Norman councilman signs Open Government Pledge

Norman Councilman Tom Kovach has signed FOI Oklahoma's Open Government Pledge as he runs for re-election in the city's municipal election on March 2.

Kovach, who represents Ward 2, is the second candidate in the election to sign the pledge. Councilman Hal Ezzell signed as a mayoral candidate.

Freedom of Information Oklahoma Inc. invites candidates for municipal offices and school board seats this spring to sign the pledge to uphold the letter and spirit of the state's Open Meeting and Open Records laws.

Instructions and a list of signers for the 2010 elections can be found on FOI Oklahoma’s Web site, www.foioklahoma.org.

By signing the pledges, candidates promise, "I and the public bodies that I am elected to govern will comply with not only the letter but also the spirit of Oklahoma's Open Meeting and Open Records laws."

They also promise “to support at every opportunity the public policy of the State of Oklahoma that the people are vested with the inherent right to know and be fully informed about their government so that they can efficiently and intelligently exercise their inherent political power.”

FOI Oklahoma began the Open Government Pledge in spring 2008 as part of a national effort to spur public commitments to government transparency from candidates for president down to city council contests.

For the 2008 and 2009 elections, 58 candidates for local or statewide offices signed the pledge. Of those, 28 were elected.


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

Valley Brook refuses to release police report on detention of Oklahoma City police officer

Valley Brook officials are refusing a television station's request for a copy of a police report on an incident involving an Oklahoma City police officer.

Oklahoma City Detective Chuck Wheeler says he was detained by Valley Brook police for more than three hours last month, according to KOKH-TV Fox 25.

The Oklahoma City station reports that Wheeler is suing Valley Brook for wrongful arrest.

Even though Wheeler was not booked into jail, he asked his own department for an investigation to confirm that he had done nothing wrong. As part of that investigation, Oklahoma City police requested a report on the incident from Valley Brook police.

When Fox 25 reporter/anchor Britten Follett requested a copy of the report from Valley Brook, she was told it was not ready. When she returned several days later, she was told the report was unavailable because the incident was "still under investigation."

Valley Brook City Attorney Bob Thompson later denied her request, claiming the report is not a public record because Wheeler was not arrested and the report is a personnel matter written at the request of Oklahoma City police.

None of the three reasons seems to comply with the state Open Records Act.

No. 1: The statute requires that certain records kept by the law enforcement agency be made available for public inspection and copying regardless of whether an investigation is completed.

Those records include the "initial offense report information showing the offense, date, time, general location, officer and a brief summary of what occurred." (OKLA. STAT. tit. 51, § 24A.8(A)(3))

No. 2: Police incident reports not involving an arrest are open to the public under legislation that took effect Nov. 1.

House Bill 1049 rectified a 2005 amendment to the Open Records Act that police departments had interpreted as allowing the release of incident reports only pertaining to an arrest.

No. 3: Valley Brook is claiming the exemption for personnel records, but Wheeler isn't an employee of Valley Brook. The exemption's language clearly applies to records related a public body's own personnel.

Valley Brook police created an incident report. What Oklahoma City officials have done with the record seems irrelevant when the police report is requested from Valley Brook.

State Attorney General Drew Edmondson has emphasized that access to police information does not depend on the record title used by the law enforcement agency.

“The department doesn’t have to call it a jail register. If it is a jail register, then it’s a public record,” Edmondson said in a 2005 video for training police about the Open Records Act. “They don’t have to call it a radio log. If they keep a log of radio traffic, then it’s a public record.”

In this situation, Valley Brook created a police report on the incident. Under the Open Records Act, certain information -- the offense, date, time, general location, officer and a brief summary of what occurred -- must be made available to the public.

By denying access to the public information, Valley Brook officials act as though they have something to hide. If that's not the case, then they are doing a disservice to themselves and their own officer.


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

Judge vacates ruling that Grady County fee for digital copies of assessments database violates Open Records Act

A judge is giving the Grady County assessor another opportunity to argue that her fee for an electronic copy of a database of all real property assessments complies with the state Open Records Act, The Oklahoman reported Friday.

District Judge Richard Van Dyke on Thursday threw out his previous ruling that the county assessor could no longer charge more than $26 for a digital copy of the database because the direct, reasonable cost of searching for and burning the records onto a CD or DVD is no more than that amount. (Hurlbert v. Firestone, CJ-08-00790 (Grady Co.))

However, an assistant district attorney argued that the ruling came about only because Grady County Assessor Bari Firestone had not been notified of the lawsuit and, therefore, had not responded. The plaintiff's attorney, Douglas A. Wilson, a board member of FOI Oklahoma Inc., said Firestone and the assistant district attorney had been notified.

Wilson said another hearing will be held.

The lawsuit is one of four filed against Oklahoma county assessors by Roger W. Hurlbert, an FOI Oklahoma Inc. member. Doing business as Sage Information Services in California, Hurlbert filed suit against Muskogee, Osage and Wagoner counties in 2007 and Grady County in 2008.

Hurlbert is challenging the assessors' practice of charging five cents for the first 25,000 records and two cents thereafter.

In each case, the judge ruled that the fee violates the state Open Records Act because it is "not limited to recovering only the reasonable, direct costs of record copying and any necessary record search."

Van Dyck had said Grady County may no longer charge more than $26 for the database.

Judges limited Muskogee, Osage and Wagoner counties to $50 for their databases.

In all four rulings, the judges have said Hurlbert is entitled to his reasonable attorney fees and costs.

For more background on the lawsuits and the relevant law, read these blog postings.


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

Washington County DA won't prosecute Open Meeting Act violation, says it was unintentional

Washington County District Attorney Rick Esser won't prosecute three members of a Bartlesville city committee, saying an Open Meeting Act violation was a clerical error and not intentional, the Tulsa World reported.

But Esser's reason ignores a warning by the state attorney general's office that proving a willful violation of the state Open Meeting Act requires showing only that the official knew or should have known the law, not that the official intended to violate the law.

The FOI Oklahoma blog two weeks ago reported that the agenda for the Design Review Committee's special meeting on Dec. 15 did not specify that action could be taken on two project applications that the committee approved during the meeting.

In contrast, the agenda said the committee would "discuss and take possible actions to develop Residential Design Guidelines for the Downtown Redevelopment District."

Joel Rabin, an FOI Oklahoma member, filed a police complaint accusing the committee's three members who were present of violating the Open Meeting Act.

But Esser told the Tulsa World he won't file charges.

"It looked like from the information obtained there was no intention to violate the Open Meeting Act," Esser said. "I can't find that the Design Review Committee, from what the report indicates, intended to violate the law. The statue clearly says you have to have intention to purposefully violate the act."

No. As this blog has emphasized repeatedly and the state attorney general's office reminded officials in August, proving a willful violation of the state's Open Meeting and Open Records laws requires showing only that the official knew or should have known the law, not that the official intended to violate the law.

The state Supreme Court in 1984 said proving that a violation was willful "encompasses conscious, purposeful violations of the law or blatant or deliberate disregard of the law by those who know, or should know the requirements of the [Open Meeting] Act." (emphasis added) (Rogers v. Excise Bd. of Greer County, 1984 OK 95, ¶ 14, 701 P.2d 754, 761)

The court was relying upon a 1981 Oklahoma Court of Civil Appeals ruling.

The lower court had said if willful were narrowly interpreted to include only violations "done in bad faith, maliciously, obstinately, with a premeditated evil design and intent to do wrong, then the public would be left helpless to enforce the Act most of the time and public bodies could go merrily along, in good faith, ignoring the Act.” (emphasis added) (Matter of Order Declaring Annexation, 1981 OK CIV APP 57, ¶ 26, 637 P.2d 1270)

Esser's public comments encourage that kind of willful ignorance on the part of officials.

Esser told the Tulsa World the agenda "could have been made a little bit clearer, but I think the secretary just forgot to carry it forward, and she's going to make changes in how she writes the agenda in the future."

Try that excuse if you are caught cruising through downtown Bartlesville at 70 mph: Sorry, officer, I forgot the speed limit.

The Open Meeting Act requires that each agenda “identify all items of business to be transacted” by the public body at the meeting. (OKLA. STAT. tit. 25, § 311(B)(1))

The Oklahoma Court of Civil Appeals has said agendas should be worded in “plain language, directly stating the purpose of the meeting, in order to give the public actual notice." (Haworth Bd. of Ed. of Independent School Dist. No. I-6, McCurtain County v. Havens, 1981 OK CIV APP 56, ¶ 8)

The purpose of the statute “to encourage and facilitate an informed citizenry’s understanding of the governmental processes and governmental problems . . . is defeated if the required notice is deceptively worded or materially obscures the stated purpose of the meeting,” the court said.

Any act or omission that "has the effect of actually deceiving or misleading the public regarding the scope of matters to be taken up at the meeting" would be a "willful" violation of the Open Meeting Act, the court said. That includes any action exceeding the scope of action defined by the agenda.

Violating the Open Meeting Act is a misdemeanor that carries a fine of up to $500 and up to one year in the county jail. (OKLA. STAT. tit. 25, § 314)

Esser apparently didn't want to jail the committee members. But he could have filed charges and then negotiated a plea agreement in which the members apologized and promised to abide by the Open Meeting Act in return for the charges being dismissed after a certain amount of time.

Short of that, Esser could have served the public's interest by issuing a stern public warning not only to the Design Review Committee but also to all other city committees that future violations will not be tolerated. Then he could live up to that warning.


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

Owasso officials find way around confidentiality agreement, reveal amount paid to settle federal lawsuit

Owasso officials Wednesday released documents indicating the city paid $175,000 to settle a federal lawsuit by a former police officer, the Tulsa World reported today.

The former police officer's name was not in the documents, but the records show a payment was made from the city's self-insurance fund to his attorneys on the same day the case was dismissed in court, the newspaper explained.

In early December, Owasso officials refused to disclose the amount, saying it would violate a confidentiality agreement the city had agreed to as part of the settlement.

However, state law requires that "judgments, orders, and settlements of claims shall be open public records unless sealed by the court for good cause shown." (OKLA. STAT. tit. 51, § 158(G))

A federal judge had refused a request by city officials and the former officer to order confidentiality for the settlement terms.

On Wednesday, Owasso City Manager Rodney Ray said expenditure and transaction records for the city's general liability self-insurance fund were covered by the Open Records Act and disclosure wouldn't violate the confidentiality agreement.

"While the City of Owasso is bound by the terms of the settlement agreement, the city concomitantly has a compelling duty under state law to respond to requests made under the Open Records Act for documents and records," he told the Tulsa World in an e-mail. "In addition, as always, the city of Owasso seeks to be as transparent as possible in its decisions and actions."

In early December, this blog questioned why local governments are allowed to enter into secret settlements in the first place.

It's the public's money -- even if paid from a self-insurance fund or by an insurance company to which the city pays premiums.

Taxpayers are entitled to know -- need to know -- how their elected officials spend public funds and how those officials agree to settle claims against governments.

Legislators should specifically prohibit state agencies and local governments from agreeing to keep settlements secret.


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

Are Oklahoma's rural electric cooperatives subject to the state's Open Meeting, Records laws?

Questions from the public: Does the Open Meeting Act apply to meetings of the Board of Trustees for a rural electric cooperative? Would a member of the cooperative be entitled to attend meetings of the trustees?

The first answer seems to be that Oklahoma's rural electric cooperatives are not subject to the state's Open Meeting and Open Records laws.

Research didn't locate any court or attorney general opinion interpreting whether rural electric cooperatives are subject to those laws.

However, a 1990 attorney general opinion concluded that rural electric cooperatives "are private corporations and not governmental entities." (1989 OK AG 72, ¶5)

"Rural electric cooperatives are non-profit, private corporations organized for the purpose of supplying electric energy to rural areas. 18 O.S. 437.1 (1989) et seq. Unlike the trustee of a public entity, a rural electric cooperative trustee responds not to the needs of the general public but to the cooperative members and the duties prescribed in the corporate bylaws.

"Although rural electric cooperatives are considered to be public utilities because they provide services considered necessary to the public, they still retain their status as a private cooperative corporation," the opinion reasoned. (Id. at ¶4, citing Public Service Company v. Caddo Electric Cooperative, 1970 OK 219)

In issuing this opinion, the attorney general withdrew a 1984 opinion concluding that "the office of trustee of a rural electric cooperative is clearly a public office." (1983 OK AG 158, ¶5)

At least one rural electric cooperative has interpreted the 1990 opinion as exempting it from the state's sunshine laws. In 2006, the Tahlequah Daily Press paraphrased the Lake Region Electric Cooperative's general counsel as noting that "an Oklahoma attorney general’s opinion that is now several years old states the cooperative is not a public body, and the state’s Open Meeting Act and Open Records Act do not apply to LREC."

In 2002, Attorney General Drew Edmondson issued an opinion concluding that a private for-profit or non-profit organization is subject to the Open Meeting Act if it is a "'subordinate entity' which exercises actual or de facto decision-making authority on behalf of a governmental body; or if the private organization is ‘supported in whole or in part by public funds or entrusted with the expending of public funds, or administering public property.’” (2002 OK AG 37, ¶2)

According to the Oklahoma Association of Electric Cooperatives:

“Electric cooperatives are private, non-profit corporations owned by their consumer-members. They are similar in concept to other consumer-owned businesses; including farm produce marketing co-ops and newsgathering and reporting co-ops, like the Associated Press.

“Essentially, each consumer of the cooperative is a member, with on[e] vote in the affairs of the cooperative. Bylaws, adopted by the members, set forth their rights and responsibilities and lay out the guidelines that assure a democratic organization.”

The association says rural electric cooperatives receive their funding from members' monthly payments for electric service and from loans.

Based on this information, the state Open Meeting and Open Records laws don't seem to apply to Oklahoma's rural electric cooperatives.

A cooperative's bylaws seem to determine whether a member may attend trustee meetings.

Please tell me of any statutory language, court rulings or attorney general opinions to the contrary.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

Oklahoma City police post daily jail blotter online, includes DOBs of people arrested

Kudos to Oklahoma City police officials for posting online the daily list of people booked into the county jail by OKC police.

The jail blotter will be posted every day except for weekends and holidays, according to the police department's Web site.

An archive of the previous 30 days of booking also is available.

The blotter is posted at www.ocpd.com. Click the "Jail Blotter” link in the left-side menu.

BTW, the blotter includes the birth dates of those people arrested and booked into the jail.

The state Open Records Act makes public not only jail blotters but also a description of people arrested, including the "date of birth, address, race, sex, physical description, and occupation." (OKLA. STAT. tit. 51, § 24A.8(A)(1-8))

Oklahoma City and Oklahoma County officials have recently refused to disclose the birth dates of their government employees, claiming it would be an unwarranted invasion of privacy.

The Oklahoman requested the information so it could check the names of those employees against databases of criminal records, including jail blotters.

Officials decided to post the blotter because it's a public record with a lot of interest, police Capt. Patrick Stewart told The Oklahoman.

"What we came up with, I think, will better serve the needs of the public, who no longer have to travel to the police department to see the blotter,” Stewart told the newspaper.

See also Carrie Coppernoll's column about the jail blog. The Oklahoman writer observed, "Reading a daily police blotter gives us a snapshot of our city."

She noted that mug shots are available online at the Oklahoma County Sheriff's Office Web site.


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