was recommended. Only then was a copy released to the public.

Mather and Monson claimed the agreement was a "working document" exempted from the Open Records Act.

But as I explained on this blog Saturday, that statute has no exemption for "working documents" or "drafts."

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 2004, a state trial judge ruled that information packets distributed along with agendas to members of a city council were open to the public under the Open Records Act.

"The pre-meeting packets are public records and the City cannot consider the entire packet exempt from disclosure under the Oklahoma Open Records Act," said Delaware County District Judge Barry Denney. "Only those portions deemed confidential pursuant to Statute may be redacted." (Shero v. City of Grove, No. CV-2004-57 (Delaware Co. Dist. Court) (Apr. 8, 2004))

In 2009, the Oklahoma Court of Civil Appeals held that a "draft" audit conducted by an independent auditor was not exempted under the Open Records Act. (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)

If Lawton city officials couldn't claim a "draft" exemption for an outside audit, then Oklahoma City school officials certainly weren't entitled to hide a document sent to the school board for a vote of approval.


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.

OKC public school officials refuse to release charter school agreement prior to school board vote Monday night

Oklahoma City school officials kept secret Friday the details of a proposed operating agreement between the district and a charter school group for a new $11 million downtown elementary school paid for with tax dollars.

School board members have the agreement in hand, but district officials refused to share it with the public until after the board's scheduled vote Monday night.

"It's a working paper going to be brought before the board for possible discussion and action," the district's legal counsel told The Oklahoman on Friday.

"We understand under the Open Records Act that until a document is finalized that working papers ... are not open records," Stephanie Mather told the newspaper. "They are not even records yet."

Wrong.

The Oklahoma Open Records Act contains no provision for "working documents" or "drafts."

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 Oklahoma City, the agreement between the public school district and the group of downtown business owners has been given to the eight school board members for their consideration and possible action during their regular meeting Monday.

Using the court's reasoning, that agreement should be open to the public now, not after the school board votes on it.

If Lawton officials couldn't claim a "draft" exemption for an outside audit, then Oklahoma City school officials certainly can't use that exemption to hide a document sent to the school board for a vote of approval.

In coming to its 2009 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, "disclosure is to be favored over a finding of exemption" when public bodies and courts rule on records requests, the Oklahoma Supreme Court said in 1986. (Tulsa Tribune Co. v. Okla. Horse Racing Comm’n, 1986 OK 24, ¶ 22)

But School Board Chairperson Angela Monson refused to give a copy of the agreement to The Oklahoman, calling it a working document.

Yet, Monson told the newspaper: "This is not a secret. This is not a secret document."

Wrong. It is a secret document if you don't let the public read until after you've voted on it.

Monson told the newspaper that the agreement itself expressly states that the two groups make any public announcements jointly.

Fine. The school board and charter school group may make all the joint announcements they want.

But the school district may not use that as a justification for hiding documents from Oklahoma City taxpayers. The school board's contracts and policies may not trump our state's Open Records Act. A school district may not simply write out of existence the public's right to know.

Given the reasoning by Monson and Mather, no document being considered by a public body would be available to the taxpayers until after the vote.

Providing access only to the agreement as approved by the school board is not enough. As the Court of Civil Appeals noted in 2009, the "draft" of a document "may or may not be the same as the final" version. (Id. ¶ 10)

Oklahomans are entitled to know beforehand the details of what a government body will be considering. Otherwise, the public has no opportunity to provide input to those elected officials prior to the decision being made.

Violating the Open Records Act is a misdemeanor punishable by up to one year in jail and a $500 fine.

The school district's refusal to provide the agreement is such an outrageous, willful violation of the Open Records Act as to warrant criminal prosecution.

And Mather's "advice" so clearly contradicts the Open Records law that it warrants an Oklahoma Bar Association complaint being filed against her.

Otherwise, these government officials will continue to flout our state laws intended to ensure they operate transparently.


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.