FOI Oklahoma seeks nominations for First Amendment, freedom of information awards for 2010

Nominations are open for FOI Oklahoma’s awards recognizing individuals and organizations that promoted the First Amendment and the free flow of information to the public in 2010.

FOI Oklahoma also recognizes those who opposed dissemination of public information with its Black Hole Award.

The Ben Blackstock Award is presented to a non-governmental person or organization that has shown a commitment to freedom of information. The Sunshine Award goes to a public official or governmental body that has shown a commitment to open meetings and open records.

FOI Oklahoma also recognizes an Oklahoman who has promoted education about or protection of the individual rights guaranteed by the First Amendment with its Marian Opala First Amendment Award. The award is named for the late Oklahoma Supreme Court justice, a Polish immigrant who exemplified a belief in First Amendment rights.

This is the fourth year for the open government awards. Last year’s winner of the Blackstock Award was the Tulsa World, and the Sunshine Award was presented to Kristy Yager of the city of Oklahoma City. The Opala Award was presented to Lindel Hutson, retired Oklahoma bureau chief for The Associated Press.

The Black Hole Award went to Oklahoma County District Attorney David Prater and the Oklahoma City attorney’s office.

All four awards will be presented during the Sunshine Week conference March 12 in Oklahoma City. The local conference is in conjunction with national Sunshine Week, March 13-19, which will highlight “Local Heroes” across America who have played significant roles in fighting for open government.

Deadline for nominations for all awards is Feb. 21.

Nominations must include a letter of no more than 250 words justifying why the person or organization is deserving of the award.

Nominations may be made via e-mail to foiawards@gmail.com or mailed to FOI Awards, PO Box 5315, Edmond, OK 73083-5315.

FOI Oklahoma is a statewide not-for-profit founded in 1990 to educate the public on the First Amendment and openness in government.

Glenpool City Council skips executive session for which no topic was listed

The Glenpool City Council did not go into an executive session with its attorney Tuesday night that would have been an apparent violation of the state Open Meeting Act, The Glenpool Post reports.

Rather than stating the specific investigation, claim or action to be discussed, the agenda had provided only the specific statutory authorization for the proposed executive session.

In an e-mail last Friday to a Glenpool resident and several city officials, Glenpool City Attorney Lowell Peterson had cited the state's attorney-client privilege as the reason for not including the specific item of business to be discussed in the executive session.

"I have exercised my statutory prerogative to advise the City Council that disclosing the nature of the claims, or the names of the claimants, in the matter under consideration would not be in the public interest," Peterson wrote. "I don't expect to change my thinking on this."

Attorneys for other public bodies have in recent months also contended that the Open Meeting Act provision allowing public bodies to discuss confidential communications with their attorneys is subject to the statute providing for the attorney-client privilege.

The FOI Oklahoma Blog on Monday had quoted two attorneys who explained why attorney-client privilege does not trump the Open Meeting Act's requirements for agendas.

The Glenpool Post published that blog posting online Monday.

At this point, I don't know what reason was given at the council meeting Tuesday night for not going into the executive session or the gist of the conversation between Peterson and the council members. When I find out, I will pass it along.


Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications

Glenpool City Council agenda omits specific item of business to be discussed with its attorney behind closed doors

What the Glenpool City Council will discuss with its attorney behind closed doors Tuesday night is being kept secret from the town's residents in an apparent violation of the state Open Meeting Act.

Rather than stating the specific investigation, claim or action to be discussed, the agenda provides only the specific statutory authorization for the proposed executive session.

But the Open Meeting Act states: "If a public body proposes to conduct an executive session, the agenda shall:

• Contain sufficient information for the public to ascertain that an executive session will be proposed;
• Identify the items of business and purposes of the executive session; and
• State specifically the provision of Section 307 of this title authorizing the executive session." (OKLA. STAT. tit. 25, § 311(B)(2)(a-c))

Seems pretty straightforward. So why does the Glenpool City Council agenda -- as have agendas for the Oklahoma State Regents for Higher Education and the Bartlesville Redevelopment Trust Authority in recent months -- include only the statutory authorization and omit the specific item of business to be discussed?

Because government lawyers contend that the Open Meeting Act provision allowing public bodies to discuss confidential communications with their attorneys is subject to the statute providing for the attorney-client privilege.

Are they correct? Does attorney-client privilege simply trump the agenda requirements under the Open Meeting Act?

No, say two lawyers who have successfully litigated open government lawsuits in the state.

The specific investigation, claim or action must be identified on the agenda as required by the Open Meeting Act, they said.

"The identification of the claim is extremely important. Absent the claim or case, the session has no limits. One can talk about whatever they want," said Michael Minnis of Doerner Saunders Daniel & Anderson L.L.P.

Listing the specific investigation, claim or action on the agenda is "intended to allow an initial objective evaluation that the proposed executive session meets the criteria of the cited statute and to allow a subsequent evaluation if someone objects that the executive meeting held under that agenda description exceeded the authorization," said Minnis.

"The latter refers to situations, for example, where the executive session discussed Case 1, not Case 2 as set forth in the agenda," he explained.

Identifying the item of business on the agenda would not nullify or impair the attorney-client privilege, which shields from third parties the content, not the topic, of confidential communications between a client and attorney, said Stillwater attorney Doug Wilson.

In fact, identifying the item of business on an agenda is no different from what attorneys must already do to withhold information under the state statute governing discovery in civil lawsuits, he pointed out.

That statute requires the attorney to "describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection." (OKLA. STAT. tit. 12, § 3226(B)(5)(a))

Attorneys for public bodies "should be able to do the exact same thing when identifying the items of business and purposes of a proposed executive session," said Wilson, a former member of the FOI Oklahoma Inc. board of directors.

Wilson explained that Oklahoma's attorney-client privilege is an evidentiary rule "simply inapplicable in the determination of whether or not a public body may lawfully enter into an executive session."

"The issue to be determined is not a rule of evidence. It is a matter of Open Meeting Act procedure," he said.

"While the two statutes (12 O.S. § 2502(D)(7) and 25 O.S. § 307(B)(4)) have similar wording, they clearly apply to two different realities. The Oklahoma Evidence Code is expressly limited in scope to 'criminal and civil proceedings, conducted by or under the supervision of a court, in which evidence is produced.' This is not the context under which an agenda is prepared to give proper notice of an executive session," said Wilson.

"It is simply erroneous to equate the statutory prerequisites for a public body to enter into an executive session with a rule of evidence which entitles a party to refuse to disclose and to prevent others from disclosing evidence otherwise relevant to the case.

"The procedures that must be followed to hold an executive session are different from the circumstances under which a 'public body'-client may refuse to disclose and prevent others from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the 'public body'-client," Wilson noted.

"The first has to do with the Open Meeting Act and is applicable in the conduct of public business," he explained. "The second has to do with the Oklahoma Evidence Code and is applicable only in the context of litigation."

Wilson noted that when the Legislature enacted the Open Meeting Act, it failed to allow executive sessions between public bodies and their attorneys. A 1977 Oklahoma attorney general opinion found that with the passage of the Open Meeting Act, public bodies could no longer privately confer with their attorneys because none of the Open Meeting Act provisions permitted such an executive session. (1977 OK AG 222)

Enactment of the Open Meeting Act had effectively negated the attorney-client privilege for public bodies under the state Evidence Code, Wilson said.

Government attorneys petitioned the Oklahoma Supreme Court. In 1978, Wilson explained, the court "reassured public bodies that they could still meet in confidence with their attorneys, but in order to reach this conclusion, the Court was required to say that the Open Meeting Act permitted such executive sessions (even though the OMA did not expressly permit such executive sessions)." (See Oklahoma Ass'n of Municipal Attys. v. State, 1978 OK 59)

In 1985, the Legislature solved the problem by amending the Open Meeting Act to allow executive sessions for the purpose of "confidential communications between a public body and its attorney concerning a pending investigation, claim, or action if the public body, with the advice of its attorney, determines that disclosure will seriously impair the ability of the public body to process the claim or conduct a pending investigation, litigation, or proceeding in the public interest." (OKLA. STAT. tit. 25, § 307(B)(4))

The Legislature treated it the same as the other topics for which a public body may meet in executive session, placing it under the requirements for all executive sessions.

"Ever since the Legislature amended the OMA in 1985 to allow executive sessions for confidential communications between a public body and its attorney, reference to the Evidence Code is no longer necessary to determine the authority for, and procedures to be followed in, convening an executive session," said Wilson. ""Now, it is strictly a matter of OMA procedure.

"Reference to Oklahoma Ass'n of Municipal Attys. v. State as support for how to interpret the current statutory framework is misguided and unworkable," Wilson said, "because the effective negation of the attorney-client privilege for public bodies created by the enactment of the Open Meeting Act without also permitting an executive session to be called for the purpose of confidential communications with counsel no longer exists.

"Since the 1985 amendment of the OMA, compliance or non-compliance with the Open Meeting Act is wholly determined by reference to the procedures set forth in the OMA, and those procedures require the public body to ’identify the items of business and purposes of the executive session,'" Wilson stressed.


Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications

Opening legislative caucus meetings likely to stir most opposition to HB 1085, Rep. Murphey says

Requiring state legislative caucuses to discuss the public's business in public will likely create the most opposition to a bill forcing the Legislature to abide by Oklahoma's open government laws, Rep. Jason Murphey said Friday.

"Closed caucus meetings have been an institution forever, and legislators like the ability to talk behind closed doors," the Guthrie Republican told the FOI Oklahoma Blog after filing House Bill 1085 on Friday.

(Read more about the bill.)

In an Edmond Sun column last month, Murphey said opening legislative caucuses is "one of the most important aspects" of his proposal.

"An important principle of open meeting laws is the concept that dictates that a majority of a governing body should never meet behind closed doors to discuss business. This concept helps keep policy makers from taking a public stand different from the position taken in private," Murphey wrote.

On Friday, Murphey seemed optimistic that his bill would pass if he can get it heard in committee and the House floor.

"I do think there is bi-partisan support for the idea. And, make no mistake about it, anytime this bill is given a vote, it will pass overwhelmingly," he said. "This challenge will be getting the hearing in committee and on the floor."

Murphey said he thinks HB 1085 will be assigned to the House Rules Committee, which is chaired by Rep. Gary W. Banz, R-Midwest City.

The bill should find support in that committee because Vice Chair Weldon Watson, R-Tulsa, and three committee members -- David Dank, R-Oklahoma City; Randy McDaniel, R-Oklahoma City; and Seneca Scott, D-Tulsa -- signed FOI Oklahoma's Open Government Pledge.

Other House members who signed the pledge are:

• John Bennett, R-Sallisaw
  
• Sally Kern, R-Oklahoma City
  
• Al McAffrey, D-Oklahoma City
  
• Jeannie McDaniel, D-Tulsa
  
• Todd Russ, R-Cordell
  
• Mike Sanders, R-Kingfisher
  
• Emily Virgin, D-Norman
  
• Harold Wright, R-Weatherford
  

Gov. Mary Fallin also signed the pledge and as a candidate last spring said she supports removing the Legislature's exemption from the Open Records and Open Meeting laws.
 
In the Senate, Josh Breechen, R-Coalgate, Roger Ballenger, D-Okmulgee, and minority leader Andrew Rice, D-Oklahoma City, signed the pledge.
 
Along with Murphey, each of these politicians promised to support the public's right to know at every opportunity and to "support legislation to strengthen the letter and the spirit of Oklahoma's Open Meeting and Open Records laws."
 
That's why Murphey should be able to count on their public support for HB 1085.
 

 
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications

Rep. Murphey files bill requiring Legislature to abide by state Open Meeting, Open Records laws

The Oklahoma Legislature's self-imposed exemption from the state's open government laws would end, under a bill filed Friday by Rep. Jason Murphey, R-Guthrie.

House Bill 1085 would add the Legislature to the definition of public body under the Open Records and Open Meeting acts while removing its exemption from the statutes.

Murphey's bill addresses one of the objections raised by legislative leaders last summer: That legislators must be exempt in order to avoid releasing personal or confidential information revealed in constituent e-mails or letters.

Murphey's bill would exempt from the Open Records Act personal communications to a legislator in which a person -- who cannot be another legislator or a registered lobbyist -- exercises rights under the federal or state constitutions.

An exemption for personal communications exercising constitutional rights already exists under the Open Records Act. (OKLA. STAT. tit. 51, § 24A.14)

"Except for the fact that a communication has been received and that it is or is not a complaint, a public official may keep confidential personal communications received by the public official from a person exercising rights secured by" the state and federal constitutions, according to the statute. "The public official's written response to this personal communication may be kept confidential only to the extent necessary to protect the identity of the person exercising the right."

For example, a 1988 attorney general opinion explained, a person filing a complaint with the Board of Governors of Registered Dentists or with the Board of Medical Licensure would be exercising a right under the state and federal constitutions "to apply to those invested with the powers of government for redress of grievances." (1988 OK AG 79,¶ 17)

Therefore, the identity of the complainant could be kept confidential, the opinion concluded. (See also Bd. of Medical Licensure v. Miglaccio, 1996 OK CIV APP 37, ¶ 9)

The attorney general opinion noted that the statutory language did not require that the complainant's name be kept confidential, only that public officials may do so.

In contrast, Murphey's bill would require the communications to be kept confidential by adding them to a list of records specifically exempted from the Open Records Act. (OKLA. STAT. tit. 51, § 24A.5(1))

But even so, HB 1085 would finally require Oklahoma legislators to follow the state's open government statutes just as other public bodies are required to do.


Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications

Will Gov. Fallin fulfill candidate Fallin's open government promises?

As a gubernatorial candidate, Mary Fallin pledged that she and the public bodies she would be elected to govern would "comply with not only the letter but also the spirit of Oklahoma’s Open Meeting and Open Records laws."

She also would hire someone to ensure our state open government laws are enforced, Fallin told FOI Oklahoma's Sunshine Week conference in March.

"As governor, one of the things I will do is to be very forthright in making sure that we enforce our Open Meeting Act and our Open Records Act, and I do think it's important that a governor have someone dedicated full time to making sure enforcement is carried forth," she said.

A model for such a position in the governor's office can be found in Florida. The Office of Open Government was created by Republican Gov. Charlie Crist in 2007 and reaffirmed by new Republican Gov. Rick Scott on his first day in office last week.

Under Scott's executive order, the Office of Open Government will:

• "Facilitate Floridians' right to know and have access to information with which they can hold government accountable;
• Continue to assure full and expeditious compliance with Florida's open government and open records laws; and
• Provide training to all executive agencies under my purview on transparency and accountability."

The Office of Open Government also has "primary responsibility for ensuring that the Office of the Governor complies with public records requests in an expeditious manner."

Republican Fallin said she expects government information to be released "in a timely manner and that information is not withheld intentionally just to forestall the public's right to know."

Fallin also said that as governor, she would:

• Veto legislation exempting public employees birth dates from the state Open Records Act;
• Expect her appointees to public bodies to abide by the Open Meeting and Open Records laws; and
• Support eliminating the state Legislature's exemption from the Open Records and Open Meeting laws.

Fallin signed FOI Oklahoma's Open Government Pledge in which she endorsed "the purpose of Oklahoma’s Open Meeting and Open Records laws to ensure and facilitate the public’s understanding of governmental processes and problems."

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

Now that Fallin is governor, will she live up to those promises?

Do you believe she will?


Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications

State Senate's new rules give public, senators one legislative day to review bills before vote

Legislative rules adopted this week by the state Senate require that bills be available to the senators and public on the legislative day prior to the vote, a Tulsa World editorial explained today.

Meanwhile, a House panel is considering a rule requiring House conference committee reports to be filed and posted online for a full 24 hours even during the final two days of the session before they could be considered on the House floor. (House rules are adopted on the first day of the session, which is Feb. 7.)

As the Tulsa World editorial writers observed this morning, "One day isn't much notice."

But the Senate's rule, first reported by Capitol News Now, is treated as good news because it should put an end to senators considering bills or joint resolutions in the waning hours of the legislative session.

The Tulsa World praised the notion of providing public access to legislation prior to votes. "It introduces democracy to the public's business," the newspaper said.

It called the Senate's new rule "a good start."

But the next step should be requiring both the House and Senate to comply with our state's Open Records and Open Meeting laws -- as state Rep. Jason Murphey, R-Guthrie, is proposing.

As the Tulsa World noted, "Senators [and representatives] have nothing to fear from letting the public know what they are doing, unless they're doing something they don't want the public to know about."


Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications