FOI Oklahoma seeks nominations for at large directors

Freedom of Information Oklahoma Inc. is seeking applicants to serve in at large positions on its board of directors for 2011.

FOI Oklahoma is a statewide organization that promotes open government through seminars and school programs and encourages state and local officials to comply with the state's Open Meeting and Open Records laws. It also advocates for citizens denied access to government records and proceedings.

Its members include teachers, politicians, journalists, librarians and other citizens who believe government of the people means that citizens must have access to their government to have the power to affect it.

Those who wish to apply for an at large board position should contact Mark Hanebutt, nominating chair, at 100 N. University Drive, Edmond, OK 73034, or by e-mail at mhanebutt@yahoo.com, before Monday, Nov. 8.

Under the Open Meeting Act, is the Pawnee County Commission permitted to consider items of 'unfinished business' not specifically listed on the posted agenda?

Agendas for Pawnee County Commission regular meetings routinely list “Unfinished Business” as an item.

But discussing -- let alone acting upon -- public business under such a vague agenda item would seem to violate the state Open Meeting Act.

Public bodies are not permitted to consider items of “old business” not specifically listed on the agenda, the state Court of Civil Appeals said in May 2009. (Okmulgee Co. Rural Water Dist. No. 2 v. Beggs Public Works Authority, 2009 OK CIV APP 51)

Any construction of the statute that would allow a public body to consider an item not listed on its posted agenda -- apart from “new business” -- “totally vitiates the underlying mandate of the OMA to notify the public of the time and place of meetings of a public body, and the matters the public body intends to consider,” said the three-member panel of the court. (¶17)

Any reading of the OMA notice provisions to permit consideration of unspecified "old business," in our opinion, "has the effect of actually deceiving or misleading the public regarding the scope of matters to be taken up at the meeting," and invites "agency action which exceeds the scope of action defined by the notice. (Id.) (emphasis included)

The court considered the violation by the Beggs Public Works Authority to be “willful” and “conscious” even though its attorney had advised that a water purchasing contract "could be properly considered and approved as an unlisted item of 'old business.'" (Id.)

“The plain language of §303 [of the Open Meeting Act] mandates the posting of a notice of the matters to be considered at a meeting of a public body,” the court said. (¶18)

“The failure of Beggs' governing board to post proper notice of its intent to consider the execution and approval of the water contract with Okmulgee, although based on advice of counsel, constitutes a ‘willful,’ ‘conscious’ violation of the OMA ‘by those who know, or should know the requirements of the Act,’” the court said. (Id.)

The court declared the contract invalid because its consideration and approval had exceeded the scope of action defined in the agenda. (Id.)

There seems no practical difference between the terms “old business” and “unfinished business.”

Under “unfinished business,” for example, Pawnee County Commissioners Dale Vance, Dale Carter and Gary Pogue on Aug. 16 apparently approved a contract leasing the county’s mineral rights under a one-acre section of land. According to the meeting minutes:

Clerk reported Jeff Jones, Assistant District Attorney, had returned the offer from Pablo Energy II, LLC, regarding Well Proposal Section 6, Township 21 North, Range 4 East, to lease the County’s mineral interest within the 1.04 acres. Advised Commissioners could only choose between the last two options. Discussion. Motion by Pogue to select the third option “Lease my interest to Palo for a primary term of 3 years for $175.00 per net mineral acre, reserving a One-eighth (1/8th) royalty, delivering an 87.5% net revenue interest to Pablo”, Seconded – Carter

No vote was recorded.

The contract was one of four items not listed on the agenda but dealt with under “unfinished business.”

Any action the Pawnee County Commission has taken on unlisted “unfinished business” could be challenged in court and most likely declared invalid.

Also, in at least one recent meeting, commissioners discussed public business that didn’t seem to be “unfinished business” but rather “new business.” According to the minutes of the Sept. 13 meeting, “Commissioners reported someone had been in their office over night and got on their computers-icons moved. Will put locks on them.”

The Open Meeting Act defines “new business” as “any matter not known about or which could not have been reasonably foreseen prior to the time of posting" the agenda. (OKLA. STAT. tit. 25, § 311(A)(9))

Given the clarity of that language and that the Court of Civil Appeals decision regarding the Beggs Public Works Authority was some 16 months ago, the Pawnee County Commission should know how to comply with the Open Meeting Act.

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


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

Unsealed transcript sheds light on hard feelings between Oklahoma County judge, district attorney's office

In an unsealed transcript of a September criminal hearing, Oklahoma County District Judge Tammy Bass-Lesure says she would step down from the case because she refused to hear any more cases prosecuted by the district attorney and his top two assistants.

Assistant prosecutors had asked Bass-Lesure to step down from the criminal case on Sept. 8 because the defense attorney was one of three attorneys the judge had recommended to a criminal defendant with a pending case assigned to her.

After what appears to have been a heated exchange with the prosecutors, Bass-LeSure ordered the transcript of the hearing sealed. On Sept. 20, Judge Lisa Davis signed an order releasing the transcript "to the State of Oklahoma."

FOX 25 News in Oklahoma City reported last week on the transcript being sealed. Even though the transcript had been unsealed, the news station was not able to obtain a copy until Friday.

As the station noted Monday night, the transcript reveals hard feelings between the judge and the district attorney's office.

At one point, Bass-Lesure accused Assistant District Attorney Jennifer Chance of having verbally attacked her after Bass-Lesure was asked to step down from the high-profile murder trial of an Oklahoma City pharmacist.

Chance pointed out to Bass-Lesure that she was out of town when that occurred. It was Chance's boss, District Attorney David Prater, who had made the comments Bass-Lesure complained about.

An investigation by Prater's office had found that Bass-Lesure gave a defendant the names of three attorneys even though he had a drug case assigned to her. The Oklahoman reported:

Prosecutors had the gym trainer wear a hidden microphone July 22 to record a conversation with the judge. Prosecutors told the judge this week they would file a judicial complaint against her, sources have said. One attorney listed by the judge is representing the pharmacist.

A group of black pastors and community leaders then called for a civil rights investigation of Prater for "going after" Bass-Lesure and another black judge.

In response to that criticism, Prater said of Bass-Lesure:

What became obvious to us is that the State of Oklahoma was not going to be able to get a fair trial due to some alleged activities by the judge in [the murder trial of the pharmacist]. It's incredibly unfortunate that this judge did this. It's incredibly irresponsible, it's immoral and it's corrupt. And it's her fault -- her fault, no one else's -- that we're in this situation right now.

A week after the Sept. 8 hearing, it was announced that Bass-Lesure would no longer hear criminal cases as of Jan. 1. Instead, she will take over probate, guardianship and adoption cases.

During the hearing Sept. 8, Bass-Lesure seemed to imply that Chance was incompetent, questioning why every time she appeared before the judge she was accompanied by either Prater or First Assistant District Attorney Scott Rowland.

Chance said they accompanied her only in cases involving the particular defense attorney because he had yelled at her. The defense attorney then interjected that he had yelled her name in a courthouse hallway only after she had been rude and then walked away without acknowledging his request.

As for the argument with Chance and Rowland on Sept. 8, Bass-Lesure told FOX 25 News that she didn't say or do anything inappropriate but wouldn't explain why she sealed the transcript.

The transcript should never have been sealed, and her order doing so would not have survived a legal challenge. Federal courts have said judicial documents are presumptively open to the public and may be sealed only if that right to access is outweighed by the compelling need to protect higher interests. No compelling reason existed in this situation.

Instead, reading the transcript reminded me of Daniel Tosh's parody of a childish insult, "I'm
better than you, na-na, na-na, boo-boo, go stick your head in doo-doo."

Better behavior is expected of those responsible for administering justice in our courtrooms.


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

Open records lawsuit seeks information packets, documents from Bartlesville Redevelopment Trust Authority

Two FOI Oklahoma members are suing the Bartlesville Redevelopment Trust Authority for copies of the information packets and other documents given to its seven-member board for regular and special meetings.

Joel Rabin and Sharon Hurst have been requesting the records in writing since late August, according to the lawsuit filed Wednesday in Washington County District Court.

The Osage County residents have received no response to their requests, according to the lawsuit.

The Bartlesville Redevelopment Trust Authority was formed by the Bartlesville City Council to help develop downtown Bartlesville. According to its website:

One way the BRTA seeks to do this is by acquiring properties within or near the downtown area and making those properties available for redevelopment by private parties.

According to the lawsuit, Bartlesville City Clerk/Treasurer and Finance Director Mike Bailey told Rabin on Aug. 23 that attorney Dan McMahan of Oklahoma City would handle open records requests for the BRTA.

Rabin and Hurst are requesting the information packets and other documents distributed at BRTA meetings since Jan. 1.

Information packets distributed along with agendas to members of public bodies are open to the public under the Open Records Act, a state trial judge held in April 2004. (See Shero v. City of Grove, No. 05-CV-0137-CVE-PJC, 2006 U.S. Dist. LEXIS 80462, at **4-5 (N.D. Okla. Nov. 2, 2006))

“It is clear that the packets are public records,” said Delaware County District Judge Barry Denney. “The city can keep confidential or delete records they believe to be of confidential nature before distributing them to those who request copies.”

Under the Open Records Act, “A public body must provide prompt, reasonable access to its records....” (OKLA. STAT. tit. 51, § 24A.5(5))

A 1999 attorney general opinion stated succinctly that “prompt, reasonable access” generally means “only the time required to locate and compile” the public records. (1999 OK AG 58, ¶ 15)

“There is no provision in the Open Records Act for a public body to ‘withhold’ records for any amount of time, however small. The duty to provide prompt and reasonable access is complied with only when a public body properly attends to its duty to provide a record,” the opinion said. (Id. ¶ 11)

Rabin and Hurst are being represented by Doug Wilson, a Stillwater attorney and FOI Oklahoma Inc. board member.

The BRTA board members are Walter Allison, Jon Baccus, Randy Bluhm, Sherri Musselman Cox, City Councilman Tom Gorman, David Oakley Jr and Donna Skelly.




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

Oklahoma County judge seals transcript of her courtroom argument with prosecutors

Oklahoma County District Judge Tammy Bass-LeSure sealed the transcript of an open court hearing in September in which she had a heated argument with prosecutors, FOX 25 in Oklahoma City reported Wednesday.

Bass-LeSure yelled at prosecutors after they asked her to step down from a criminal trial in which the defense attorney was one of three attorneys the judge had recommended to a criminal defendant with a pending case assigned to her, the television station reported.

The district attorney’s complaint about that recommendation led to Bass-LeSure recusing herself in late August from the murder trial of an Oklahoma City pharmacist because one of his defense attorneys also was among those three.

In mid-September, Bass-LeSure announced she would no longer hear criminal cases as of Jan. 1.

Bass-LeSure was presiding over a criminal hearing on Sept. 8 when prosecutors asked that she remove herself from that case as well, FOX 25 reported.

After a heated exchange with the prosecutors, Bass-LeSure ordered the transcript of the hearing sealed, the station reported.

On Sept. 20, a court order was issued releasing the transcript “to the State of Oklahoma.” The order was signed by Oklahoma County District Judge Lisa Davis on behalf of Judge Ray C. Elliott, according to the court document.

FOX 25 was not able to obtain a copy of the transcript Wednesday.

Bass-LeSure’s order sealing the transcript – and a court order releasing it to only the district attorney's office – would seem unlikely to survive a legal challenge.

Federal courts have said judicial documents are presumptively open to the public and may be sealed only if that right to access is outweighed by the compelling need to protect higher interests. (See, e.g., Nixon v. Warner Communications. Inc., 435 U.S. 589, 597, 55 L. Ed. 2d 570, 98 S. Ct. 1306 (1978))

As open government attorney Bob Nelon told FOX 25:

The reason for excluding public access to the transcript of what happened in open court is so rare as to almost be unjustifiable. It is essential that the public be able to watch the justice system under way.

Perhaps someone at the Oklahoma County Courthouse or at the district attorney's office will agree and avoid the need for litigation at taxpayer expense.

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

Boynton trustees charged with Open Meeting Act violation

Boynton's three town trustees were charged Tuesday with violating the state Open Meeting Act when they voted to appoint a town manager at a Sept. 27 special meeting even though the item was not listed on the agenda.

Under way is an OSBI investigation into whether trustees violated the Open Meeting Act by prohibiting the recording of public meetings by audience members and by locking residents out of public meetings.

Trustee Elmer Claiborne Lang, 51, was arrested at his home Tuesday and then bonded out of jail. Mayor Susie Marie Wilson, 54, and Trustee Sheila Younger, 50, surrendered themselves this morning and were making arrangements to pay their $2,500 bonds, The Muskogee Phoenix reported today.

Violating the Open Meeting Act is a misdemeanor that can be punished by up to one year in the county jail and a fine of up to $500. Also, any action taken in “willful violation” of the Open Meeting Act is “invalid.” (OKLA. STAT. tit. 25, § 313)

Under the statute, each agenda must “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.

The Open Meeting permits "any person attending a public meeting" to record the proceedings has long as it doesn't "interfere with the conduct of the meeting." (OKLA. STAT. tit. 25,  § 312(c))

News coverage:

• Warrants issued for town officials, Donna Hales, The Muskogee Phoenix, 10.5.10
• 3 Boynton officials charged with Open Meeting Act violations, Susan Hylton, Tulsa World, 10.6.10

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

National education reporter questions claim by OSU, OU that FERPA prohibits release of campus parking ticket data

Claims by two Oklahoma universities that releasing campus parking ticket data would violate student privacy laws were questioned by a top education reporter at a recent national conference.

Oklahoma State University and the University of Oklahoma last spring both refused requests to release parking ticket data. OSU alone issued more than 18,000 tickets from Aug. 1, 2009, to April 9, 2010, The Daily O'Collegian reported.

Officials for OSU and OU say releasing names of ticket recipients would violate the Family Educational Rights and Privacy Act, a federal statute passed to protect specific student records, such as grades.

“I don’t see how that argument could ever stand up,” said Kathryn Masterson, a reporter for The Chronicle of Higher Education.

Masterson made her comments during a panel discussion on higher education at the Investigative Reporters and Editors national conference in June. More than 800 journalists attended.

“My question might be why? Are they pulling in more money from parking tickets?” Masterson asked.

The universities made the argument in response to a request by a student journalist at Oklahoma State University.

Universities that use FERPA to deny access to campus parking ticket information were called “obstructionist” by the Student Press Law Center.

FERPA is one of the most widely used --- and abused --- excuses for universities seeking to withhold records that would otherwise be public under state sunshine laws. Courts have repeatedly struck down such broad interpretations.

“And yet colleges persist in defining any piece of paper in their possession as an ‘educational record’ when nondisclosure suits their purposes,” the SPLC said in a press release last May.

Universities have even used FERPA to refuse public access to college athletic departments’ airplane passenger manifests and complimentary ticket lists, a 2009 report by The Columbus Dispatch showed. The newspaper also showed that FERPA has been used to block parents from getting life-saving information about their own children’s medical conditions.

In another case, a Wisconsin university provided an “almost completely erased” tape recording of a university committee meeting to a campus newspaper. The university argued the voices of students at the public meeting are shielded by FERPA, the SPLC reported.

Northwestern Oklahoma State University's claim in June that FERPA prohibits it from disclosing which students receive scholarships funded by Alva's sales taxes is another example of why the statute is "broken," said the SPLC executive director.

Former U.S. Sen. James L. Buckley of New York, the primary FERPA author, has said the law “needs to be revamped” because of abuses by colleges and universities.


Ryan McNeill
Computer-Assisted Reporting Editor
Dallas Morning News