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