Stillwater school district drops search fee, $250 deposit for copies of calendar committee's emails

A Stillwater parent says the school district sent a CD of requested committee emails without mentioning a $250 deposit or search fee.

An attorney for the district had told Mitsi Andrews she would have to pay the deposit before the district would begin compiling the emails for her inspection.

Andrews wanted to read the emails, text messages and other correspondence in which members of a school district committee discussed a controversial school calendar. She asked to inspect the emails after being told by Superintendent Ann Caine that no minutes existed for the committee's meetings.

Caine had also refused to identify all the members of the committee. (Read related posting.)

The attorney had told Andrews all the collected documents would have to be reviewed by district personnel or his Tulsa law firm for exempted material.

"The District believes your ORA request would clearly cause excessive disruption of the District's essential functions," said Kent B. Rainey of Rosenstein, Fist & Ringold.

Therefore, he said, Andrews would be charged a "fee to recover the direct cost of the document search." (The district charges a search fee of $25 per hour, according to its open records policy.)

But the Open Records Act prohibits a search fee in these circumstances, stating:

In no case, shall a search fee be charged when the release of records is in the public interest, including, but not limited to, release to the news media, scholars, authors and taxpayers seeking to determine whether those entrusted with the affairs of the government are honestly, faithfully, and competently performing their duties as public servants. (OKLA. STAT. tit. 51, § 24A.5(3))

The district's open records policy echoes that language, saying, "Search fees shall not be charged for records sought in the public interest, including, but not limited to releases to the news media, scholars, authors, and taxpayers seeking to determine whether officials of the district are honestly, faithfully, and competently performing their duties as public servants."

Andrews' request certainly fits within this provision. She had requested records that could reveal the pros and cons discussed by a committee that did not meet publicly and that was told to keep quiet about the proposal it was developing.

Andrews said one of the emails she received had told district representatives on the committee that Caine didn't want them discussing it with anyone else.

"Mums the word until the calendar is proposed," Andrews said the email instructed.

But a more transparent process could have addressed parental objections as the policy was developed, not after it was announced, and allayed parent and student anxiety about radically changing the school calendar.

As it was, the school board voted to keep the traditional school calendar for 2012-13 because of parents' concerns and to consider the continuous learning academic calendar for the following year.

Caine told the Stillwater Journal last month that she planned to reconvene the committee to make a fresh start designing a calendar that takes into account the concerns revealed in a parent survey.

Perhaps the process will be more open this time around.


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.

Stillwater school district charges search fee, $250 deposit to inspect emails of committee that proposed controversial school year calendar

A Stillwater parent wants to read the emails, text messages and other correspondence in which members of a school district committee discussed a controversial calendar that the school board appears ready to adopt for 2013.

Mitsi Andrews asked to inspect the emails after being told by Superintendent Ann Caine that no minutes existed for the committee's meetings.

Caine and the district won't even tell Andrews the names of all the committee members. (Read the related posting.)

And an attorney for the district now says Andrews has to pay a $250 deposit before the district will begin compiling the emails for her inspection.

And the cost includes a search fee, said Kent B. Rainey of Rosenstein, Fist & Ringold.

Yes. Another school district represented by this Tulsa law firm wants to charge a search fee to disclose records clearly in the public interest -- even though the state Open Records Act clearly prohibits such a fee in such circumstances.

In a letter to Andrews, Rainey said a search of archived emails from July 1 to Dec. 8 found 897 with "calendar committee" in the body. Nearly 21,000 emails were found with "calendar" in the body.

Rainey said the district doesn't archive employee text messages so the 36 district employees on the committee will have to be asked for such messages. He said a method of retrieving the messages would have to be determined.

Rainey said 15 non-district employees serve on the committee. He said those members will have to be asked for emails, text messages and other correspondence that they exchanged among themselves but not with district employees.

(How could the district contact those non-employees if it doesn't have a record of their names?)

All the collected documents will have to be reviewed by district personnel or his law firm for exempted material, he said.

For these reasons, Rainey said, "The District believes your ORA request would clearly cause excessive disruption of the District's essential functions."

Therefore, he said, Andrews will be charged a "fee to recover the direct cost of the document search."

But the Open Records Act prohibits a search fee in these circumstances, stating:

In no case, shall a search fee be charged when the release of records is in the public interest, including, but not limited to, release to the news media, scholars, authors and taxpayers seeking to determine whether those entrusted with the affairs of the government are honestly, faithfully, and competently performing their duties as public servants. (OKLA. STAT. tit. 51, § 24A.5(3))

Andrews' request certainly fits within this provision. She has requested records that can reveal the pros and cons discussed by the committee, and which, if any, alternatives were rejected and for what reasons.

In June 2010, another school district represented by Rosenstein, Fist & Ringold tried to charge a $90 search fee for copies of the district’s itemized legal bills.

The Broken Arrow Public Schools superintendent at the time considered the records request to be "an excessive disruption of the business of the school" because Rainey charged the district for the three hours to redact exempted information from 17 legal bills submitted during a seven-month period.

Current BAPS Superintendent Jarod Mendenhal not only rescinded the search fee when he took office a week later but also agreed that one shouldn't have been charged in the first place. A district spokesman said:

Clearly the Act says in 'no' case shall a search fee be charged when the release of records is in the public interest, including but not limited to, release to the news media, scholars, authors and taxpayers seeking to determine whether those entrusted with affairs of governments are honestly faithfully, and competently performing their duties as public servants.

Most requests fall under that description meaning a search fee can’t and won’t be charged. If a request for commercial uses causes an excessive disruption of the business of the district, it could be assessed a search/administrative fee per the Open Records Act.

Because the Stillwater school district is represented by Rosenstein, Fist & Ringold, it is useful to review legal arguments made by the Broken Arrow superintendent who tried justify a search fee.

Gary Gerber had pointed to this comment by the Oklahoma Court of Appeals in a 1995 case:

We observe that the public interest is as equally well served by public agencies performing their essential services without burdensome, disruptive records requests as in providing release of information to tax payers. (McVarish v. New Horizons Cmty. Counseling and Mental Health Servs. Inc., 1995 OK CIV APP 145, ¶ 3)

In McVarish, the court had quoted with apparent approval the trial judge’s conclusion that "whether or not there's any public purpose or whether it's a matter of a private vendetta ... I think what the legislature was perhaps trying to say was if there's going to be some sort of substantial disruption of business of the public agency then a fee is not improper."

But the trial court had "clearly overstepped its judicial authority" with its interpretation, said an attorney serving on the FOI Oklahoma Inc. board of directors in 2010.

"Clearly, § 24A.5 says no such thing," said Doug Wilson, who won several Open Records Act cases before becoming an assistant district attorney for Tulsa County.

Indeed, McVarish was not mentioned in subsequent attorney general opinions on the meaning of "In no case, shall a search fee be charged when...."

In a 1996 opinion, state Attorney General Drew Edmondson described that language as a "legislative warning," saying:

Should a public body choose to charge a search fee it should proceed with caution in view of the legislative warning set forth in the Act which provides in pertinent part: 'In no case shall a search fee be charged when the release of said documents is in the public interest, including, but not limited to, release to the news media, scholars, authors and taxpayers seeking to determine whether those entrusted with the affairs of the government are honestly, faithfully, and competently performing their duties as public servants.' (1996 OK AG 26, ¶ 13 (quoting OKLA. STAT. tit. 51, § 24A.5(3))

Using absolute terms of his own in a 1999 opinion, Edmondson said, "Further, a search fee cannot be charged when release of public records is in the public interest, such as release to the news media, scholars, authors or taxpayers seeking to determine if government affairs are being properly performed." (1999 OK AG 55, ¶ 15)

Legislative intent also had been "quite clear" to then-Attorney General Robert H. Henry in 1988, when he said public bodies could not charge a search fee to reporters investigating government operations.

"[T]here is no situation under which a member of the news media may be lawfully charged a search fee by a public body," he said. "51 O.S. 24A.5(3) … is quite clear on that point when it decrees 'in no case' may such search fees be assessed in such circumstances." (1988 OK AG 35, ¶ 6 (citing OKLA. STAT. tit. 51, § 24A.5(3))

That prohibition on search fees would seem to apply to Andrews' request given that the same sentence in the statute includes both the news media and "taxpayers seeking to determine whether those entrusted with the affairs of the government are honestly, faithfully, and competently performing their duties as public servants."


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.

Glenpool charging more than $1,400 for set of city official's emails

A Glenpool real estate developer would have to pay more than $1,400 to receive copies of the city manager's e-mails for a seven-week period, according to documents provided to the FOI Oklahoma Blog.

Keith Jones said he believes the emails "will prove" that City Manager Ed Tinker and two other Glenpool officials "should not be employed by the City of Glenpool."

On Monday, the City Council is scheduled to discuss hiring an outside attorney "regarding indefinite but possible future actions of the Council with respect to the employment of the City Manager."

Jones requested emails sent from Assistant City Manager David Tillotson and City Planner Rick Malone to Tinker from April 1 to May 20 and all of Tinker's emails during that time.

Jones has been told to pay the $1,200 that Aktec Computer Solutions charged the city for 14.5 hours retrieving the emails and $200 for the Tulsa company to print 1,051 pages, according to the company's invoice to the city.

Jones, who writes a blog commenting on Glenpool issues, will be charged a $15-per-hour search fee for City Attorney Lowell L. Peterson "to review the resulting emails to determine whether any are subject to confidential privilege," according to a June 17 email from Peterson to Jones.

However, the state Open Records Act prohibits search fees being charged to "taxpayers seeking to determine whether those entrusted with the affairs of the government are honestly, faithfully, and competently performing their duties as public servants.” (OKLA. STAT. tit. 51, § 24A.5(3))

Jones said he isn't sure what final amount he will be asked to pay for the emails and hasn't decided whether to pay the $1,400 or appeal to the City Council.

"I'm waiting to see if the city council takes action against the city manager over the next two city council meetings," he said in an email Saturday.

Jones had asked to inspect the emails, but in the June 17 email, Peterson said:

The City is not going to allow you (or any other requester) to examine emails on-screen. This means it will be necessary for someone to retrieve and print both archived and currently stored emails. The charge for such printing will be identical to that of providing copies.

However, the state Open Records Act states that unless a statutory exemption applies, "All records of public bodies and public officials shall be open to any person for inspection, copying, or mechanical reproduction during regular business hours." (OKLA. STAT. tit. 51, § 24A.5)

Jones requested the emails on May 24. In an email June 16, Jones asked City Clerk Susan White when the emails would be available for viewing. "I think eighteen (18) working days is adequate time to allow me to view these records," Jones said in the email.

Peterson responded:

We have neither a duty nor a policy of reporting our office operations to you. Our obligation ends with complying with the Open Records Act and that does not include explaining delays to you.

Notwithstanding that fact, and not hereby setting any precedent of explaining ourselves to you, I will inform you of the following:

• For a portion of the time since your request, Ms. White was out of town and unable to give this her attention.
• As to another staff person being designated to reply to your request in Ms. White’s absence, that person has been preoccupied with a competing records requests that has literally numbered in multiple thousands of documents. That alone is a legitimate cause for the delay you have experienced.

Peterson said that based on requests for emails, "not just from you and not singling you out for any kind of disparate treatment, we are instituting a more formalized procedure regarding email requests."

"Don’t bother asking for a copy of a 'policy' as adopted by the City Council because this is an internal administrative decision that is outside the scope of Council oversight," Peterson added.

In a July 12 email, Peterson said Jones would have to pay the $1,400 before the city would complete his records request.

"Charges thus far do not include staff time for internal review to ensure compliance with all provisions of the Open Records Act," said Peterson.

Jones had already paid a $120 deposit, which Peterson said would be "applied to the final computation of charges."

Once the $1,400 payment is received, the records would be available "both in written and electronic format as requested, within two business days," Peterson said.

"If you advise us that you do not wish to proceed any further with this matter, or if we do not hear from you within 30 days from today’s date, we will not expend any more time on the request and your $120.00 deposit will be returned," he said.

Under the Open Records Act, public bodies "may charge a fee only for recovery of the reasonable, direct costs of record copying, or mechanical reproduction." (OKLA. STAT. tit. 51, § 24A.5(3))

In 1992, the state Supreme Court said the "reasonable, direct costs" for copying computer records should be "based upon the cost of materials [and] labor needed for providing the computer program and service to produce the requested data." (Merrill v. Oklahoma Tax Com'n, 1992 OK 53, ¶ 13)

Taking into account that decision and the statute’s admonition that fees are not to be used to discourage requests, a 1996 attorney general opinion said, "Public bodies . . . may only recover the cost of materials and labor specifically incurred in reproducing existing computer records in a computer-readable format. This means the public body could charge for:

• "The storage media used, including disk, tape, or other format unless provided by the requestor;
• Any access or processing charges imposed upon the public body because of the request;
• Any hardware or software specifically required to fulfill the request and reproduce the record in computer-readable format which would not otherwise generally be required or used by the public body; and
• The cost of labor directly attributable to fulfilling the request." (1996 OK AG 26, ¶ 10. See also 2005 OK AG 21, ¶ 11 (reaffirming 1996 OK AG 26))

"The public body would not, however, be able to charge for:

• Hardware or software or a percentage thereof which is otherwise generally required or used by the public body for day-to-day operations;
• Storage, processing or access charges not specifically linked to the request;
• Maintenance and materials generally required by the public body for day-to-day operations and not directly resulting from the request.

"In the context of a request for a paper record, this is like a public body being unable to charge for (1) a percentage of the cost of a typewriter or copying machine used to make the copies; (2) the cost of archiving and storing the records; or (3) the cost of fixing a copier which broke while copying a record," the opinion said.

A "per-page fee may not be charged for electronic copies of records which are kept in a computer-readable format," a 2005 attorney general opinion said. (2005 OK AG 21, ¶ 11)

The Open Records Act says fees "shall not be used for the purpose of discouraging requests for information or as obstacles to disclosure of requested information." (OKLA. STAT. tit. 51, § 24A.5(3)(b))


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.

BA's new school superintendent says district will comply with letter, spirit of state Open Records Act

Broken Arrow's new school superintendent today expressed a commitment to the "spirit of full transparency and openness" by the district's administration and officially waived a $90 search fee for records.

“The Open Records Act is not a theory or hypothesis,” Jarod Mendenhall said in a news release. “It is the law, and we will follow it to the best of our ability.”

Mendenhall's predecessor, Gary Gerber, had authorized the $90 search fee for redacting information from copies of the district's itemized legal bills.

Gerber, who retired Wednesday, had refused to recognize the requester as a taxpayer seeking to ensure that district officials are properly doing their jobs.

Under the state Open Records Act, a search fee cannot be charged to "taxpayers seeking to determine whether those entrusted with the affairs of the government are honestly, faithfully, and competently performing their duties as public servants." (OKLA. STAT. tit. 51, § 24A.5(3))

Mendenhall agreed that statutory prohibition on search fees applied to this request and waived the $90.

“I want to make it clear that the school district will charge a search fee per Open Records Act allowances if it is determined that the request would cause excessive disruption of the business of the district and cause several people to be taken from their customary jobs and from the business of the people to produce the requested information,” Mendenhall added.

District spokesman Keith Isbell clarified that Mendenhall was referring to commerically motivated records requests, which may be charged a search fee under the Open Records Act.

"Clearly the Act says in 'no' case shall a search fee be charged when the release of records is in the public interest, including but not limited to, release to the news media, scholars, authors and taxpayers seeking to determine whether those entrusted with affairs of governments are honestly faithfully, and competently performing their duties as public servants," Isbell said in an e-mail.

"Most requests fall under that description meaning a search fee can’t and won’t be charged," he said. "If a request for commercial uses causes an excessive disruption of the business of the district, it could be assessed a search/administrative fee per the Open Records Act."

Not charging a search fee to every commercial request is commendable and evidence of Mendenhall's commitment to open government.

"Make no mistake; we work for the taxpayers of this community and this state," Mendenhall said, adding:

People have the right to know and be fully informed about us and all governmental entities, and I can assure you that Broken Arrow Public Schools will do all that it can to be open and transparent in its operations, and that includes doing our very best to follow the spirit and regulations of the Oklahoma Open Records Act.

Mendenhall has certainly talked the talk. So far, he's walking the walk. That's good news for Broken Arrow's students and their parents.

Joey Senat, Ph.D.

Associate Professor

OSU School of Media and Strategic Communication

New BA school superintendent waives search fee for copies of district's itemized legal bills

Broken Arrow's new school superintendent has waived the $90 search fee to redact information from copies of the district's itemized legal bills, says the woman who requested the records.

Beth C. Snellgrove said she received a phone call about noon today from district spokesman Keith Isbell, telling her that the new superintendent, Jarod Mendenhall, has waived the fee.

The fee was authorized by Gary Gerber, who retired today as superintendent.

Mendenhall's decision came after the FOI Oklahoma Blog's initial posting on the search fee last Thursday and an editorial and online article in The Broken Arrow Ledger today.

In the article, Gerber questioned Snellgrove's motive for requesting the records.

“Only Ms. Snellgrove knows her true motives for making the open records act request," he told the reporter.

"I don’t believe that Ms. Snellgrove’s request can be viewed in a vacuum," he said. "The timing of her request did raise eyebrows, as it came after the Sperry School District hired Ms. Snellgrove’s husband for what, I understood, to be a newly created position at Sperry. You will have to decide if this is reflecting a personal interest on her part rather than a public interest."

The reporter noted that Jim Sisney, who was dismissed as superintendent by the Broken Arrow Board of Education in 2008, is the superintendent of Sperry Public Schools.

This morning, the reporter asked me for a reaction to Gerber's comments. My response:

Ms. Snellgrove’s husband’s job for another school district would have no bearing on her status as a taxpayer and parent of children in Broken Arrow schools in making sure that district officials “are honestly, faithfully, and competently performing their duties as public servants.”

I asked Mr. Gerber twice if he considered the release of the itemized legal bills to be in the public interest. He wouldn’t answer the question. To say it’s not in the public interest would be idiotic and reveal him to be a petty bureaucrat. To say it is would be acknowledging that he couldn’t charge the search fee.

Mr. Gerber’s comments indicate he is charging the search fee because he has a personal grudge against Ms. Snellgrove rather than legitimate reasons under the state Open Records law.

Mr. Gerber’s response to this request leave me wondering how other people are treated when they ask the Broken Arrow school district for information that belongs to them – the public.

By waiving the fee, Mendenhall has taken a step in the right direction on what I suspect will be a long road to true transparency for Broken Arrow public schools.


Joey Senat, Ph.D.
Associate Professor
OSU School of Media and Strategic Communication

BA school district needs lesson in transparency, newspaper says

A $90 search fee for copies of the Broken Arrow school district's itemized legal bills serves only as a deterrent to taxpayers checking up on their government, the executive editor of The Broken Arrow Ledger writes in a column today.

"This decision to charge does nothing to promote openness and transparency from a school district that has been mired in controversy the last few years," wrote William Swaim. "It makes it that much harder for the average taxpayer to make a legitimate request — in fact, it’s a deterrent."

The FOI Oklahoma Blog reported Thursday that Broken Arrow Public Schools Superintendent Gary Gerber authorized a $90 search fee for copies of the district’s itemized legal bills in part because the taxpayer's request lacked a "direct relationship to the education of students."

Gerber told the requester, Beth C. Snellgrove, the fee also was based on “the nature and scope of the request” and “the apparent relationship of the request to the School District’s litigation with a former employee, of whom you are an adamant supporter.”

In short, Gerber discounted the taxpayer as someone seeking to ensure that district officials are properly doing their jobs. The state Open Records Act prohibits charging a search fee to such requesters.

Swaim called Gerber's third justification "appalling."

"Gerber might as well have come out and said, because Snellgrove supported former superintendent Jim Sisney, that she was on the wrong side of the issue and therefore should have to pay for it," Swaim wrote.

To read Swaim's full column: BA school district needs lesson in transparency

To read the full FOI Oklahoma Blog posting: BA school district charges $90 search fee to redact from legal bills, says records request posed excessive disruption, not pertinent to education


Joey Senat, Ph.D.
Associate Professor
OSU School of Media and Strategic Communication

BA school district charges $90 search fee to redact from legal bills, says records request posed excessive disruption, not pertinent to education

Broken Arrow Public Schools Superintendent Gary Gerber authorized a $90 search fee for copies of the district’s itemized legal bills in part because the taxpayer's request lacked a "direct relationship to the education of students,” he said.

In a June 16 letter to the records requester, Gerber also justified the fee based on “the nature and scope of the request” and “the apparent relationship of the request to the School District’s litigation with a former employee, of whom you are an adamant supporter.”

In short, Gerber discounted the taxpayer as someone seeking to ensure that district officials are properly doing their jobs. Under the state Open Records Act, a search fee cannot be charged to "taxpayers seeking to determine whether those entrusted with the affairs of the government are honestly, faithfully, and competently performing their duties as public servants.” (OKLA. STAT. tit. 51, § 24A.5(3))

Instead, Gerber considered the records request to be “an excessive disruption of the business of the school” because an attorney charged the district for the three hours to redact exempted information from 17 legal bills submitted during a seven-month period.

The school district’s detailed legal bills have been a FOI-issue since 2008 when Broken Arrow resident Chris Tharp and others requested them. District officials wouldn't provide the detailed billing records for the services provided.

(Tharp was recognized by FOI Oklahoma Inc. in March for his efforts to make the bills public. Read related blog postings.)

The amount spent by the school district on legal fees rose from $8,500 in fiscal year 2007-08 to more than $200,000 in 2008-09, said Tharp.

He hired an attorney, who in June 2009 requested documents demonstrating what legal services the Tulsa law firm Rosenstein, Fist & Ringold had provided for the district since being hired on Aug. 6, 2008.

After the school board hired an attorney for advice, it voted unanimously in late August 2009 to release the itemized bills to Tharp.

Tharp says he was not charged a search fee when the records were provided.

On Feb. 16, Beth C. Snellgrove requested the itemized legal bills submitted by Rosenstein, Fist & Ringold from July 1, 2009, to the date of her request.

She received an invoice of $12.50 (50 pages at 25 cents each) for copying and $90 for “3 hours administrative time to prepare request.”

Snellgrove said that when she had requested copies of the records provided to Tharp, the district did not charge her a search fee.

“That is why I did not expect there to be any search or administrative fees for my most recent Open Records Request for itemized legal bills,” she said.

Snellgrove said she hasn’t picked up these documents because she can’t afford the $90 fee.

The district’s fee schedule lists “$30 per hour for administrative time” in connection with charging a search fee.

If a search is necessary to furnish the documents and if this request is solely for commercial purposes or if the request is going to cause excessive disruption of the business of the School District, the person or organization making the request agrees to pay a search fee of $9.00 per hour for secretarial time; $30.00 per hour for administrative time; $100.00 per hour for computer query or programming (all calculated on quarter-hour increments).” (Policies/Section II- Community Relations/Fee Schedule for Duplication of and Search for School Records)

In accordance with the state Open Records Act, the district policy also states,

A search fee shall not be charged when the release of documents is in the public interest, including, but not limited to, release to the news media, scholars, authors and taxpayers seeking to determine whether those entrusted with the affairs of the government are honestly, faithfully, and competently performing their duties as public servants. (Policies/Section II- Community Relations/Production of Public Records)

In an e-mail June 10 to district spokesman Keith Isbell, I asked if the district contended that Snellgrove is not a taxpayer “seeking to determine whether those entrusted with the affairs of the government are honestly, faithfully, and competently performing their duties as public servants."

Gerber responded with a letter to Snellgrove, saying, “We believe this question to be misplaced.”

Gerber pointed to a 1995 Oklahoma Court of Appeals case stating, “Whether a records request is in the ‘public interest’ does not turn on the bare allegations and mere say-so of the requesting party, but is a question to be determined in light of the circumstances of the case.” (McVarish v. New Horizons Cmty. Counseling and Mental Health Servs. Inc., 1995 OK CIV APP 145, ¶ 3)

Gerber added:

In considering the totality of the circumstances surrounding your request, consideration was given to (a) the nature and scope of the request, (b) the request’s lack of direct relationship to the education of students at the School District, and (c) the apparent relationship of the request to the School District’s litigation with a former employee, of whom you are an adamant supporter.

Gerber’s reasoning seems flawed for the following reasons:

1. The “nature and scope of the request” would be similar to Tharp’s, which the school board voted 5-0 to fulfill. Tharp said he was NOT charged a search fee for the redacted copies he received.


2. Tharp and the citizens group Broken Arrow Parents for Truth wanted the legal bills to determine if the school board “is spending taxpayers’ money wisely, and not to the detriment of the overall purpose for BAPS – education.”
   
   Why wouldn’t the same reasoning apply to Snellgrove’s request?
   
   A review of legal bills could help reveal incompetency, dishonesty and other problems with the administration of the school district. Certainly, that has a “direct relationship to the education of students.”
   
   Also to be considered is 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.” (OKLA. STAT. tit. 51, § 24A.2)


3. As for Gerber’s third reason, FOI Oklahoma Inc. board member Doug Wilson said:
   

   In a world comprised of differing opinions, it would clearly be unreasonable for the School District to draw a line in the sand and say that the release of records to those people who support its actions is in the public interest but the release of records to those who do not support its actions is not in the public interest.

In justifying the search fee, Gerber also pointed to this comment by the court in McVarish,

We observe that the public interest is as equally well served by public agencies performing their essential services without burdensome, disruptive records requests as in providing release of information to tax payers.

However, the court in McVarish noted that the request at issue encompassed some 4,300 documents, which the community mental-health agency estimated would take three employees a week to compile.

In contrast, Snellgrove’s request required a review of 17 legal bills that took three hours, according to Gerber.

Gerber’s reliance on McVarish in this instance might be misplaced, said Wilson, an attorney who has won open records lawsuits against county assessors.

In McVarish, the Court of Civil Appeals had quoted with apparent approval the trial judge’s conclusion that “whether or not there’s any public purpose or whether it’s a matter of a private vendetta . . . I think what the legislature was perhaps trying to say was if there’s going to be some sort of substantial disruption of business of the public agency then a fee is not improper.”

Wilson said the trial court had “clearly overstepped its judicial authority” with its interpretation.

“Clearly, § 24A.5 says no such thing,” Wilson said.

Indeed, McVarish was not mentioned in subsequent attorney general opinions on the meaning of “In no case, shall a search fee be charged when the release of records is in the public interest, including, but not limited to, release to the news media, scholars, authors and taxpayers seeking to determine whether those entrusted with the affairs of the government are honestly, faithfully, and competently performing their duties as public servants.”

In a 1996 opinion, state Attorney General Drew Edmondson described that language as a “legislative warning,” saying:

Should a public body choose to charge a search fee it should proceed with caution in view of the legislative warning set forth in the Act which provides in pertinent part: ‘In no case shall a search fee be charged when the release of said documents is in the public interest, including, but not limited to, release to the news media, scholars, authors and taxpayers seeking to determine whether those entrusted with the affairs of the government are honestly, faithfully, and competently performing their duties as public servants.’ (1996 OK AG 26, ¶ 13 (quoting OKLA. STAT. tit. 51, § 24A.5(3))

Using absolute terms of his own in a 1999 opinion, Edmondson said, “Further, a search fee cannot be charged when release of public records is in the public interest, such as release to the news media, scholars, authors or taxpayers seeking to determine if government affairs are being properly performed.” (1999 OK AG 55, ¶ 15)

Legislative intent also had been “quite clear” to then-Attorney General Robert H. Henry in 1988, when he said public bodies could not charge a search fee to reporters investigating government operations.

“[T]here is no situation under which a member of the news media may be lawfully charged a search fee by a public body,” he said. “51 O.S. 24A.5(3) … is quite clear on that point when it decrees ‘in no case’ may such search fees be assessed in such circumstances.” (1988 OK AG 35, ¶ 6 (citing OKLA. STAT. tit. 51, § 24A.5(3))

That prohibition on search fees would seem to apply to Snellgrove’s request given that the same sentence in the statute includes both the news media and “taxpayers seeking to determine whether those entrusted with the affairs of the government are honestly, faithfully, and competently performing their duties as public servants.”

Asked if Gerber didn’t consider disclosure of the legal bills to be in the public interest, Isbell responded:

Dr. Gerber points out the records in question are and have been available for release since March (2010) subject to the receipt of the fees previously detailed and agreed to by Ms. Snellgrove. Dr. Gerber points out that Ms. Snellgrove has so far failed and neglected to obtain the records.

The district’s form for requesting records lists the fees for a search if the request is for a commercial purpose or would “cause excessive disruption of the business of the School District.”

District officials neglected to include the provision that “In no case, shall a search fee be charged when. . . .”

Even if a court were to say that release of the itemized legal bills would not be in the public interest, a search fee could be charged to Snellgrove only if her request “would clearly cause excessive disruption of the public body’s essential functions.” (OKLA. STAT. tit. 51, § 24A.5(3))

Under the district’s policy, the superintendent decides if the request would cause an excessive disruption. The policy states,

Such a determination is made in light of the totality of the circumstances involved with each request, and factors to be considered include: (a) the number of documents sought, (b) their page lengths, (c) the number of employees who will be involved in the search, (d) the length of time that it will take to assemble the documents, (e) whether employees will be required to redact confidential information from documents, and (f) whether the request will divert staff from their regular jobs.

However, as Gerber noted, the redaction was done by attorney Kent B. Rainey of Rosenstein, Fist & Ringold.

In other words, Snellgrove’s request required the review of 17 legal bills by one outside attorney for three hours and no district employees were diverted from their regular jobs -- hardly an excessive disruption of the district’s essential functions.

The fact that Rainey charged the school district $190 per hour is irrelevant.

“Since a third party did the redacting, there is simply a monetary expense to the School District, and the statute talks about disruption, not expense,” explained Wilson.

Money wasn’t an issue for the school board in early June when it approved a $14,000 bonus for Gerber, whose annual salary is $140,000.

Gerber retires June 30 after a 36–year career in various jobs with the district. His replacement is Jarod Mendenhall, a former Union Public Schools assistant superintendent.

Broken Arrow Public Schools policy gives the superintendent nearly unfettered discretion in deciding which release of records is in the public interest and which requests pose an excessive disruption.

Perhaps Mendenhall will keep the letter and spirit of the Open Records Act in mind when he makes those decisions.

“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.” (OKLA. STAT. tit. 51, § 24A.2)

In the meantime, Gerber -- or the school board -- should reconsider charging the $90 search fee for Snellgrove's request.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

Pawnee County backs off search fee for public access to commissioners' e-mails about controversial project

E-mail exchanges among Pawnee County commissioners regarding a proposed recycling facility and between the commissioners and an engineering consultant about the same project were made available to the public on Monday without a search fee being charged.

Commission secretary Kandy Jump made printed copies of all County Commission e-mails available in a binder for public viewing, said Jana Dallas-Wagner, one of two residents requesting the e-mails.

District Attorney Larry Stuart had advised Jump to charge a search fee because sorting out specific e-mails was causing "excessive disruption of the essential functions of the operations of" the county commission office. (Read previous posting on issue.)

Dallas-Wagner and fellow-requester Laurie Mittasch said Jump had estimated the fee at $101.08 (seven hours of Jump's time at $14.44 an hour).

In a May 29 letter to Dallas-Wagner, Stuart quoted an Open Records Act provision specifically allowing a search fee to be charged “if the request (a.) is solely for commercial purposes, or (b.) would clearly cause excessive disruption of the essential functions of the public body.” (OKLA. STAT. 51, § 24A.5(3))

However, Stuart did not mention this subsequent language in the same provision:

In no case, shall a search fee be charged when the release of records is in the public interest, including, but not limited to, release to the news media, scholars, authors and taxpayers seeking to determine whether those entrusted with the affairs of the government are honestly, faithfully, and competently performing their duties as public servants.

Stuart is retiring after serving as district attorney for 32 years. First Assistant District Attorney Jeff Jones, a Democrat, and state Rep. Rex Duncan (R-Sand Springs) are competing to replace him.

Earlier this month, Mittasch said commissioners should have been required to print the e-mails, which should have been put in a binder the public could access.

Mittasch and Dallas-Wagner say Jump told them she made an "executive decision" to do just that.


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

DA says search fee may be charged for promptly sorting out Pawnee County commissioners' e-mails about controversial public project

District Attorney Larry Stuart says a search fee may be charged to taxpayers for promptly responding to their request for e-mail exchanges among Pawnee County commissioners regarding a proposed recycling facility and between the commissioners and an engineering consultant about the same project.

The fee for sorting through commissioners' e-mails to find the requested ones would be an estimated $101.08 (seven hours at $14.44 an hour), the requesters say they were told today.

Stuart, district attorney for Pawnee and Osage counties, said the fee may be charged if the search is causing "excessive disruption of the essential functions of the operations of" the county commission office.

In a May 29 letter to one of the county residents requesting the e-mails, Stuart quoted an Open Records Act provision specifically allowing a search fee to be charged “if the request (a.) is solely for commercial purposes, or (b.) would clearly cause excessive disruption of the essential functions of the public body.” (OKLA. STAT. 51, § 24A.5(3))

However, Stuart did not mention this subsequent language in the same provision:

In no case, shall a search fee be charged when the release of records is in the public interest, including, but not limited to, release to the news media, scholars, authors and taxpayers seeking to determine whether those entrusted with the affairs of the government are honestly, faithfully, and competently performing their duties as public servants.

In a 1996 opinion, state Attorney General Drew Edmondson described that language as a “legislative warning,” saying:

Should a public body choose to charge a search fee it should proceed with caution in view of the legislative warning set forth in the Act which provides in pertinent part: ‘In no case shall a search fee be charged when the release of said documents is in the public interest, including, but not limited to, release to the news media, scholars, authors and taxpayers seeking to determine whether those entrusted with the affairs of the government are honestly, faithfully, and competently performing their duties as public servants.’ (1996 OK AG 26, ¶ 13 (quoting OKLA. STAT. tit. 51, § 24A.5(3))

Using absolute terms of his own in a 1999 opinion, Edmondson said, “Further, a search fee cannot be charged when release of public records is in the public interest, such as release to the news media, scholars, authors or taxpayers seeking to determine if government affairs are being properly performed.” (1999 OK AG 55, ¶ 15)

Legislative intent also was “quite clear” to then-Attorney General Robert H. Henry in 1988, when he said public bodies could not charge a search fee to reporters investigating government operations.

“[T]here is no situation under which a member of the news media may be lawfully charged a search fee by a public body,” he said. “51 O.S. 24A.5(3) … is quite clear on that point when it decrees ‘in no case’ may such search fees be assessed in such circumstances.” (1988 OK AG 35, ¶ 6 (citing OKLA. STAT. tit. 51, § 24A.5(3))

That prohibition on search fees would seem to apply to the request for the Pawnee County commissioners' e-mails given that the same sentence in the statute includes both the news media and “taxpayers seeking to determine whether those entrusted with the affairs of the government are honestly, faithfully, and competently performing their duties as public servants.”

The specific request by residents Laurie Mittasch and Jana Dallas-Wagner seems to meet that requirement.

"We have been having difficulty obtaining information on the 'recycling facility' project, and it has become a very frustrating endeavor," Dallas-Wagner told the FOI Oklahoma Blog.

The engineering consultant, Craig Treiber, is being paid $6,000 a month plus expenses from tax monies to coordinate the proposed waste recycling/biomass processing facility.

Treiber was paid nearly $30,000 from January to May 7 for his work on the project, according to The Pawnee Voice on June 2.

(The Pawnee Voice also reported that no contract for Treiber was on file with the Pawnee County clerk despite First Assistant District Attorney Jeff Jones being asked by county commissioners on Nov. 25 to write a contract for Treiber.)

Pawnee County commissioners have conceded publicly that Treiber reported to them via electronic mail.

The project itself is a controversial one that is drawing heated public opposition, according to The Cleveland American.

Consequently, it would seem that no search fee should be charged to Dallas-Wagner and Mittasch to fulfill their request.

Dallas-Wagner told the FOI Oklahoma Blog that 29 e-mails were forwarded to her between her request on May 17 and May 20.

On May 26, she was told by commission secretary Kandy Jump via e-mail that Stuart and First Assistant District Attorney Jeff Jones had told Jump to stop forwarding e-mails and instead "prepare an estimate of how long it will take me to complete the task plus the time I have already spent, and multiply it by my hourly wage to arrive at an estimated cost that will have to be paid upfront."

In Stuart's letter, he said it was taking Jump "considerable time to sort through all e-mails received to determine which ones are applicable" to the request.

Stuart said the search might have to be done "at times other than normal business hours so that the employee can still perform her normal work."

"Should you determine that you do not desire to post a deposit to perform the research then the same shall be performed as time is available to Ms. Jump and as will not cause a disruption to her office," he said.

The Open Records Act requires that governments provide "prompt, reasonable access" to public records. (OKLA. STAT. tit. 51, § 24A.5(5))

State Attorney General Drew Edmondson has defined that phrase as meaning "only the time to locate and compile the records." (1999 OK AG 58, ¶ 15)

On Wednesday, I sent Stuart an e-mail asking him to clarify any misunderstandings about his reason for charging the search fee. He was told my deadline for posting to the blog was noon Friday. The same e-mail was copied to Jones and Jump. No one has responded.

Stuart is retiring after serving as district attorney for 32 years. Jones is running to replace him.

Mittasch thinks commissioners should have been required to print the e-mails, which should have been put in a binder the public could access.

"If they had done that, I would have no problem visiting the courthouse to view the book or pay for copies if needed," she said.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

Tulsa County assessor balks at making written request for recording of public meeting

Tulsa County's assessor says he shouldn't be required to fill out a form to obtain the audio tape of a meeting of a public body to which he belongs, the Tulsa World reported Monday.

Ken Yazel said that as a member of the Tulsa County Budget Board, "I ought to be able to get an audio unless there is something else going on I don't know about.

"In the past, we have gotten things verbally, we've done it with an e-mail, now all of a sudden they've taken it one degree more," he told the Tulsa World.

The newspaper found that none of the other members of the board, all of whom are elected county officials, have been asked to fill out the county's request form to receive documents from the County Clerk's Office.

Yazel's complaint raises the larger question of whether government agencies in Oklahoma may require such forms to be filled out to request records.

The answer is yes, according to state Attorney General Drew Edmondson.

In 1999, Drew Edmondson noted that the Open Records Act "sets forth no specific provisions on the mechanisms that a public body must use in the implementation of the Act." (1999 OK AG 55, ¶ 12)

Public bodies may establish procedures for access to public records but “such rules must be consistent with the letter and spirit of the Open Records Act,” Edmondson said. (Id. ¶ 25)

“The standard for such rules is that the rules be necessary to ‘protect the integrity and organization of its records’ or ‘to prevent excessive disruption of the essential functions of the agency,’” Edmondson said. (Id. ¶ 13 (quoting OKLA. STAT. tit. 51, § 24A.5(5))

"[A] public body could require a request for access to records to be put into writing. This would help the public body ensure the request is responded to fully and competently," Edmondson said. (Id. ¶18)

But the information the government can require from the requester is limited.

The requester can be asked for enough information to determine if a search fee should be charged because the records request is for a commercial purpose, Edmondson said. (Id.)

The official could request a name and mailing address if the requester asked that the records be delivered via mail. (Id. ¶ 20)

“It may also be reasonable to request the name and telephone number of a requestor … where it will take … until at least the next day to respond to a request," Edmondson said. "This would allow the public body or official to contact the requestor if a problem developed or, for example, if the requestor had asked for an estimate as to the fee once the public body or official determined such fees.” (Id. ¶ 20 n.3)

His emphasis on “request” indicates that, absent statutory authority to do so, the official may not require the requester to provide a name and telephone number.

Otherwise, he emphasized, “In no event could a public body or public official ever require a requestor to provide the reason for a request for access to records besides that ... concerning the authority of the public body or public official to charge a search fee if the request for records is for a commercial purpose.” (Id. ¶ 19)

Edmondson emphasized that under the Open Records Act, "a search fee cannot be charged when release of public records is in the public interest, such as release to the news media, scholars, authors or taxpayers seeking to determine if government affairs are being properly performed." (Id. ¶ 15, citing OKLA. STAT. tit. 51, § 24A.5(3))

Tulsa County's request form does not indicate that a search fee may not be charged in such instances.

Instead, the form states, "This request is made for business or personal need. ( Circle one ). I have been advised that a charge for copying public records is authorized by state law."

In a section for "internal use," the form indicates whether a search fee was charged and for how much time.

Perhaps "personal need" is meant to indicate that the requester is seeking the records in the public interest" and is, for example, a taxpayer "seeking to determine whether those entrusted with the affairs of the government are honestly, faithfully, and competently performing their duties as public servants.” (OKLA. STAT. tit. 51, § 24A.5(3))

The public would be better served if "personal" was replaced with "public interest" and the form explained when search fees could be charged.


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