FOI Oklahoma

Tulsa mayoral candidate won't sign FOI Oklahoma's Open Government Pledge

noreply@blogger.com (FOI OKLAHOMA Inc.) — Wed, 15 May 2013 21:46:00 +0000

Kathy Taylor won't sign a pledge promising voters that she will comply with the state's open government laws if elected to her old job as Tulsa mayor.

Taylor and her two opponents, Mayor Dewey Bartlett Jr. and former City Councilman Bill Christiansen, were sent letters Monday asking them to sign FOI Oklahoma's Open Government Pledge as they campaign for Tulsa's first non-partisan mayoral primary on June 11.

Bartlett and Christiansen haven't responded to the request. Both men signed the pledge when they ran for offices in 2009: Bartlett for mayor, and Christiansen for re-election to the City Council.

Taylor's political director, Monroe Nichols, responded on her behalf in an email Tuesday.

"While Kathy is a supporter of your message and mission, she's not signing issue pledges during the campaign," Nichols wrote.

Some 140 candidates have signed the pledge since FOI Oklahoma began it in spring 2008. Just over half -- 73 -- have been elected.

The pledge was begun as part of a national effort to spur public commitments to government transparency from candidates for president down to city council contests.

By signing the pledge, candidates for state and local offices promise that their respective governments 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."

Taylor, Bartlett and Christiansen recently responded to a Tulsa World survey asking how they "would improve the openness of city government, including communications and open records policies."

Taylor said Tulsa "should have an open-platform data portal that allows fast responses to Open Records requests, instant access to city information and encourages the development of new and innovative applications for that data that improve the way the city runs."

Nichols described Taylor as "a strong supporter of transparency and open government."

Taylor's campaign website says that if elected, she will:

Improve city government transparency and responsiveness by working to speed up responses to public requests for information, and increasing accountability to the public for timely service.
Bring Tulsa government into the 21st Century by making more public records, forms, and services accessible to all citizens online.

However, it doesn't mention ensuring Tulsa's compliance with the state's open government laws.

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.

Student journalist sues OU for access to parking ticket information

noreply@blogger.com (FOI OKLAHOMA Inc.) — Tue, 14 May 2013 18:22:00 +0000

The University of Oklahoma's claim that parking tickets issued to students are private educational records is being challenged in court by a former online editor for The Oklahoma Daily.

Joey Stipek is asking a Cleveland County judge to order OU officials to release all parking citations issued by the university.

Stipek's lawsuit, filed Friday, stems from OU's refusal to release electronic copies of parking citations issued to students in the spring 2012 semester. OU's open records officer, Rachel McCombs, claimed the information is confidential under the federal Family Educational Rights and Privacy Act, or FERPA, according to Stipek's lawsuit.

OU and Oklahoma State University officials have made that claim for years even though courts in other states have ruled otherwise.

In 1998, for example, the Maryland Court of Appeals unanimously ruled that FERPA "was not intended to preclude the release of any record simply because the record contained the name of a student." (Kirwan v. The Diamondback, 721 A.2d 196, 27 Media L. Rep. 1399 (Md. Ct. App. 1998))

The court reasoned:

The federal statute was obviously intended to keep private those aspects of a student's educational life that relate to academic matters or status as a student.

Nevertheless, in addition to protecting the privacy of students, Congress intended to prevent educational institutions from operating in secrecy.

Prohibiting disclosure of any document containing a student's name would allow universities to operate in secret, which would be contrary to one of the policies behind the Family Educational Rights and Privacy Act.

Universities could refuse to release information about criminal activity on campus if students were involved, claiming that this information constituted education records, thus keeping very important information from other students, their parents, public officials, and the public.

We hold that "education records" within the meaning of the Family Educational Rights and Privacy Act do not include records of parking tickets or correspondence between the NCAA and the University regarding a student-athlete accepting a loan to pay parking tickets.

The university's student newspaper had sought the records after learning that a basketball player had nearly 300 parking violations, many for parking in handicapped spaces, and more than $8,000 in unpaid parking fines.

In 2011, a North Carolina judge ruled that parking tickets issued to UNC athletes "are not education records protected by FERPA."

The "remote possibility" that repeated parking violations would result in disciplinary action "does not constitute a sufficient 'threat' to cloak every student with invisibility about the number of parking tickets he or she receives," the judge said.

(Similarly, the judge ruled that student phone numbers on UNC coaches' cell phone bills were public records, saying: "FERPA does not provide a student with an invisible cloak so that the student can remain hidden from public view while enrolled at UNC. The telephone number is not part of the education record protected by FERPA.")

The N.C. judge's ruling was another example of courts telling universities that "FERPA is not to be applied in an absurd way to conceal information that is not educational," said Frank LoMonte, executive director of the Student Press Law Center.

LoMonte recently said OSU officials shouldn't just ignore those court rulings and should stop "relying on this unsustainable interpretation of FERPA that is inconsistent with the way other people read it and undermines the public interest."

If parking tickets are indeed educational records, LoMonte told The Daily O'Collegian, then the university is violating FERPA by placing them on windshields in public view.

"They certainly wouldn't take your report card and stick it under your windshield wiper and leave it on public display for anyone to see," LoMonte said.

Stipek had sought OU's parking tickets to determine if preferential treatment had been given to anyone, especially athletes.

After being denied access, Stipek asked for all non-student parking citations. But the university replied that it didn't have the technological capability to redact student information from the database, according to his petition.

Stipek's lawsuit was filed against McCombs and OU President David Boren. Stipek's attorney is Nicholas Harrison, who received FOI Oklahoma's 2012 Ben Blackstock Award because of his reporting for The Oklahoma Daily as a University of Oklahoma law school student.

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.

Re-elected incumbent, two other Stillwater candidates pledged to comply with open government laws

noreply@blogger.com (FOI OKLAHOMA Inc.) — Thu, 09 May 2013 21:34:00 +0000

Stillwater City Council incumbent Joe Weaver had signed FOI Oklahoma's Open Government Pledge before his re-election in early April.

Nine pledge-signers, including Weaver, were elected in municipal elections on April 2.

Weaver, OSU's administration & finance vice president, promised that he and the Stillwater city government "will comply with not only the letter but also the spirit of Oklahoma's Open Meeting and Open Records laws."

Weaver 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."

Also signing the pledge prior to the election were Weaver's opponent OSU employee Micah LeFebvre and incumbent Philip Pina, who lost to Gina Noble, an OSU faculty member who also had signed the pledge.

The Stillwater League of Women Voters collected the signed pledges from Weaver, LeFebvre and Pina in late March but didn't mail them to FOI Oklahoma until after the election.

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.

Signers are listed on the FOI Oklahoma website.

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

State officials refuse to release health care report from consultant

noreply@blogger.com (FOI OKLAHOMA Inc.) — Wed, 08 May 2013 17:06:00 +0000

State officials are refusing to release a consultant's findings for a plan to cover people without health insurance, Oklahoma Watch reports.

The Oklahoma Health Care Authority is claiming the findings, though delivered to the state agency, are covered by an exemption in the state Open Records Act for "personal notes and personally created materials."

Oklahoma Watch noted that the state hired the consultant, Leavitt Partners, for $500,000 in January to review operations of the state’s Medicaid program, SoonerCare, as well as other states' health programs that would expand health coverage and improve health outcomes.

Oklahoma Watch said the final report would be released June 30 and incorporate feedback from state officials.

In the meantime, the Oklahoma Open Records Act contains no provision allowing governments to keep "drafts" secret from the public.

The statute permits governments to keep confidential "personal notes and personally created materials . . . prepared as an aid to memory or research leading to the adoption of a public policy or the implementation of a public project."

The exemption applies only prior to the official "taking action, including making a recommendation or issuing a report." (OKLA. STAT. tit. 51, § 24A.9)

An agency spokeswoman told Oklahoma Watch that the consultant’s draft report contains the findings of its months-long study.

Some of the findings and recommendations from the plan will be presented in a PowerPower slide-show presentation at the Oklahoma Health Care Authority's board meeting Thursday, Oklahoma Watch reports.

An Oklahoma Health Care Authority spokeswoman said the slide show will be released after the meeting.

But Howard Pallotta, general counsel for the Health Care Authority, told Oklahoma Watch that the agency does not have to immediately release the draft report or PowerPoint images in response to Oklahoma Watch's records request.

Pallotta's statement seems contrary to the Open Records Act and to a 2009 state Court of Civil Appeals decision ordering Lawton officials to release a "draft" audit conducted by an independent auditor. (Int'l Union of Police Assoc. v. City of Lawton, 2009 OK CIV APP 85)

"In determining whether material is a 'record' subject to inspection under the ORA, or exempted 'personally created materials,' we 'focus on the totality of the circumstances surrounding the creation, maintenance, and use of the document,' regardless of the 'status' of a document as 'preliminary' or 'final,'" the court said. (Id. ¶ 18)

At the time the police union had requested the audit, the court noted, "City clearly possessed and controlled a preliminary draft of the requested Audit Report." (Id. ¶ 19)

"And most importantly," the court said, "it is also undisputed that City used the draft Audit Report as the basis for testimony and evidence offered at the arbitration hearing, and the fact that City withdrew its exhibits based on the draft Audit Report does not alter the fact that City used the draft Audit Report to prepare for and oppose Union's requested arbitration. (Id.)

"Given ... City's use of the draft Audit Report to prepare for and oppose Union's demanded arbitration, we hold Union was entitled to inspect and copy the draft Audit Report under the ORA," the court concluded. (Id. ¶ 20)

Oklahoma Health Care Authority officials concede that the state agency has received the report and is making use of it. In other words, state officials clearly possess and control the report.

The court in 2009 had also taken into account 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." (Id. ¶ 13, quoting OKLA. STAT. tit 51, § 24A.2)

Given that purpose, the Oklahoma Supreme Court said in 1986, "Disclosure is to be favored over a finding of exemption" when public bodies and courts rule on records requests. (Tulsa Tribune Co. v. Okla. Horse Racing Comm’n, 1986 OK 24, ¶ 22)

The Oklahoma Health Care Authority is "the primary entity in the state of Oklahoma charged with controlling costs of state-purchased health care." The seven members of the OHCA Board are appointed by the governor, Senate president pro-tempore and House speaker.

Time for these elected officials to tell their political appointees to cough up now the report already in the hands of OHCA.

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.

OSU officials drop proposed policy forcing faculty lawsuits for personnel records

noreply@blogger.com (FOI OKLAHOMA Inc.) — Mon, 29 Apr 2013 17:55:00 +0000

Oklahoma State University won't be adopting the University of Oklahoma's policy of forcing faculty to sue for personnel records guaranteed to them by the state Open Records Act.

OSU officials dropped the proposed policy change on peer-review letters last week after the chairman of its governing board told them he opposed it because it would violate the Open Records Act.

Just like OU's current policy, the proposed change would have forced OSU faculty to sue their school to obtain un-redacted copies of letters written by professors at other universities that OSU officials use in deciding whether to grant tenure and promotions to faculty.

Under OSU's current policy, faculty members may obtain the original peer-review letters if they chose early in the process not to waive their right to them under the Open Records Act. (Reappointment, Promotion and Tenure Process for Ranked Faculty, 2.2(b)(7)(2006))

But the proposed change would have dropped the waiver option and provided faculty members with copies of their letters only after each "external reviewer's name, institutional affiliation and relationship with the candidate are redacted."

The university would have provided the faculty member with the original letters "only when required to do so by a legal proceeding."

OSU officials had wanted the new policy approved by the Oklahoma A&M Board of Regents on Friday. But Tuesday, OSU General Counsel Gary Clark told President Burns Hargis and Provost Robert Sternberg via email that regents Chairman Andy Lester "says that he would oppose the change … as violating the Open Records law."

"We need to pull the item from the agenda," Clark wrote.

Sternberg relayed that news to Faculty Council officers via email, adding, "It sounds like the new proposed procedure with redacted letters is dead.

"I will leave it to my successors to figure out how to move forward," said Sternberg, who is leaving OSU to become president of the University of Wyoming.

Lester's rejection of the change seemed to perplex Sternberg, in part because OU Provost Nancy L. Mergler had told Sternberg that OU has used the same policy for years.

"I thought that OU has used an analogous procedure for years with no problem, but perhaps I misunderstand what they do," Sternberg wrote.

No, he hadn't misunderstood. Under OU's policy, peer-review letters "solicited in confidence or sent with the expectation of confidentiality shall be deemed confidential and unavailable to the employee unless otherwise ordered by a court of law." (Access to Personnel File Policy, Faculty Handbook, 5.34.4)

Put another way by an OU official:

"The way I think Legal articulates our position is, we recognize that we have to give them up unredacted, but we won’t unless you sue us to get them," explained OU Associate Provost Gregory M. Heiser in an email that Mergler forwarded to Sternberg in October 2011.

Sternberg had asked Mergler whether OU's peer-review letters were open "or do you have a way around this?"

She told Sternberg that "twice in the past 16 years [OU] had to produce redacted letters when there was a faculty appeal of the tenure recommendation and the faculty member hired independent counsel."

However, Mergler also told Sternberg, "I am sure with the current tea party folks so intent on open records ……that we will be getting a more aggressive challenge sometime soon."

OU should expect challenges to a policy that forces faculty members to sue for their personnel records.

Such a policy violates the state Open Records Act, as I explained to the Faculty Council, with Hargis and Sternberg attending, in March 2012 and reiterated in The Daily O'Collegian in February.

The Open Records Act grants each public employee "a right of access to his own personnel file." (OKLA. STAT. tit. 51, § 24A.7(C))

A 1986 Oklahoma attorney general opinion also supports the right of faculty members to obtain un-redacted peer-review letters. (1986 OK AG 39)

The opinion said personnel investigations are part of personnel files and that Oklahoma State Bureau of Investigation employees were entitled to review any materials gathered in the background investigation of them. (¶ 3)

Moreover, OSBI could not withhold the names of confidential informants who had provided information for criminal background checks of employees unless the informant objected and then the agency determined on a case-by-case basis that releasing the name would damage the confidential informant. (¶ 16)

But OSU officials wanted to create – and OU has – a blanket policy of withholding the names of full professors at other universities who write peer-review letters for tenure and promotion decisions. Those authors – who OSU policy says "should be leading scholars in their disciplines" – would be hard-pressed to reasonably argue that they would be "damaged" by the disclosure of their identities to the OSU faculty members.

Not telling faculty that they have a right to the peer-review letters doesn't mean the right is nonexistent. It does, however, say quite a bit about the ethics and integrity of an institution's leaders.

Fortunately, Lester was willing to respect the statutory right of OSU faculty members to access their personnel files without having to sue the school.

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.

School board members must take open government training

noreply@blogger.com (FOI OKLAHOMA Inc.) — Thu, 11 Apr 2013 17:30:00 +0000

School board members will have to undergo at least one hour of training in the state's Open Records and Meeting laws, under a bill signed Wednesday by Gov. Mary Fallin.

Senate Bill 91, which takes effect July 1, had passed the House last week by a 93-2 vote.

Opposing the bill were two Democrats: Minority Caucus Chair Jerry McPeak of Warner, who is a former school board member, and Rebecca Hamilton of Oklahoma City.

The bill, by Sen. Eddie Fields, R-Wynona, amends current training requirements for school board members that must be completed within 15 months of being elected, re-elected or appointed.

Otherwise, the school board member must vacate the seat and cannot be reappointed or re-elected for three to five years, depending upon how many members serve on the school board. (Okla. Stat. tit. 70, 5-110(C))

That's an important difference from the open government training requirement for newly elected municipal officials. That statute requires the training to be completed in their first year of office or they "shall cease to hold the office." However, it doesn't explicitly prohibit them from being reappointed once the training is completed. (OKLA. STAT. tit. 11, § 8-114(E))

In December, Kiowa trustees reinstated a former trustee who had been forced to resign because he hadn't taken the training.

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.

The Lost Ogle, ACLU challenge Gov. Fallin's claim of privileges to withhold records

noreply@blogger.com (FOI OKLAHOMA Inc.) — Wed, 10 Apr 2013 20:00:00 +0000

The Lost Ogle and the ACLU of Oklahoma followed through Tuesday on their threat to sue Gov. Mary Fallin over her refusal to provide records.

The lawsuit, filed in Oklahoma County District Court, challenges Fallin's claim that executive and deliberative process privileges permit her to keep secret 100 pages of advice from "senior executive branch officials" on the creation of a state health insurance exchange.

(Vandelay Entertainment LLC v. Fallin, Mary, No. CV-2013-763 (Okla. Co. April 9, 2013))

Fallin's general counsel, Steve Mullins, has asserted that her communications with her 14 Cabinet members are protected by these privileges under the state Constitution provision creating three branches of government. (OKLA. CONST. art. 4, § 1)

Mullins also made that assertion in November when refusing to provide the Tulsa World with records related to implementing reforms to the corrections system.

(Also read Mullins' letter to The Oklahoman in November in which he explained various privileges that could be claimed by Fallin.)

ALCU Legal Director Brady R. Henderson emphasized Tuesday that executive and deliberative process privileges are not explicitly found in the Oklahoma Constitution and haven't been recognized by our state courts.

"Mary Fallin is the first Governor of Oklahoma to challenge the people's right to be fully informed about their government," Henderson said. "We filed this lawsuit to make sure she also will be the last."

Fallin's unprecedented use of "executive privilege" in Oklahoma to hide records from the public earned her FOI Oklahoma's annual Black Hole Award in early March.

If recognized by Oklahoma courts, these privileges would turn the state Open Records Act upside down. Under the statute, the government official denying access must cite an applicable state or federal statutory exemption. But under these privileges, the burden would fall on Oklahomans to prove to a court that they should be allowed to see the government records.

These privileges also would allow Fallin to claim secrecy for records that would be open to the public if in the hands of local officials because the Legislature has not deemed the information confidential.

Executive and deliberative process privileges represent a disagreement over the public's fundamental role in overseeing its government, including the formulation of policy on its behalf.

If Oklahomans are to meaningfully participate in their government and understand the governmental decisions affecting their lives, they must be privy to the deliberative discussions revealing why officials chose one alternative and rejected others.

Knowing why action was taken or not taken is as important as knowing what the outcome is. The public is entitled to evaluate what was considered and why it was rejected. Was it for the best reasons, or just for politics?

Oklahomans should know because it is our government. The state Open Records Act emphasizes:

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.

The purpose of this act is 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)

As a gubernatorial candidate seeking public support, Fallin pledged to support that policy "at every opportunity."

But if Fallin wins this lawsuit, her legacy as governor will be just the opposite of what she promised Oklahomans when she was asking for their votes. She will be responsible for a new layer of secrecy behind which governors may hide the public's business.

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.

8 pledge signers elected Tuesday

noreply@blogger.com (FOI OKLAHOMA Inc.) — Thu, 04 Apr 2013 17:04:00 +0000

Eight of the 13 municipal candidates who had signed FOI Oklahoma's Open Government Pledge were elected Tuesday.

They have promised that they and their city governments "will comply with not only the letter but also the spirit of Oklahoma's Open Meeting and Open Records laws."

Four were challengers: three in Norman and one in Stillwater.

Three pledge signers were involved in close elections. In Guthrie, Ward 3 incumbent Gaylord Z. Thomas won by nine votes.

In Norman, challenger Stephen Tyler Holman was elected over another pledge signer, incumbent Linda Lockett, for the Ward 7 seat by 27 votes.

Another pledge signer in Guthrie, Trey Ayers, lost his bid for mayor but remains on the council as the Ward 1 representative.

Here is the list of winners by city:

Guthrie City Council
- John Wood, Ward 1 (re-elected)
- Gaylord Z. Thomas, Ward 3 (re-elected)
Norman

Cindy Rosenthal, mayor (re-elected)
Greg Heiple, Ward 1 (challenger)
Robert Castleberry, Ward 3 (re-elected)
Lynne Miller, Ward 5 (challeger)
Stephen Tyler Holman, Ward 7 (challenger)

Stillwater

Gina Noble, Seat 2 (challenger)

Each 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."

What if they don't live up to these promises now that they've been elected?

Then voters should show them the door at the next election and elect people with the integrity to conduct our government in the open. Ultimately, it's up to the voters to hold our elected officials accountable.

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.

Norman council candidate signs Open Government Pledge

noreply@blogger.com (FOI OKLAHOMA Inc.) — Sun, 31 Mar 2013 14:55:00 +0000

A Norman City Council candidate has promised that if elected Tuesday, she and the city government "will comply with not only the letter but also the spirit of Oklahoma's Open Meeting and Open Records laws."

By signing FOI Oklahoma's Open Government Pledge, Lynne Miller also promised "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."

Miller, a retired Norman Public Schools principal, is seeking the Ward 5 seat in the election.

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.

Signers are listed on the FOI Oklahoma website.

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

Gov. Fallin claims executive, deliberative process privileges to withhold documents related to her reversal on 'Obamacare' policy

noreply@blogger.com (FOI OKLAHOMA Inc.) — Sat, 30 Mar 2013 13:00:00 +0000

Gov. Fallin won't release 100 pages of advice from her "senior executive branch officials" on the creation of a state health insurance exchange, her general counsel told reporters Friday.

Fallin invoked executive, deliberative process and attorney-client privileges to keep the documents from the public, Steve Mullins said in a letter to reporters picking up digital copies of more than 50,000 pages.

Claiming executive and deliberative process privileges to hide records is unprecedented for an Oklahoma governor. Our state courts have not recognized these privileges. The state Open Records Act doesn't include these exemptions.

But Mullins, a former federal prosecutor, contends that Fallin should be allowed to claim the same privileges given to the U.S. president.

The irony is that while many Oklahomans are calling on Fallin to reject what they believe is federal interference in their lives, her attorney is relying in part on federal law to hide government documents from them.

Mullins also asserts that Fallin's executive and deliberative process privileges are grounded in the state Constitution provision creating three branches of government. (OKLA. CONST. art. 4, § 1)

Other attorneys disagree:

"To my knowledge there is no exception in the Open Records Act, nor is there any case law, affording an executive officer in Oklahoma, a public official in the executive branch in Oklahoma, for some kind of executive privilege or deliberative process privilege that is being exerted," media attorney Bob Nelon told The Norman Transcript on Friday.

"They are creating that, in my view, out of whole cloth," Nelon said. "They’re making it up as they go."

ACLU Oklahoma Legal Director Brady R. Henderson agreed with Nelon.

"They're using assertions of executive privilege that aren't in the law to limit people's access to government," Henderson told the Tulsa World on Friday.

"At the end of the day, it's extremely hard, if not impossible, for the public to review that decision. It effectively is the government saying, 'You don't need to see what I'm doing, just trust me.'"

Executive and deliberative process privileges represent a disagreement over the public's fundamental role in overseeing its government, including the formulation of policy on its behalf.

The records released Friday -- and presumably those withheld -- concern Fallin's policy decisions regarding "Obamacare," including her decisions to reject federal funding for Medicaid expansion and not to build a state-based health insurance exchange. Fallin had first accepted a $54 million federal grant to create the exchange, then abruptly reversed course and returned the money.

Knowing why action was taken or not taken is as important as knowing what the outcome is. The public is entitled to evaluate what was considered and why it was rejected. Was it for the best reasons, or just for politics?

Oklahomans should know because it is our government. The state Open Records Act emphasizes:

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)

As a gubernatorial candidate, Fallin signed FOI Oklahoma's Open Government Pledge, promising to support that right "at every opportunity."

But her legacy will be creating a layer of secrecy for governors to hide behind.

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.

ACLU of Oklahoma threatens Gov. Fallin with lawsuit over records denial, notes apparent Open Records Act violation by her office

noreply@blogger.com (FOI OKLAHOMA Inc.) — Wed, 27 Mar 2013 23:20:00 +0000

If Gov. Mary Fallin continues to deny access to emails and other correspondence related to her refusal to create a state health insurance exchange, the ACLU of Oklahoma will seek a court order compelling her to release the records, the organization said Wednesday on behalf of The Lost Ogle.

The website's Dec. 10 request for the records has been "met with gross indifference, if not outright defiance," ALCU Legal Director Brady R. Henderson said in a letter Tuesday to Fallin's general counsel, Steve Mullins.

Henderson said that when he went to the governor's office this past Thursday and asked to inspect "whatever records were available on hand," he was told that Mullins is the only person authorized to release records and that he was out of town for the week.

However, the Open Records Act requires that "at least one person shall be available at all times to release records during the regular business hours of the public body." (Okla. Stat. tit. 51, § 24A.5(6))

Henderson noted in his letter, "The Open Records Act is quite explicit on this point.

"If this violation ... continues following a reasonable period in which to make corrections, there can be no question that it is a willful violation, and thus appropriate for criminal prosecution," Henderson said.

Henderson also noted that while The Lost Ogle has "received no substantive response" to it records request, other journalists seeking the same records "have been met with false claims of a non-existent 'executive privilege' to deny them records to which they are lawfully entitled."

Coupled with the office's failure to have someone available to release records, Henderson said, the claim of executive privilege "suggests that Governor Fallin not only fails to take the Open Records Act seriously, but fails to understand the broader implications for the citizens of Oklahoma.

"Such conduct rides roughshod over the people's right to open and accountable government," Henderson said.

(Read the ACLU of Oklahoma press release issued Wednesday.)

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.

Blanchard, Depew incumbents seeking re-election promise to comply with spirit, letter of open government laws

noreply@blogger.com (FOI OKLAHOMA Inc.) — Sat, 23 Mar 2013 05:08:00 +0000

Blanchard Mayor Frank Broyles and Depew Town Trustee Mylora Tuttle have signed FOI Oklahoma's Open Government Pledge as they seek re-election April 2.

Broyles and Tuttle pledged that if re-elected, they and their municipal governments "will comply with not only the letter but also the spirit of Oklahoma's Open Meeting and Open Records laws."

They also promised "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."

Broyles had signed the pledge in 2011 prior to being elected to fill an unexpired term to represent Ward 4 on the City Council.

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.

Signers are listed on the FOI Oklahoma website.

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

OSU winner of Black Hole Award from national SPJ

noreply@blogger.com (FOI OKLAHOMA Inc.) — Sat, 23 Mar 2013 03:15:00 +0000

The national Society of Professional Journalists has selected Oklahoma State University as the winner of its third-annual Black Hole Award.

Oklahoma State was nominated by the Student Press Law Center for, among other things, ignoring the Clery Act in not notifying students, the public or its own police department that university officials were aware of the presence of an accused serial sex offender on campus. When asked why, OSU officials cited FERPA confidentiality requirements.

SPJ FOI Committee member Don Meyers said:

Using a federal education privacy law that pertains to grades to keep the campus in the dark about a sex offender who appears to be predatory is the textbook definition of egregious. If a municipal police force had pulled that shenanigan, they'd be in trouble on multiple fronts. FERPA was not meant to be a "Harry Potter"-like invisibility cloak that could turn any record that names a student into a protected document.”

(The Board of Regents for Oklahoma State University and the OSU administration were given FOI Oklahoma's Black Hole Award in 2009 for "routinely conducting the public’s business outside the public’s view. Regents secretly discuss proposals among themselves and with college officials prior to public meetings.”

OSU administrators were faulted for claiming public business conducted on personal smart phones is secret, in contradiction to interpretations by attorneys general in several states. An Oklahoma attorney general opinion later said public business is public regardless of whether the government or the official owns the device used to create or maintain the record.)

For information on SPJ's Black Hole Award, contact Linda Petersen, chairman of the national SPJ FOI Committee, at 801-554-7513.

Guthrie candidates sign Open Government Pledge

noreply@blogger.com (FOI OKLAHOMA Inc.) — Tue, 19 Mar 2013 19:36:00 +0000

A Guthrie city councilman running for mayor and a fellow incumbent seeking re-election have pledged to support the letter and spirit of Oklahoma's open government laws.

By signing FOI Oklahoma's Open Government Pledge, the candidates also promised 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."

Signing the pledge were Trey Ayers, a Ward 1 incumbent running for mayor; and Gaylord Z. Thomas, a Ward 3 incumbent running for re-election on April 2.

The Guthrie City Council consists of seven members. The mayor is elected to two-year terms. The six remaining members represent three wards -- two council members per ward -- and are elected to four-year terms. Four seats on the council are open for election every two years. All elections are non-partisan.

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.

Signers are listed on the FOI Oklahoma website.

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

Norman mayor says she routinely seeks 'input' from entire council outside of public meetings

noreply@blogger.com (FOI OKLAHOMA Inc.) — Tue, 19 Mar 2013 15:51:00 +0000

Norman Mayor Cindy Rosenthal said she routinely sends memos to the rest of the City Council seeking "input" on whom she intends to appoint to boards and commissions, The Oklahoman reported today.

"The item is then on the agenda and a public vote is taken," Rosenthal told the newspaper.

Rosenthal said City Attorney Jeff Bryant approved sending a memo in February to all her fellow council members in which she asked for "input" on new details of a recommended compensation increase for the city manager and asked them to "let me know what direction you would like to move."

Rosenthal wrote in the memo that she would ask the city clerk to schedule a vote to set the compensation by ordinance as required by the city charter "once I make sure Council has reached consensus on the City Manager compensation adjustment...."

She told The Oklahoman that accusations she is violating the Open Meeting Act are just "politics ... there's nothing to it."

But the Open Meeting Act, as well as judicial and attorney general pronouncements on the statute for decades, clearly forbids the majority of a public body from discussing, much less reaching a consensus, on a matter of public business outside of a public meeting.

The Open Meeting Act requires that "the vote of each member must be publicly cast and recorded." (Okla. Stat. tit. 25, § 305)

The Open Meeting Act states, "No informal gatherings or any electronic or telephonic communications ... among a majority of the members of a public body shall be used to decide any action or to take any vote on any matter." (Okla. Stat. tit. 25, § 306)

In 2007, legislators added language to the statutory definition of "meeting" to clarify that a majority of a public body may gather informally as long as “no business of the public body is discussed."

In 1981, the Oklahoma Court of Civil Appeals had emphasized, "Sunshine legislation reaches, not just 'formal' meetings, but the 'entire decision-making process.'" (Matter of Order Declaring Annexation, Etc., 1981 OK CIV APP 57, ¶ 7)

A 1981 attorney general opinion said: "The legislative intent is unmistakable. 25 O.S. 306 is an absolute prohibition upon any attempt to circumvent the Open Meeting Act and obtain a consensus upon an item of business by informal meetings outside a public meeting. (1981 OK AG 69, ¶ 17)

"Permitting a single member of the governing body to obtain a consensus or vote of that body by privately meeting alone with each member, would be to condone decision-making by public bodies in secret, which is the very evil against which the Open Meeting Act is directed." (Id. ¶ 18)

A 1982 attorney general opinion said:

The requirements that members be physically present for meetings to take place and that voting be done only at meetings, provide protection against secret decision-making and further the Legislative intent of facilitating the understanding of government by informed citizens. (1982 OK AG 7, ¶ 7)

The Oklahoma Supreme Court has said that because the Open Meeting Act was "enacted for the public's benefit," the statute "is to be construed liberally in favor of the public." (Int’l Ass’n of Firefighters v. Thorpe, 1981 OK 95, ¶ 7)

The principle is “very simple," the state Court of Civil Appeals has said. "When in doubt, the members of any board, agency, authority or commission should follow the open-meeting policy of the State." (Matter of Order Declaring Annexation, Etc., 1981 OK CIV APP 57, ¶18)

In 2009, the Court of Civil Appeals said acting on the advice of an attorney did not excuse a public body's violation of the Open Meeting Act. (Okmulgee Co. Rural Water Dist. No. 2 v. Beggs Pub. Works Auth., 2009 OK CIV APP 51)

The court said the violation by the Beggs Public Works Authority, "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.'" (Id. ¶ 18)

The court quoted from a 1984 ruling in which the Oklahoma Supreme Court said, "Willfulness does not require a showing of bad faith, malice, or wantonness, but rather, 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 Act." (Rogers v. Excise Bd. of Greer County, 1984 OK 95,¶ 14)

That reasoning was adopted from a 1981 Court of Civil Appeals decision in which the lower court said that even a vote taken in "good faith" could be found to be a willful violation. (Matter of Order Declaring Annexation, Etc., 1981 OK CIV APP 57, ¶18)

"If willful is narrowly interpreted, if actions taken in violation of the Act could not be set aside unless 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," the Court of Civil Appeals explained. (Id. at ¶ 26)

"While we discern no bad faith, malice, or wantonness, and while the officials may not have consciously broken the law, we are well-convinced that they knew or should have known the Act's requirements and blatantly or deliberately disregarded the law," the court concluded in that case. (Id. at ¶ 30)

Rosenthal and the rest of the Norman City Council are responsible for knowing the requirements and prohibitions of the Open Meeting Act.

She and fellow council members Robert Castleberry, Roger Gallagher, Tom Kovach and Linda Lockett have signed FOI Oklahoma's Open Government Pledge. They promised to "comply with not only the letter but also the spirit of Oklahoma's Open Meeting and Open Records laws."

Kovach had told The Norman Transcript about the memo, which revealed that the council -- including Kovach -- had apparently violated the Open Meeting Act by reaching a consensus during an executive session to move forward on the pay increase for the city manager.

With Rosenthal up for re-election in two weeks, she says Kovach accusing her of violating the Open Meeting Act by sending the memo is just "politics." The Oklahoman article noted that Kovach is a consultant for Tom Sherman, one of Rosenthal's opponents.

But the political motivations behind revealing open government violations don't negate the violations themselves. Norman City Council members should not be reaching consensus to take actions in executive session or seeking "input" and "direction" from a majority of the council outside of meetings.

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.

Okemah News Leader says Okfuskee County jailer harassed reporter over records request for mug shot

noreply@blogger.com (FOI OKLAHOMA Inc.) — Mon, 18 Mar 2013 18:16:00 +0000

An Okfuskee County jailer last week asked an Okemah News Leader reporter why she wanted the mug shot of someone arrested and then said it was very nasty of her to dig up "crap" on people, the newspaper reported Saturday.

Booking mug shots are public records and releasing them doesn't constitute an invasion of privacy even if the person was acquitted, Oklahoma Attorney General Scott Pruitt said in a formal opinion in December. (AG: Mug shots are public records whose release isn't an invasion of privacy)

If Shakara Shepard had identified herself as a reporter, the jailer had no right to ask why she wanted the mug shot. His question would be a violation of the Open Records Act.

The person requesting a record can be asked for only enough information to determine if a search fee should be charged because the records request is for a commercial purpose, a 1999 attorney general opinion said. (1999 OK AG 55, ¶ 18-19)

Otherwise, "In no event could a public body or public official ever require a requester to provide the reason for a request for access to records," the opinion emphasized.

The news media cannot be charged a search fee. (Okla. Stat. tit. 51, § 24A.5(3))

And it's never the government official's job to pass judgment on why someone wants a public document.

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.

Apparent Open Meeting Act violations by Norman City Council

noreply@blogger.com (FOI OKLAHOMA Inc.) — Mon, 18 Mar 2013 17:10:00 +0000

The Norman City Council came to a "consensus ... to move move forward with a compensation increase" for the city manager during an executive session last month but didn't vote on the action in open session, The Norman Transcript reported Saturday.

Norman Mayor Cindy Rosenthal committed another apparent violation of the Open Meeting Act when she asked in a Feb. 19 memo for each council member's "input" on new details of the recommended increase and to "let me know what direction you would like to move."

The Norman Transcript obtained a complete copy of the memo last week after City Attorney Jeff Bryant refused to release a redacted version, claiming it was an extension of the executive session, the newspaper also reported Saturday.

But the City Council's executive session discussion could not have continued after the meeting. The council had voted to adjourn its executive session and re-enter the regular session, according to minutes of the Feb. 12 meeting.

When the council re-entered the regular session, Rosenthal announced that no action and no votes had been taken in the executive session.

Under the Open Meeting Act, "any vote or action on any item of business considered in an executive session shall be taken in public meeting with the vote of each member publicly cast and recorded." (Okla. Stat. tit. 25, § 307(E)(3))

But according to Rosenthal's memo, the council had reached a "consensus ... that the City Manager's compensation and benefits package be adjusted to track with AFSCME and NonUnion wage adjustments in FYE12 and FYE13."

"I asked the City Attorney to review these recommendations and advise if he thought there were additional issues that should be considered," Rosenthal wrote in the memo.

There was: The council cannot adjust base pay for previous fiscal years, so "the proposed pay adjustment" would leave the city manager about $5,400 short of comparable treatment of AFSCME and NonUnion pay raises, Rosenthal wrote.

"As a matter of equity, we may wish to add to the one time stipend to close that gap," Rosenthal wrote. "Attached to this memorandum are comparison calculations. I welcome your input.

"Please review this information and let me now which direction you would like to move," she wrote.

Rosenthal wrote that she would ask the city clerk to schedule a vote to set the compensation by ordinance as required by the city charter "once I make sure Council has reached consensus on the City Manager compensation adjustment...."

But for decades, the law has clearly prohibited the majority of a public body from discussing, much less reaching a consensus, on a matter of public business outside of a public meeting.

The Open Meeting Act states, "No informal gatherings or any electronic or telephonic communications ... among a majority of the members of a public body shall be used to decide any action or to take any vote on any matter." (Okla. Stat. tit. 25, § 305)

A 1981 attorney general opinion said: "The legislative intent is unmistakable. 25 O.S. 306 is an absolute prohibition upon any attempt to circumvent the Open Meeting Act and obtain a consensus upon an item of business by informal meetings outside a public meeting." (1981 OK AG 69, ¶ 17)

The statute prohibits a member from obtaining a consensus upon an item of business through a series of private one-on-one meetings, according to that attorney general opinion.

"Permitting a single member of the governing body to obtain a consensus or vote of that body by privately meeting alone with each member, would be to condone decision-making by public bodies in secret, which is the very evil against which the Open Meeting Act is directed." (Id. ¶ 18)

Rosenthal's memo is the same as meeting one-on-one to obtain a consensus.

The Oklahoma Supreme Court has said that because the Open Meeting Act was "enacted for the public's benefit," the statute "is to be construed liberally in favor of the public." (Int’l Ass’n of Firefighters v. Thorpe, 1981 OK 95, ¶ 7)

The principle is “very simple," the state Court of Civil Appeals said. "When in doubt, the members of any board, agency, authority or commission should follow the open-meeting policy of the State." (Matter of Order Declaring Annexation, Etc., 1981 OK CIV APP 57, ¶18)

Also troubling is that Rosenthal and fellow council members Robert Castleberry, Roger Gallagher, Tom Kovach and Linda Lockett have signed FOI Oklahoma's Open Government Pledge.

They promised to "comply with not only the letter but also the spirit of Oklahoma’s Open Meeting and Open Records laws."

They broke that promise by coming to a consensus in an executive session and not voting publicly. They did so again if they were among a majority of the council that later discussed and came to a consensus on the pay proposal outside a public meeting. Kovach said he alerted the newspaper to Rosenthal's memo and advised his colleagues against responding to it because doing so seemed to be a violation of the Open Meeting Act.

These apparent violations of the Open Meeting Act should be investigated and prosecuted by Cleveland County District Attorney Greg Mashburn.

Because the remedy for Oklahomans "who have no concern but that their government is working in the dark ... is a criminal prosecution for any willful violations."

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.

Prosecuting state Pardon and Parole Board is right call

noreply@blogger.com (FOI OKLAHOMA Inc.) — Sat, 16 Mar 2013 16:06:00 +0000

Oklahoma County District Attorney David Prater's prosecution of the state Pardon and Parole Board for Open Meeting Act violations is drawing unwarranted criticism from the governor and The Oklahoman's editorial writers.

All five board members -- Currie Ballard, Richard L. Dugger, Marc Dreyer, Lynnell Harkins and David Moore -- pleaded not guilty on Thursday to multiple counts of violating the statute.

Prater alleges the board broke the law by discussing and voting on early parole consideration for inmates without listing such actions as agenda items. Instead, he says, the votes took place under the vague agenda item of "Docket Modifications," which included no other information.

Board members have said those votes only determined whether an inmate would be placed on the docket of a future meeting, at which time the inmate's name would appear on the board's website.

After charges were filed Wednesday, Gov. Mary Fallin said it "will have a chilling effect on individuals interested in public service."

"It is difficult to imagine men and women who are leaders in their communities wishing to serve in these positions — the vast majority of which draw no salary — if they are constantly in fear of being charged with a crime while making a good-faith effort to follow the law and the recommendations of their paid legal advisers," said Fallin.

(The Oklahoman echoed that concern in an editorial Friday.)

Fallin appointed Ballard, Dreyer and Moore to the board in 2011.

As a gubernatorial candidate in 2010, Fallin said she would expect her appointees to public bodies to abide by the state's Open Meeting Act. But her comments this week are an insult to the thousands of Oklahomans who serve on state and local boards and commissions without violating the statute.

The Open Meeting Act, as our Court of Civil Appeals noted in 1981, "is not obscure or incomprehensible." (Matter of Order Declaring Annexation, Etc., 1981 OK CIV APP 57, ¶ 18)

"On the contrary, anyone with ten minutes to spare can read the whole thing and understand virtually every word,” the court said. "Lack of familiarity is no excuse."

The Open Meeting Act certainly shouldn't have been incomprehensible to the five parole board members. Three -- Ballard, Dreyer and Harkins -- previously served on the board. And four have experience in enforcing the law: Dreyer is a former Drug Enforcement Administration agent; Dugger was a longtime district attorney in western Oklahoma; Harkins is an attorney and former special judge; and Moore is a former U.S. Secret Service agent.

All five also had no excuse because the state Attorney General's Office told them in April 2011 that agendas must give the public actual notice of the actions that might be taken in a meeting.

In an affidavit filed with the charges, Prater's chief investigator, Gary Eastridge, described what he heard in the audio recording of the hourlong open government training session that Gay Tudor, then an assistant attorney general, conducted with the board.

While Tudor was suggesting more details be added to agenda items, Eastridge said, "a female voice can be heard referencing 'docket modifications.""

Eastridge said Tudor made clear that board members could not take action if the possibility of that action was not listed on the agenda.

"The female (believed to be Mrs. Harkins) then specifically says 'that would be like docket modification item where we are going to bring someone forward.'"

Eastridge said Tudor emphasized during the session that the agenda is "a really big thing" and that agendas should include enough information for people to have an idea of what the board intended to do.

None of what Tudor told the board was new.

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

Agendas should be worded in "plain language, directly stating the purpose of the meeting, in order to give the public actual notice. The language used should be simple, direct and comprehensible to a person of ordinary education and intelligence," the state Court of Civil Appeals has said. (Haworth Bd. of Ed. of Independent School Dist. No. I-6, McCurtain County v. Havens, 1981 OK CIV APP 56, ¶ 9)

The purpose of the Open Meeting Act "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. (Id. at ¶ 9)

Because the Open Meeting Act was "enacted for the public's benefit," the Oklahoma Supreme Court said in 1981, the statute "is to be construed liberally in favor of the public." (Int’l Ass’n of Firefighters v. Thorpe, 1981 OK 95, ¶ 7)

The principle is "very simple," the state Court of Civil Appeals said that year. "When in doubt, the members of any board, agency, authority or commission should follow the open-meeting policy of the State." (Matter of Order Declaring Annexation, Etc., 1981 OK CIV APP 57, ¶ 18)

Violating the Open Meeting Act is a misdemeanor. If convicted, the Pardon and Parole Board members could be punished by up to one year in the county jail and a $500 fine.

Those "light penalties for violating the [state's open records and meeting] laws only exacerbate the problem. Unless that changes, behavior isn't likely to either," The Oklahoman's editorial staff lamented in late August.

In the 2011 training session, Eastridge said, a board member asked Tudor if "intent" had to be proved for a criminal violation of the Open Meeting Act. She responded that willful violations don't require intent, only "'whether you knew or should have known and see now you know.'"

So the parole board members don't seem to fit Fallin's description of appointees making a good-faith effort to follow the Open Meeting Act and the recommendations of legal counsel.

Fallin also implied that political appointees serving on statewide boards and commissions fall into the same category as volunteers for charitable organizations. But the members of these government bodies make important decisions regarding state policies and spending.

The Pardon and Parole Board, for example, is "a vital part of the criminal justice system" whose mission "is to determine the best possible decision, through a case-by-case investigative process and to protect the public while recommending the supervised released of adult felons."

As Prater emphasized: "Public Safety is a core function of our government. As alleged, the Board was making crucial public safety decisions without giving the citizens of Oklahoma an opportunity to scrutinize its activities."

None of these statewide boards and commissions, however, is directly answerable to voters for their actions.

And if a Washington County district court judge is correct, civil lawsuits over Open Meeting violations may be filed only if the plaintiff was directly harmed.

Instead, the remedy for Oklahomans "who have no concern but that their government is working in the dark ... is a criminal prosecution for any willful violations," Judge Russell Vaclaw said in 2011.

Yet, Oklahomans have heard from district attorneys a long list of unfounded excuses for not prosecuting Open Meeting Act violations. When a district attorney chose not to file charges in 2011 because city council members hadn't intended to break the law, The Oklahoman complained:

Wouldn't we all love to get away with that excuse if we're pulled over for a traffic violation? Gee officer, I didn't mean to do it.

And in early August prior to Prater publicly criticizing the parole board's agendas, The Oklahoman complained about the lack of teeth in the state's open government laws, saying, "Prosecutors often are in no hurry to pursue what is a misdemeanor offense, nor do they like going after other public servants — the people who violate those laws."

But in an editorial Monday questioning Prater's decision to file charges against the parole board, The Oklahoman editorial asked, "What does it profit the state for members of this board to take a perp walk?"

The Oklahoman had answered its own question in a 2011 editorial titled "Ignorance of open meeting laws no excuse for public officials."

The laws regarding public meetings are black and white, and need to be adhered to. And those charged with enforcing the law need to do just that.

Why? Because laws regarding open meetings and open records allow the public to see how their tax money is being spent, how their elected officials are conducting their business. This is vitally important in our society.

When public officials try to avoid that light, they ought to be punished.

That remains true today.

Prosecuting the parole board is the right call.

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.

State Senate approves bill limiting authority of judges to seal court records

noreply@blogger.com (FOI OKLAHOMA Inc.) — Wed, 13 Mar 2013 21:03:00 +0000

The state Senate approved a bill Tuesday that bans Oklahoma judges from sealing court records simply because both parties agreed to the closure.

"The mere fact that the parties agree shall not be grounds to seal any records or files," states Senate Bill 1041.

The bill by Sen. Anthony Sykes, R-Moore, and Rep. Mark McCullough, R-Sapulpa, passed the Senate 43-0. Its first reading in the House was today.

Under their bill:

A court shall not seal any records or files unless specifically authorized by the Oklahoma Constitution or by statute. Prior to issuing an order sealing any records or files, the court shall make written findings of fact and conclusions of law that shall be incorporated into the order along with the specific provisions of the Oklahoma Constitution or statute that authorize such an order.

Any prior orders sealing records or files inconsistent with the requirements of this section shall be in compliance within one (1) year of the effective date of this act or shall be null and void.

The bill's effective date would be Nov. 1.

Any resident of the county in which a case record is sealed would have standing to challenge the closure and be entitled to attorney fees and court costs.

Judges could be impeached for sealing records without issuing a written finding of fact and conclusion of law that includes the state Constitution provision or statute authorizing the closure.

The sealing of court records in Oklahoma has been an issue for several years.

In May, for example, District Judge Ray Dean Linder sealed records of a felony perjury charge filed against an Enid attorney. Linder's reason: "Because I am the district judge. And it will remain sealed until I say it shouldn’t be sealed."

The Enid News & Eagle challenged that closure, and another judge overturned Linder. For its efforts, the newspaper received FOI Oklahoma's Marian Opala First Amendment Award on Saturday.

Last month, the Tulsa World reported that records in more than a dozen criminal cases had been ordered sealed in the past year in Tulsa County District Court.

Among those was a Tulsa judge's order sealing all records involving a material witness to a quadruple slaying. The witness was secretly jailed for more than a month. Records related to her case weren't unsealed until the Tulsa World began asking questions about the woman's incarceration.

In 2011, a Tulsa oilman's divorce case in Osage County was opened after the editor of The Bigheart Times questioned why the entire case, including the names of the couple, lawyers and judge, had been sealed. Even the order sealing the case had been closed to the public.

In 2010, an Oklahoma County district judge sealed the transcript of an open court hearing in which she had a heated argument with prosecutors. The transcript was unsealed after FOX 25 questioned why it has been closed to the public.

In 2008, the Tulsa World reported that the state's district judges had sealed thousands of court cases and documents — mostly because attorneys had simply asked them to — since 2003.

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.

FOI Oklahoma's Black Hole Award goes to Gov. Fallin

noreply@blogger.com (FOI OKLAHOMA Inc.) — Sun, 10 Mar 2013 19:19:00 +0000

Gov. Mary Fallin's unprecedented use of "executive privilege" to hide records from the public earned her FOI Oklahoma's annual Black Hole Award, the organization announced Saturday.

Two newspapers and a state lawmaker received FOI Oklahoma's top open government and First Amendment awards Saturday during the organization's Sunshine Week Conference at the University of Oklahoma.

FOI Oklahoma also announced winners of its third open government-themed essay contest for college students. First place went to Joey Stipek of the University of Oklahoma. The second- and third-place winners were Oklahoma State University students Colton Scott and Andrei Dambuleff. The students won cash prizes of $300, $200 and $100.

The Marian Opala First Amendment Award was presented to the Enid News & Eagle, while the Ben Blackstock Award went to the Bartlesville Examiner-Enterprise.

State Rep. Jason Nelson, R-Oklahoma City, was presented the Sunshine Award for opening the doors of secrecy at the Department of Human Services.

In contrast, Fallin and her general counsel, Steve Mullins, garnered the Black Hole Award, which recognizes someone who thwarts the free flow of information in Oklahoma.

Fallin and Mullins have claimed that her communications with her 14 Cabinet members are protected by executive and deliberative process privileges under the state Constitution. Their claims are unprecedented for an Oklahoma governor.

Our state courts have not recognized these privileges. Likewise, the state Open Records Act doesn’t screen the governor’s records from public scrutiny.

Some of the records could shed light on why Fallin refused to create a state health insurance exchange. Others are related to implementing reforms to the corrections system.

The Enid News & Eagle was recognized for its successful lawsuit supporting the public's First Amendment right of access to court records sealed by Judge Ray Linder. The records involved the perjury case of Enid attorney Eric Edwards.

For nearly four months, the newspaper, its attorney Michael Minnis, and reporters James Neal and Cass Rains fought with Edwards' attorney, Stephen Jones, over the manner in which the records were sealed and removed from public view.

In ordering the records opened, Judge Richard Van Dyck cited the News & Eagle’s First Amendment right to publish the news as the newspaper found it.

Van Dyck said the public’s interest in knowing the truth was greater than the need to keep the records sealed, which would only "heighten suspicions."

"The public needs to know what its elected officials are up to," Van Dyck said. "The public has a right to know."

The Opala Award is named for the late Marian P. Opala, the former Polish freedom fighter who served 32 years on the Oklahoma Supreme Court.

The Bartlesville Examiner-Enterprise was presented the Blackstock Award, which recognizes a non-governmental person or organization that has fought for the public's right to know.

Video footage of an incident in which two local police officers were accused of assaulting a hospital patient was released because of a lawsuit by the newspaper.

Two police officers were charged with assault and battery from the September 2011 incident involving a combative patient at a local hospital. One officer was convicted and fined $1,000. The other was acquitted.

A third officer's employment was terminated, and a fourth officer was placed on administrative leave but later reinstated.

Nelson was presented the Sunshine Award, which goes to a public official or governmental body, for spearheading efforts to reform the Department of Human Services' tracking and reporting of child deaths and near-deaths.

Over time, DHS had developed a closed system and oversight was difficult. Nelson pounded away at unacceptable reports and transparency issues concerning DHS. He and other legislators had to stand firm when federal Health and Human Services officials said Oklahoma could lose millions in federal funding if it opened certain records.

Nelson kept asking why other states could disclose the information and still receive federal funding. Eventually, the HHS agreed Oklahoma could release the data without losing funding.

This was the sixth year that FOI has presented the Sunshine, Blackstock and Black Hole awards.

FOI Oklahoma is a statewide organization that for 23 years has promoted openness in government and First Amendment education. The organization counts among its members journalists, librarians, educators, government officials and private citizens. It also sponsors an annual First Amendment Congress for students.

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

Lindel Hutson
Past President, FOI Oklahoma

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.

Oklahoma Sunshine ’13: Fighting for an Open Government

noreply@blogger.com (FOI OKLAHOMA Inc.) — Tue, 26 Feb 2013 05:23:00 +0000

As Gov. Mary Fallin claims privileges for secrecy, two states provide opposing models for public access to a governor's emails and other correspondence.

In Louisiana, the Jindal administration's broad interpretation of "deliberative process" has spread outside his office to be used as a justification for withholding records on controversial and politically sensitive topics. In contrast, Florida's governor created an online system that releases email by him and his top staff members.

At FOI Oklahoma's Sunshine Week Conference on March 9, experts from Louisiana and Florida will discuss how these differing approaches to transparency affect what the public knows about the formulation of state policies.

Also on the program:

Oklahomans have limited options when officials wrongly deny access to a record or meeting. But other states in 2012 gave the public someone to go to for help.

Maine's first public access ombudsman and the chairman of Iowa's new Public Information Board will explain their roles in making government accessible and give advice on creating an appeals process in Oklahoma that doesn't require going to court.

The conference will be at OU's Gaylord College of Journalism and Mass Communication, 395 W. Lindsey St., Norman.

March 6 is the advance deadline for registration.

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

State Senate committee recommends school board members take open government training

noreply@blogger.com (FOI OKLAHOMA Inc.) — Mon, 25 Feb 2013 17:16:00 +0000

New school board members would have to undergo at least one hour of training in the state's Open Records and Meeting laws, under a bill recommended Monday by the Senate Education Committee.

Senate Bill 91, by Sen. Eddie Fields, R-Wynona, would amend current training requirements for school board members that must be completed within 15 months of being elected or appointed.

Otherwise, the school board member must vacate the seat and cannot be reappointed or re-elected for three to five years, depending upon how many members serve on the school board. (Okla. Stat. tit. 70, 5-110(C))

That's an important difference from the open government training requirement for newly elected municipal officials. That statute requires the training to be completed in their first year of office or they "shall cease to hold the office." However, it doesn't explicitly prohibit them from being reappointed once the training is completed. (OKLA. STAT. tit. 11, § 8-114(E))

In December, Kiowa trustees reinstated a former trustee who had been forced to resign because he hadn't taken the training.

SB 91 was approved unanimously by Sens. Josh Brecheen, Earl Garrison, Jim Halligan, David Holt, Ron Sharp, Wayne Shaw, Gary Stanislawski and John Ford.

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.

Guthrie councilman signs Open Government Pledge

noreply@blogger.com (FOI OKLAHOMA Inc.) — Sat, 23 Feb 2013 00:01:00 +0000

Guthrie Councilman John Wood has pledged to support the letter and spirit of Oklahoma's open government laws if re-elected April 2.

By signing FOI Oklahoma's Open Government Pledge, Wood also promised 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."

Wood, a political science professor at Rose State College, has represented Ward 1 since 2009. He earned three academic degrees from OSU: a bachelor's in journalism, master's in political science, and doctorate in environmental policy and conflict.

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.

Signers are listed on the FOI Oklahoma website.

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

Norman mayor renews supports for open government

noreply@blogger.com (FOI OKLAHOMA Inc.) — Fri, 22 Feb 2013 23:37:00 +0000

Norman Mayor Cindy Rosenthal has re-signed FOI Oklahoma's Open Government Pledge as she seeks re-election on April 2.

As she did in 2010, Rosenthal promised to comply with the letter and spirit of Oklahoma's open government laws.

Rosenthal 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."

Rosenthal has served as mayor since 2007 after serving as a council member for the previous three years.

One of Rosenthal's two opponents, Thomas E. Sherman, signed the pledge in January.

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.

Signers are listed on the FOI Oklahoma website.

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

DA changes mind about requiring lawsuit to obtain records

noreply@blogger.com (FOI OKLAHOMA Inc.) — Fri, 22 Feb 2013 21:51:00 +0000

OSU's student newspaper won't have to sue Payne County District Attorney Tom Lee to get him to turn over the dates of employment of a former assistant.

Lee faxed the dates and other personnel information on Thursday afternoon to The Daily O'Collegian and to The Oklahoman, whose reporter had requested the dates earlier that day.

Lee, who also is district attorney for Logan County, had told The Daily O'Collegian on Wednesday that it would have to sue him if it wanted him to release the employment dates of former Assistant District Attorney Jill Tontz.

His refusal came despite the state Open Records Act explicitly requiring that employment dates for government employees be available to the public. (Okla. Stat. tit. 51, § 24A.7(B)(3))

Lee had said he preferred an Open Records Act lawsuit by the newspaper rather than a lawsuit by Tontz. He didn't explain the grounds on which Tontz could sue him. The Open Records Act says public officials can't be held civilly liable for damages when they release information in compliance with the statute. (Okla. Stat. tit. 51, § 24A.17(D))

Lee should never have denied access to the information, but at least he changed his mind without the need for a court order.

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.