FOI Oklahoma

Texas firm asks Oklahoma attorney general to encourage county clerks' compliance with Open Records Act as House committee considers bill allowing them to chose who gets electronic data

noreply@blogger.com (FOI OKLAHOMA Inc.) — Tue, 21 Feb 2012 00:37:00 +0000

A House bill allowing county clerks to refuse to provide electronic records would formalize an unconstitutional monopoly that already exists in part because district attorneys won't enforce the state Open Records Act, says the president of a Texas company that sells online access to county records.

Jason B. Smith said county clerks in Oklahoma either won't respond to his firm's requests for land records or tell him to purchase the information from KellPro, a Duncan, Okla., company that contracts with counties to provide online access to the data.

Smith's company is entitled under the Open Records Act to obtain records directly from the county clerks, but he says he can't get district attorneys to tell clerks to comply with the law.

Smith said the Grady County clerk's office refused to provide the records and told him to complain to state Attorney General Scott Pruitt.

Smith did just that last week, asking Pruitt for help "encouraging" the clerks to abide by the statute.

"The systematic denial of Open Records Requests and a lack of State enforcement has, at best inadvertently, created a de facto monopoly," Smith said in the letter.

He said the arrangement conflicts not only with the Open Records Act but also "with the spirit of the Oklahoma Constitution which provides that the 'Legislature shall pass no law granting to any association, corporation, or individual any exclusive rights, privileges, or immunities within this State.'" (See OKLA. CONST. art. 5, § 51)

Smith said Monday that Pruitt's office confirmed receiving the letter and is scheduled to meet next week with county clerks.

But in the meantime, a House committee is considering a bill that would legalize what the county clerks are doing.

The House Government Modernization Committee will likely vote on HB 2605 in the next two weeks.

As this blog noted last month, the bill by Rep. Gus Blackwell would allow county clerks to refuse to "provide any record by electronic means."

That covers a lot of important public records. County clerks keep the records of proceedings of the county commissions, county excise boards, county boards of equalizations and county boards overseeing tax roll corrections. They also keep records of the receipts and expenditures by county governments, including the payroll for all county employees and all claims for payment for goods and services.

And they keep land records such as plats, deeds, oil and gas leases, real estate liens, and other liens against property in the county.

Smith said Blackwell, a Republican representing the Oklahoma Panhandle, hasn't responded to his email and telephone call asking about the bill.

That's the same response Smith's company, TexasFile.com, got from a number of county clerks after requesting electronic copies of their real property image and index data on Aug. 30.

Smith said none of the clerks has provided the information. Some haven't responded at all -- not even by quoting a price for the database, he said.

"There is either a fundamental misunderstanding by the majority of Oklahoma County Clerks of their obligations under the Oklahoma Open Records Act or a coordinated effort by the governmental bodies to deny access to electronic information," Smith told Pruitt. "The County Clerks have expressed little interest in complying with the Law and less concern with any enforceability or retribution for the violations they may be committing.

"The Oklahoma Open Records Act has a noble and essential purpose that far extends the governance of the type of request we presented," said Smith. "However, allowing such blatant and broad disregard for the law undermines every aspect of the Oklahoma Open Records Act."

It sure does. And HB 2605 creates a troubling precedent of allowing local government officials to pick and choose who gets records in which format.

Access to records in an electronic format increases significantly the public's ability to make sense of government information. The format is as critical as the disclosure itself because the format can render the data very useful or practically useless.

Without access to computerized government records from county clerks, Oklahomans will lose a meaningful way to oversee a great deal of government activity.

For those of you interested in telling state legislators what you think of HB 2605, the House Government Modernization Committee is chaired by Rep. Jason Murphey, R-Guthrie. Vice chairman is Wes Hilliard, D-Sulphur.

The other members are Reps.

David Brumbaugh, R-Tulsa;
Josh Cockroft, R-Tecumseh;
David Derby, R-Owasso;
Mark McCullough, R-Supulpa;
Lewis H. Moore, R-Arcadia;
Richard Morrissette, D-Oklahoma City;
Seneca Scott, D-Tulsa;
Aaron Stiles, R-Norman;
Randy Terrill, R-Moore;
John Trebilcock, R-Broken Arrow; and
Purcy D. Walker, D-Elk City.

Murphey and Scott have signed FOI Oklahoma's Open Government Pledge in which they 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."

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.

Stillwater school district drops search fee, $250 deposit for copies of calendar committee's emails

noreply@blogger.com (FOI OKLAHOMA Inc.) — Mon, 20 Feb 2012 18:05:00 +0000

A Stillwater parent says the school district sent a CD of requested committee emails without mentioning a $250 deposit or search fee.

An attorney for the district had told Mitsi Andrews she would have to pay the deposit before the district would begin compiling the emails for her inspection.

Andrews wanted to read the emails, text messages and other correspondence in which members of a school district committee discussed a controversial school calendar. She asked to inspect the emails after being told by Superintendent Ann Caine that no minutes existed for the committee's meetings.

Caine had also refused to identify all the members of the committee. (Read related posting.)

The attorney had told Andrews all the collected documents would have to be reviewed by district personnel or his Tulsa law firm for exempted material.

"The District believes your ORA request would clearly cause excessive disruption of the District's essential functions," said Kent B. Rainey of Rosenstein, Fist & Ringold.

Therefore, he said, Andrews would be charged a "fee to recover the direct cost of the document search." (The district charges a search fee of $25 per hour, according to its open records policy.)

But the Open Records Act prohibits a search fee in these circumstances, stating:

In no case, shall a search fee be charged when the release of records is in the public interest, including, but not limited to, release to the news media, scholars, authors and taxpayers seeking to determine whether those entrusted with the affairs of the government are honestly, faithfully, and competently performing their duties as public servants. (OKLA. STAT. tit. 51, § 24A.5(3))

The district's open records policy echoes that language, saying, "Search fees shall not be charged for records sought in the public interest, including, but not limited to releases to the news media, scholars, authors, and taxpayers seeking to determine whether officials of the district are honestly, faithfully, and competently performing their duties as public servants."

Andrews' request certainly fits within this provision. She had requested records that could reveal the pros and cons discussed by a committee that did not meet publicly and that was told to keep quiet about the proposal it was developing.

Andrews said one of the emails she received had told district representatives on the committee that Caine didn't want them discussing it with anyone else.

"Mums the word until the calendar is proposed," Andrews said the email instructed.

But a more transparent process could have addressed parental objections as the policy was developed, not after it was announced, and allayed parent and student anxiety about radically changing the school calendar.

As it was, the school board voted to keep the traditional school calendar for 2012-13 because of parents' concerns and to consider the continuous learning academic calendar for the following year.

Caine told the Stillwater Journal last month that she planned to reconvene the committee to make a fresh start designing a calendar that takes into account the concerns revealed in a parent survey.

Perhaps the process will be more open this time around.

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.

Stillwater school superintendent acknowledges that committee members shouldn't expect to be anonymous

noreply@blogger.com (FOI OKLAHOMA Inc.) — Sat, 18 Feb 2012 18:01:00 +0000

Stillwater Superintendent Ann Caine recently told a local newspaper she can understand that someone serving on a school district committee should expect to have their participation become public.

Caine had refused in December to identify the members of a committee that shaped a controversial school year calendar.

And an attorney for the district told a parent requesting the names that only one document with the names of the committee members existed and it was only "a partial list of members."

Caine told the Stillwater Journal last month that the district couldn’t locate a document listing all the names.

However, the parent had independently obtained emails sent from a Stillwater public school official to the committee that revealed the identities of members omitted from the district's response.

The Journal article didn't address the $250 deposit that the parent was told she would have to pay before the district would begin compiling the emails, text messages and other correspondence in which committee members discussed the controversial calendar proposal.

The article also didn't discuss the search fee that the attorney said the parent would be charged in an apparent violation of the Open Records Act and of the district's own policy.

But Caine did provide an explanation of the school district's policy for responding to records requests. An explanation at odds with the district's written policy and with a state attorney general's understanding of the state Open Records Act.

The district's policy notes that records requests "will be accommodated ... as soon as it is determined the requested records are not exempt from inspection and copying."

"Such determination may require the consideration of the superintendent or the district's attorney," the policy states.

In contrast, Caine told the newspaper, "Once you file a Freedom of Information request, it goes to our attorney."

But all records requests should not go to an attorney, said then-Attorney General Drew Edmondson in 2005 and 2006.

In a 2005 records training video for police, Edmondson acknowledged that a designated records person could encounter "an unusual request" requiring the advice of an attorney.

But he warned, "That should be a rare exception."

A year later, Edmondson said an Oklahoma State University policy requiring all public records requests to be cleared by school attorneys could violate the Open Records Act by not providing "prompt and reasonable" access.

"If that policy were challenged, then a judge would have to determine whether the circumstances within that particular agency are not only prudent but necessary," Edmondson told The Oklahoman.

"I would say that it is not typical and typically would not be found to be reasonable," Edmondson said.

He told the newspaper that requests should be filled in minutes, not days.

That's tough to do if the request goes not only to an attorney but to one about an hour away.

The attorney who responded to the parent's request for committee member names was Kent B. Rainey of the Tulsa law firm Rosenstein, Fist & Ringold.

The Open Records Act requires that public bodies "designate certain employees who are authorized to release records . . . for inspection, copying, or mechanical reproduction. 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))

The letter and spirit of the statute -- as well as common sense -- seem to require that the person be on-hand at the government office to release records. That certainly was Edmondson's understanding.

"By and large, the person at the desk who is supposed to respond to open records requests should be able to do so without consultation with anybody else," Edmondson said in the police training video.

Providing another reason why the Stillwater school district should not be sending all open records requests to an attorney in Tulsa.

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 councilman appointed in 'emergency action' resigns; applicants sought for council seat

noreply@blogger.com (FOI OKLAHOMA Inc.) — Fri, 17 Feb 2012 21:12:00 +0000

An Okemah councilman stepped down this week from the seat to which he had been appointed in an "emergency action" last month, the local newspaper reported.

Ken Lee had not taken the oath of office since his appointment by the City Council in late January, the Okemah News Leader said.

The newspaper and this blog criticized the appointment as a violation of the Open Meeting Act because such an action wasn't on the agenda.

City Attorney Bruce Coker had told the councilmen that they could declare an "emergency" based on the possibility of not having a quorum to conduct business at their next meeting if one was absent, the newspaper reported.

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

The only exception is for "new business." The council agenda didn't have an item allowing for "new business" to be discussed. And even if it had, the appointment didn't meet the statutory definition of "new business." (OKLA. STAT. tit. 25, § 311(A)(9))

The council could have called an "emergency meeting" once it adjourned the regular meeting. But the appointment wasn't an emergency, which the Open Meeting Act defines as:

A situation involving injury to persons or injury and damage to public or personal property or immediate financial loss when the time requirements for public notice of a special meeting would make such procedure impractical and increase the likelihood of injury or damage or immediate financial loss. (OKLA. STAT. tit. 25, § 304(5))

The council should have called a special meeting for 48 hours later if it wanted to appoint Lee.

On Monday night, council members voted to accept Lee's resignation. An agenda item gave them the opportunity to simply reappoint him. Instead, they chose to declare a vacancy and call for applications.

The council will interview applicants during its regular meeting on Feb. 27.

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.

Oklahoma Sunshine 2012: Forging a Commitment to Open Government

noreply@blogger.com (FOI OKLAHOMA Inc.) — Tue, 14 Feb 2012 22:00:00 +0000

Kick off Sunshine Week with FOI Oklahoma’s 2012 Sunshine Conference. This year's theme is "Forging a Commitment to Open Government."

Program highlights include:

House Speaker Kris Steele and fellow lawmakers explain bills requiring the state Legislature to comply with our open government laws.
State Auditor Gary Jones discusses ways to improve enforcement of those laws.
The Student Press Law Center’s attorney and a state expert on education law explain the application of FERPA, HIPAA and other federal statutes to the records of Oklahoma’s school districts, colleges and universities.
State experts explain our Open Records and Open Meeting laws.
Marian Opala First Amendment Award and FOI Award recipients recognized.

The conference is 9 a.m. – 3:30 p.m., March 10, at The Oklahoman Tower, 9000 N. Broadway, OKC. (Use the East Britton Road gate.)

Registration for walk-ins will begin at 8:30 a.m.

Early registration must be received by March 7. Additional $5 for registrations received after March 7.

Registration Form

Registration includes lunch.

FOI Oklahoma Inc. Members: $15
FOI Oklahoma Student Members: FREE (If registration is received by March 7. Otherwise, pay $10 at door.)
Non-Members: $30
Non-Member Students: $15 (Includes one-year membership in FOI Oklahoma Inc.)

Make check or money order payable to FOI Oklahoma.

Mail payment to:

Oklahoma Sunshine '12
Oklahoma Library Association
300 Hardy Drive, Edmond, OK 73013
405–525–5100 • Fax: 405–525–5103
Kay Boies: kboies@sbcglobal.net

Purchase Orders, and Visa and MasterCard payments can also be accepted. Please contact Kay Boies at the Oklahoma Library Association.

Bartlesville newspaper sues city for videotape in which two police officers allegedly assaulted a handcuffed hospital patient

noreply@blogger.com (FOI OKLAHOMA Inc.) — Fri, 03 Feb 2012 23:22:00 +0000

The Bartlesville Examiner-Enterprise today filed an Open Records Act lawsuit against the city and district attorney, seeking a copy of hospital surveillance video that reportedly led to the arrest of two police officers in December.

The two officers were charged with assault and battery on Dec. 1 and fired last month, the newspaper reported.

They are accused of striking and choking a handcuffed patient when they responded with other officers to the Jane Phillips Medical Center to help with a combative patient in September.

The video reportedly shows at least a portion of the incident, the newspaper said.

Bartlesville police officials obtained the video through a search warrant. The newspaper also said District Attorney Kevin Buchanan showed portions of the video to members of the Fraternal Order of Police Lodge 117, many of whom were not involved with either the incident or the investigation into the conduct of the officers.

City officials twice denied the newspaper's requests for the video, saying it would take a court order to get a copy.

Public access to police videos has become an issue in the state, most recently in December when Owasso officials provided the police officer lapel camera video and audio materials sought by the family of a Tulsa man who had died in the Tulsa County jail. But the family had to file an Open Records Act lawsuit before city officials would release the material.

It also took an Open Records Act lawsuit for Catoosa officials to agree in June that police audio and video recordings were public under the Open Records Act.

But in August, a Rogers County judge ruled that police dash-cam video was not a public record. Requesters could ask a court to find that the release of a particular recording would serve a public interest that outweighed the reason for denial, the judge said.

In the Bartlesville lawsuit, the newspaper argues the "public’s interest substantially outweighs any conceivable reason the defendants may have to deny access," explaining,

The public maintains a compelling interest in records of public bodies that disclose whether the public body and its employees are ‘honestly, faithfully and competently performing their duties’ and unless the records are confidential by law, the records must be made available to the citizens.

The newspaper also contends that "since the videotape contains facts concerning the arrest of public servants, the videotape must be produced."

That argument seems supported by a 2004 state Supreme Court ruling that DPS recordings of administrative hearings concerning revocation of drivers' licenses were public under the Open Records Act. (Fabian & Assoc., P.C., v. State ex. rel. Dept. of Public Safety, 2004 OK 67)

The Supreme Court held that the requested tapes contained facts concerning arrests and therefore were open under the Open Records Act. (Id. ¶ 14)

The statute makes public the "facts concerning the arrest, including the cause of arrest and the name of the arresting officer." (OKLA. STAT. tit. 51, § 24A.8(2))

"By this statute," the Supreme Court said, "DPS is required to make available for public inspection facts concerning the arrest. [The plaintiff] asserts that the requested tapes contain the facts concerning the arrest and therefore § 24A.8(A)(2) requires the tapes to be open for public inspection. We agree."

In contrast, the Rogers County judge said the Supreme Court case dealt "with what amounts to a transcript of a public hearing" while the dash-cam recording was a "direct piece of evidence."

In other words, the Supreme Court had interpreted the Open Records Act as requiring certain information in the hands of law enforcement to be made public. The Rogers County judge, however, read the statute as listing documents that must be public and dash-cam recordings are not specified. (See OKLA. STAT. tit. 51, § 24A.8(1-8))

In Bartlesville, the newspaper also argues that city officials don't have a legitimate reason for withholding the video, in part because any claim of confidentiality was waived when the video was shown to third parties.

The newspaper is being represented by James Elias of Brewer, Worten, Robinett law firm.

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 city attorney tells council that appointing new member is emergency and can be done even though agenda doesn't list such an action

noreply@blogger.com (FOI OKLAHOMA Inc.) — Fri, 27 Jan 2012 17:07:00 +0000

The Okemah City Council appointed a new member Monday night even though such an action wasn't on the agenda, the Okemah News Leader reported.

Council members took that action after City Attorney Bruce Coker said they could declare an "emergency" based on the possibility of not having a quorum to conduct business at their next meeting if one was absent, the newspaper reported.

The five-member council was already down to four before the mayor resigned last week.

Monday night's agenda listed the "discussion and possible action to begin search and application process to appoint a new council member for Ward #2 to fill the vacancy created by the resignation" of the mayor.

The city had 60 days to fill the vacancy, the newspaper reported.

Ron Gott, who was elected mayor by his two colleagues at the start of the meeting, raised a concern that if one councilman were sick, the council would be without a quorum at a meeting and therefore unable to conduct business, the newspaper reported.

So instead of following the agenda, the council appointed Ken Lee, a resident of Ward 2, to fill the seat. Gott and Vice Mayor Lloyd Raimer voted for the appointment; Councilman Bobby Coplin opposed it.

The vote should not have occurred Monday night.

A public body cannot take an action unless it's on the agenda or meets the definition of "new business" -- assuming that the agenda includes "new business" as an item.

The Okemah City Council agenda didn't include "new business."

Even if it had, appointing a new councilman in this situation didn't meet the Open Meeting Act's definition of "new business."

The Okemah News Leader reported that City Manager Jerry Turner questioned whether the council could fill the vacancy because the agenda did not list the possibility of appointing a councilman.

According to the newspaper, Coker said the emergency clause usually applies to emergency meetings but could "overlap" in this area.

No, it couldn't. The Open Meeting Act requires that each agenda "identify all items of business to be transacted" by the public body at the meeting. (OKLA. STAT. tit. 25, § 311(B)(1))

The only exception is for "new business."

But the council could have called an "emergency meeting" once it adjourned the regular meeting.

The Open Meeting Act allows public bodies to call emergency meetings because of

a situation involving injury to persons or injury and damage to public or personal property or immediate financial loss when the time requirements for public notice of a special meeting would make such procedure impractical and increase the likelihood of injury or damage or immediate financial loss. (OKLA. STAT. tit. 25, § 304(5))

Therein lies another serious problem for the council.

There was no emergency that necessitated the council appointing a new member at that moment. The council should have called a special meeting for 48 hours later.

How would delaying the vote for 48 hours have increased "the likelihood of injury or damage or immediate financial loss"?

The council's next regular meeting isn't until Feb. 13.

The council should take note of a 2009 decision in which the Court of Civil Appeals said that acting on the advice of an attorney does 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)

"Any construction of the OMA which would permit a public body's consideration of 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," the court said. (Id. ¶ 17)

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. ¶ 18)

"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. (Id.)

"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.)

How is the situation in Okemah any different?

Joey Senat, Ph.D.
Associate Professor
Oklahoma State University

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.

Not all DHS commission committee meetings to be open to public

noreply@blogger.com (FOI OKLAHOMA Inc.) — Thu, 26 Jan 2012 19:53:00 +0000

The Budget and Rules committees of the statewide commission overseeing the state Department of Human Services will meet publicly and comply with Open Meeting Act requirements, the Tulsa World reported Monday.

"We are a public agency serving more of the public than any other agency and need to be as open as possible. It's all about the public, not about us," said Brad Yarbrough, chairman of the Oklahoma Commission for Human Services.

That's a big step forward for a public body that wasn't too keen on open government until Yarbrough was appointed chairman by Gov. Mary Fallin in the fall.

But the story indicates that public notices and agendas won't be posted for two of the commission's six standing committees.

Yarbrough told the Tulsa World that the Special Review Committee and the Evaluation and Compensation Review Committee will be closed because of separate statutory exemptions for confidential child- and adult-welfare information and for considering pending personnel actions.

Why shouldn't public notice and agendas be posted for those committees as well?

This is especially true for the Evaluation and Compensation Review Committee, which seems to act as the commission's personnel committee.

Under the Open Meeting Act, a public body may meet in executive session to discuss "the employment, hiring, appointment, promotion, demotion, disciplining or resignation of any individual salaried public officer or employee." (OKLA. STAT. tit. 25, § 307(B)(1))

But such closed-door discussions may occur only if the executive session is listed with sufficient information on the publicly posted agenda and only after the officials vote in open session to go into executive session. (OKLA. STAT. tit. 25, § 311(B)(2)(a-c))

And an AG opinion requires that the names or unique titles of those employees be listed on the meeting agenda. (1997 OK AG 61, ¶ 5)

On Tuesday, I sent emails to DHS spokeswoman Sheree Powell and Diane Clay of the state Attorney General's Office asking whether another state statute requires the evaluation committee to meet without posting public notice and an agenda.

They haven't responded.

Yarbrough had told the Tulsa World his first action as chairman was to contact Attorney General Scott Pruitt's office for help.

"I asked for help in determining what might be the best process for building and posting the agenda," he said. "They are now reviewing those before they are posted to ensure we are complying with the Oklahoma Open Meeting Act.

"Because the commission was being looked at by the district attorney of Oklahoma County for alleged violations of the Open Meeting Act, I felt it was very important to work with officials outside the agency to make sure we are doing things by the law."

That's commendable.

But more openness is called for.

In lieu of a state statute requiring complete secrecy, all the commission's committees should meet publicly and follow the Open Meeting Act requirements for entering into executive sessions.

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.

Plaintiffs appeal Washington County judge's decision that Oklahomans aren't entitled to sue to enforce Open Meeting Act unless specifically harmed by alleged violation

noreply@blogger.com (FOI OKLAHOMA Inc.) — Tue, 24 Jan 2012 21:46:00 +0000

Oklahoma's Supreme Court is being asked to decide if residents may sue to enforce the state Open Meeting Act without having been specifically harmed by the public body's alleged violation.

Joel Rabin and Sharon Hurst are appealing a Washington County judge's dismissal of their lawsuit alleging an Open Meeting Act violation by the Bartlesville Redevelopment Authority.

In November, Associate District Judge Russell Vaclaw said Rabin and Hurst made no claims that "their personal, contractual, or proprietary interests were affected by any decision by the BRTA in an executive session. Nor is there any specific claim of any specific class that they claim to represent."

Vaclaw reiterated that ruling in another decision on Jan. 3.

Vaclaw ruled that plaintiffs suing under the Open Meeting Act must demonstrate they "were directly harmed by the wrongful actions of a government in violation of the OMA."

The statute "does not appear to allow for an avenue for a complaining party to simply complain that the government violated the OMA without showing any other harm to the individual," he said.

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," Vaclaw said. "If there was wrongdoing, charges could be filed or the matter may be presented to a grand jury."

Rabin and Hurst alleged that the BRTA purposefully misled the public about the purpose of its Aug. 11, 2010, executive session.

The agenda for the meeting said the closed-door session would be to "Discuss Pending and/or Impending Investigations, Claims or Actions Affecting the BRTA." However, the agenda did not identify the specific item of business to be discussed in the executive session.

And in an e-mail sent a day earlier, BRTA Downtown Development Director Patrick Treadway told the seven members of the authority:

You will note that the first item on the agenda is an Executive Session which seems to indicate an investigation. There is not an investigation. This is on the agenda to allow Dan to give you information which he believes you need to have for future projects. Dan purposefully provided the language for this agenda item.

Dan is BRTA attorney Dan McMahan of Oklahoma City.

The lawsuit also uncovered that despite an Open Meeting Act requirement, the BRTA did not keep minutes of its executive sessions.

Vaclaw did not rule on whether the BRTA violated the Open Meeting Act. Instead, he decided that Hurst and Rabin had no right to sue.

Vaclaw relied upon the state Supreme Court's three-part test in Holbert v. Echeverria, 1987 OK 99, ¶ 8, for determining if a private cause of action can be inferred from a regulatory statute:

The plaintiff is one of the class for whose special benefit the statute was enacted;
There is some legislative intent, explicit or implicit, suggesting that the legislature wanted to create a private remedy; and
Implying a remedy would be consistent with the underlying purposes of the legislative scheme.

Applying the test, the court in Holbert said private individuals had no right to sue for a violation of the state's Consumer Protection Act. The home buyers were not part of a class of persons for whose "especial benefit" the statute was enacted, the court said.

It explained that adopting "a broad construction for establishing a class would render the first factor ... virtually meaningless. When a statute is created for the benefit of the public at large, no special class is created in its wake simply because a remedy for injured persons is fashioned." (Id. ¶ 9) The court reasoned:

It is difficult to think of a term broader or more general than "consumer." Every individual, regardless of one's occupation, does in some respect occupy on a daily basis the status of consumer. Because everybody stands included, the term "consumer" does not describe any special class, but rather the public at large. Inasmuch as the Act is for the benefit of the general public, no special class is established for whose especial benefit it was created. (Id. ¶ 10)

Vaclaw noted that after the Holbert ruling, state legislators amended the Oklahoma Consumer Protection Act "to expressly provide for a private right of action."

Attorneys for Rabin and Hurst had pointed to a string of Oklahoma appellate court decisions involving plaintiffs suing public bodies over alleged Open Meeting Act violations.

But Vaclaw said that in all those cases, the plaintiffs "had some specific statutory, contractual or proprietary interest which allowed them to seek specific relief in those particular situations."

He agreed that the Open Meeting Act "exists for the benefit of the general public."

"But that does not grant a right to every individual citizen to sue the government body in civil court every time they believe the government violated the OMA," he said.

"If the legislature intended to allow for a private remedy, then it is their responsibility to change the law, not this Court," he said.

Yes, the Legislature could resolve the issue this session by explicitly stating that Oklahomans have a private right to sue to enforce the Open Meeting Act.

I receive a steady stream of complaints about Open Meeting Act violations -- a number of which have been publicized on this blog. Unfortunately, police and district attorneys have shown little interest in pursuing complaints of government officials breaking this law.

But our legislators have the power to remedy this problem. Please clearly give your constituents another tool to enforce a law intended "to encourage and facilitate an informed citizenry’s understanding of the governmental processes and governmental problems."

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.

Cash prizes to be awarded in FOI essay contest for Oklahoma college students

noreply@blogger.com (FOI OKLAHOMA Inc.) — Mon, 23 Jan 2012 21:01:00 +0000

Oklahoma college students are invited to enter FOI Oklahoma’s second annual freedom of information essay contest.

Any college student may enter by writing an essay of about 500 words on one of the following topics:

How have you used Oklahoma’s Open Meeting and Open Records laws to encourage and facilitate an informed citizenry’s participation in government?

How do violations of Oklahoma’s Open Meeting and Open Records laws by public universities and colleges diminish public confidence in higher education?

Are Oklahoma’s Open Meeting and Open Records laws adequately enforced to protect the public’s need to know?

Students should research the topic as well as write creatively and personally.

Entries must be typed and double-spaced.

Essay winners will be recognized and receive their prizes during FOI Oklahoma’s fifth annual Sunshine Week Conference on March 10 in Oklahoma City.

Winning essays will be distributed at the conference and published on FOI Oklahoma’s website.

Entries must be received by 5 p.m., Feb. 22.

E-mail entries as attachments to Joey Senat, OSU School of Media & Strategic Communications, at joey.senat@okstate.edu.

Each entry must include at the top (single-spaced) the STUDENT’S:

Name
School
Mailing address
Phone number
Email address

If you have questions about the contest, please contact Joey Senat at (405) 744-8277 or joey.senat@okstate.edu.

No more electronic records from county clerks if state legislator, some clerks have their way

noreply@blogger.com (FOI OKLAHOMA Inc.) — Mon, 23 Jan 2012 18:02:00 +0000

Oklahoma's county clerks would no longer have to provide electronic records in that format, under a House bill filed Thursday.

House Bill 2605 is from Rep. Gus Blackwell, a Republican representing the Oklahoma Panhandle.

The bill amends a 1989 statute applying to county clerks by adding, "Nothing in this section shall require the clerk to provide any record by electronic means."

That covers a lot of important public records. County clerks keep the records of proceedings of the county commissions, county excise boards, county boards of equalizations and county boards overseeing tax roll corrections.

County clerks also keep records of the receipts and expenditures by county governments, including the payroll for all county employees and all claims for payment for goods and services.

And they keep land records such as plats, deeds, oil and gas leases, real estate liens, and other liens against property in the county.

I'm told that county clerks are mad at oil companies and at private companies that buy large amounts of land records to sell on websites. That threatens the clerks' "copy money" they use to run their offices.

But public records aren't supposed to be money-makers for government agencies.

Twenty years ago, the Oklahoma Supreme Court said that for computer tapes, the "reasonable, direct costs" for copying should be "based upon the cost of materials [and] labor needed for providing the computer program and service to produce the requested data." (Merrill v. Oklahoma Tax Comm’n, 1992 OK 53, ¶13)

And since 2000, a $5 fee has been added to each land instrument recorded with each county clerk solely to "increase the net funding level available to the county clerk to maintain and preserve public records." (OKLA. STAT. tit. 28, § 32(D))

The "County Clerk's Records Management and Preservation Fund" is "for the purpose of preserving, maintaining, and archiving recorded instruments including, but not limited to, records management, records preservation, automation, modernization, and related lawful expenditures." (OKLA. STAT. tit. 28, § 32(C))

For those of you just joining the 21st century, let me explain that access to records in an electronic format increases significantly the public’s ability to make sense of government information. The format is as critical as the disclosure itself because the format can render the data very useful or practically useless.

Without access to computerized government records from county clerks, Oklahomans will lose a meaningful way to oversee a great deal of government activity.

House Bill 2605 is a bad idea that should be buried.

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.

Senate bills would require more openness by state Legislature

noreply@blogger.com (FOI OKLAHOMA Inc.) — Thu, 19 Jan 2012 00:53:00 +0000

A Republican state senator says the Legislature should comply with the same open government laws that other state agencies and local governments must follow.

"I spent five years serving in the Oklahoma City government, where we were subject to the Open Meetings and Open Records Acts," said Sen. David Holt of Oklahoma City. "I believe it is time the Legislature embraced these acts."

Holt has introduced Senate bills 1243 and 1244, which remove the Legislature's self-imposed exemptions from the Open Meeting and Open Records acts respectively.

Not bad for a guy about to start only his second legislative session.

Meanwhile, Rep. Jason Murphey is drafting a bill that would create a separate open records and meeting statute for the Legislature. In November, Murphey oversaw a House interim study on the application of open records and meetings laws to legislative proceedings.

The Guthrie Republican requested the study after his bill requiring the Legislature to abide by the Open Meeting and Open Records laws died in a House committee during the last legislative session.

The new legislative session begins Feb. 6.

Holt's 1243 would require the full Senate and House and their standing committees to comply with the Open Meeting Act but only during regular and special sessions.

During the legislative interim, the committees would conduct open meetings in accordance with rules adopted by each house.

But why not conduct such meetings under the Open Meeting Act regardless of whether the Legislature is in session?

Ironically, Holt was one of seven members of the Senate’s eight-member delegation to the Joint Legislative Water Committee who met secretly in December to see if they could agree on legislation to allow the sale of water to out-of-state interests, The Journal Record reported Tuesday.

Under SB 1243, political caucuses could remain closed, but public notice of the meetings would be required at least 12 hours in advance. Legislators couldn't vote on pending legislation during a caucus unless the meeting was open to the public.

Holt's 1244 would add the Legislature to the Open Records Act. Under current law, only the Legislature's financial records are public. (OKLA. STAT. tit. 51, § 24A.4)

SB 1244 would specifically require records relating to legislation filed for consideration in a particular session to be open beginning on July 1 following a regular session and beginning 21 days following a special session.

But access to those records would benefit the public more during the session when the legislation at issue is being considered.

Under the bill, the names of registered lobbyists and of public officers acting in their official capacity would be available in the records. But legislative officials could redact the names of other people, including those of public employees acting pursuant to the Whistleblower Act.

The bill would make public only those records related to legislation filed for the 2013 regular session and afterward.

Holt told the Tulsa World that he thinks the Legislature should be ashamed if it made itself subject to the Open Records and Open Meeting laws, only to begin carving out exemptions that could water down the statutes for all public bodies.

"I think Republicans ran on the kind of principles that are enshrined in the Open Meeting and Open Records acts," he said.

"It is just hard for me to imagine a Republican elected official standing up and saying in public he can't support this type of transparency, but we shall see and the process will play out."

While I believe Holt's bills could be a bit stronger, they still represent another opportunity for our state legislators to live up to the same principles of openness and transparency rightfully expected of other public servants.

I commend him for challenging the status quo at the state Capitol.

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.

Newspaper editorial's right on message but wrong on law

noreply@blogger.com (FOI OKLAHOMA Inc.) — Tue, 17 Jan 2012 18:29:00 +0000

I sincerely appreciate the basic message of The Oklahoman's editorial on Monday that police departments must follow the state Open Records Act.

The editorial, however, indicates that release of incident reports is subject to judicial review under the Open Records Act.

It is not.

The Open Records Act requires law enforcement agencies to make incident reports and other specified information available for public inspection. (Okla. Stat. tit. 51, § 24A.8(A)(1-8))

Police departments are given no leeway regarding these records.

Law enforcement agencies may deny access to other records "except where a court finds that the public interest or the interest of an individual outweighs the reason for denial." (Okla. Stat. tit. 51, § 24A.8(B))

Contrary to the editorial, that is not a step that police have skipped. The burden is on the person seeking the records to ask a court to rule in favor of access.

The problem in Edmond and elsewhere involved police departments claiming that incident reports are part of investigatory files that may be withheld from the public at the discretion of the law enforcement agencies.

Incident reports are not part of such investigatory files.

As Attorney General Scott Pruitt recently agreed, the Open Records Act clearly distinguishes between incident report information that must be made available for inspection when requested and investigatory files that may be closed to the public

The Open Records Act states, "Access to records which, under the Oklahoma Open Records Act, would otherwise be available for public inspection and copying, shall not be denied because a public body or public official is using or has taken possession of such records for investigatory purposes or has placed the records in a litigation or investigation file." (Okla. Stat. tit. 51, § 24A.20)

As Pruitt agreed, incident reports must be made available to the public when requested.

The Open Records Act does not empower law enforcement agencies to ask a court to block public access to incident reports.

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.

Employee records of EMSA ambulance drivers should be subject to the state's Open Records Act

noreply@blogger.com (FOI OKLAHOMA Inc.) — Mon, 16 Jan 2012 22:22:00 +0000

The Tulsa World requested from EMSA the full names, dates of birth, job applications, disciplinary actions and other identifying information on paramedics and EMTs following a fatal accident involving an EMSA ambulance in Oklahoma City on Dec. 10.

EMSA provided first and last names, hire dates and medical license numbers for 518 employees of Paramedics Plus -- a private contractor used by EMSA to hire the paramedics and EMTs, perform background checks and maintain the employee records.

But Parmedics Plus refused to provide other employee information, saying such records are private and not subject to the Open Records Act.

However, that information should be subject to the state Open Records Act under a series of attorney general opinions applying our open government laws to private nonprofit and for-profit corporations.

Here's why:

The Emergency Medical Services Authority is a public trust authority of the Tulsa and Oklahoma City governments. It manages ambulance services for more than 1 million people in the two cities and surrounding areas.

EMSA says nearly three-quarters of its operating budget comes from patient billing revenues.

But cities provide the rest either directly through general fund allocations or indirectly through a fee placed on residents' utility bills. For example, the agency receives about $4.8 million a year from a monthly utility-bill fee paid by Tulsans, the Tulsa World reported.

EMSA owns the 89 ambulances, which cost up to $150,000 each.

The public agency knows the names of employees who drive its ambulances but doesn't possess the job applications or records of disciplinary actions, an EMSA attorney told the Tulsa World.

Those records are in the hands of Paramedics Plus, a wholly-owned subsidiary of East Texas Medical Center (ETMC), based in Tyler, Texas. (ETMC is a not-for-profit organization that operates the nation's second-largest rural EMS system with a service area spanning more than 17,000 square miles, according to the EMSA website.)

EMSA's Board of Trustees apparently didn't include in its contract with Paramedics Plus a provision treating the employee information as open records to the same extent as those of government employees.

Even so, a series of attorney general opinions indicates that those employee records are subject to the personnel provisions of the Oklahoma Open Records Act.

A 1981 opinion said the statute applies to private nonprofit corporations that "have entered into contractual arrangements with municipalities to operate or maintain public property for and on behalf of such municipalities...." (1981 OK AG 184, ¶ 7)

Such corporations "have been entrusted with the affairs of government," the opinion said. "Especially is this so where the contract vests discretion in the nonprofit corporation to possess and operate public property for a joint purpose of the municipality and the nonprofit corporation." (Id.)

This ruling applied to the records "pertaining to the operation or maintenance of public property," the opinion said. (Id. ¶ 10) (emphasis added)

"To find otherwise would permit public officials to abdicate to private parties their duties with respect to keeping records concerning such matters and would place such records beyond the reach of interested members of the public desiring to become informed upon matters pertaining to the operation and maintenance of public property," the opinion said. (Id.) (emphasis added)

It concluded:

Where a municipality has contracted with a nonprofit corporation to operate public property, records pertaining to the operation, maintenance or improvement of such property or the administration or performance of the contract are public records open for public inspection, even though such records may be kept and maintained in the custody of the nonprofit corporation.

Subsequent attorney general opinions have said for-profit and nonprofit corporations can also be subject to the Open Meeting Act.

A 2002 opinion explained:

Although private for-profit and non-profit organizations are not mentioned in the [Open Meeting Act] definition of public body, that does not necessarily prevent the Act from applying to private organizations. There are at least two situations in which a private organization will be subject to the Act: (1) if the private organization is a "subordinate entity" which exercises actual or de facto decision-making authority on behalf of a governmental body; or (2) if the private organization is "supported in whole or in part by public funds or entrusted with the expending of public funds, or administering public property." (2002 OK AG 37, ¶ 2) (emphasis added)

While those opinions focused on whether the corporations were "supported in whole or in party by public funds," that is only one of three qualifiers found in both statutes.

To be a public body under the Open Meeting Act, the entity "must have one of three characteristics:

it must be supported in whole or in part by public funds;
it must be entrusted with the expending of public funds; or
it must administer public property.”

(2002 OK AG 5, ¶ 7 (citing OKLA. STAT. tit. 25, § 304(1)).

(See also 2002 OK AG 42, ¶ 3 ("The Silver Haired Legislature, as a group of individuals working on a specific project or general goal, would be considered a public body within the definition of the Open Meeting Act if (1) it is 'supported in whole or in part by public funds or entrusted with the expending of public funds, or administering public property,'; or (2) it is a 'subordinate entity' created by a public body and exercises actual or de facto decision-making authority on behalf of that public body.") (emphasis added))

Likewise, under the Open Records Act, a public body must be

Supported in whole or in part by public funds, OR
Entrusted with the expenditure of public funds, OR
Entrusted with administering or operating public property.

(OKLA. STAT. tit. 51, § 24A.3(2))

This doesn't mean that, as a 2002 attorney general opinion acknowledged, the records of all companies selling goods or services to government are subject to the state's open government laws. (2002 OK AG 37, ¶ 17)

But Paramedics Plus employees have been entrusted with operating the publicly owned ambulances on behalf of a public agency, EMSA. Therefore, their personnel files should be subject to the provisions of the Open Records Act.

Oklahomans are entitled to know and should know who these employees are, their qualifications and any disciplinary actions taken against them.

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 councilman is first 2012 candidate to sign FOI Oklahoma's Open Government Pledge

noreply@blogger.com (FOI OKLAHOMA Inc.) — Sat, 14 Jan 2012 23:36:00 +0000

Norman Councilman Tom Kovach has renewed his support for open government as he seeks another two-year term in the city's municipal election on April 3.

Kovach, 49, is the first candidate in a 2012 election to sign FOI Oklahoma's Open Government Pledge.

He also signed the pledge when he ran for re-election to the Ward 2 seat in 2010.

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

Instructions and a list of signers for the 2011 elections can be found on FOI Oklahoma’s Web site, www.foioklahoma.org.

This past summer, Kovach's fellow council members approved his proposals to make Norman city government more transparent.

Under what became Norman's first records retention policy, all city emails and other records must be
"retained for at least 1 year unless there is pending litigation, in which case it will be retained for at least 2 years after the ultimate disposition or the resolution of the litigation."

Also, all committees, sub committees and ad hoc committees must abide by the state Open Meeting Act
and a state statute requiring that notices and agendas for regularly scheduled meetings be posted on the public body's website.

Kovach said that provision covers advisory committees, even those appointed by the mayor, regardless of whether they have actual or de facto decision-making power.

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

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

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

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

Please support FOI Oklahoma by becoming a member

noreply@blogger.com (FOI OKLAHOMA Inc.) — Tue, 10 Jan 2012 19:03:00 +0000

You can continue and expand the valuable work that FOI Oklahoma does each year to uphold the public's right to know.

January is Membership Month for FOI Oklahoma, and I am inviting you to renew your financial support.

Annual dues for individuals are only $30, but you can also select the $50 category. The student category is just $15.

Further, we ask you to ask your employer if the organization or company can support the work of FOI Oklahoma with a larger membership. The categories are:

$150 for Academic, Public or Government Organizations;
$250 for Non-Profits (e.g., Professional Associations and Non-Commercial Media); and
$500 for For-Profits (e.g., Companies and Commercial Media)

Print the membership form, complete the form with your information, and mail it to the address at the top of the form.

While you are writing down things to remember to do, note the upcoming dates:

March 10: The Sunshine Conference, to be held at the OPUBCO. Nominations for the various awards given at the Sunshine Conference are due Feb. 21st.

Oct. 31: The First Amendment Congress, to be held at the University of Central Oklahoma.

Please let me know if you have any questions or concerns about your financial support of FOI Oklahoma.

If you have already sent in your membership for our new fiscal year (calendar 2012), thank you very much, but please reach out to others you know and encourage their support.

Thanks!

Karen Holp
General Manager, KGOU Radio
Membership Chair, FOI Oklahoma

AG to police: Incident reports must be open for public inspection

noreply@blogger.com (FOI OKLAHOMA Inc.) — Mon, 09 Jan 2012 22:22:00 +0000

State Attorney General Scott Pruitt wants police to know that initial incident reports may not be withheld from the public as part of investigatory files.

"The state Legislature has made it clear in this regard that a police department's initial offense report or 'cover sheet' should be open for public inspection, regardless of its inclusion in an investigation file," Pruitt said in a letter being distributed to local departments.

FOI Oklahoma Inc. asked Pruitt in late November to notify police departments that incident report information must be released when requested.

The Edmond Police Department and others in the state were refusing to provide incident reports, claiming they were part of files that wouldn't be released until investigations were completed.

That reasoning is at odds with the Oklahoma Open Records Act, which clearly distinguishes between incident reports and investigatory files. The statute states:

A. Law enforcement agencies shall make available for public inspection, if kept, the following records:

1. An arrestee description, including the name, date of birth, address, race, sex, physical description, and occupation of the arrestee;
2. Facts concerning the arrest, including the cause of arrest and the name of the arresting officer;
3. A chronological list of all incidents, including initial offense report information showing the offense, date, time, general location, officer, and a brief summary of what occurred;…”
(OKLA. STAT. tit. 51, § 24A.8(A)(1-8))

The statute also states:

Access to records which, under the Oklahoma Open Records Act, would otherwise be available for public inspection and copying, shall not be denied because a public body or public official is using or has taken possession of such records for investigatory purposes or has placed the records in a litigation or investigation file.
(OKLA. STAT. tit. 51, § 24A.20)

The state Legislature drew a clear distinction between incident report information that must be made available for inspection when requested and investigatory files that may be closed to the public, argued FOI Oklahoma Inc.

FOI Oklahoma's complaint wasn't the only one received by Pruitt regarding access to initial incident reports.

Pruitt said that during open government workshops this fall, his staff heard of police departments withholding the reports or delaying release "for up to a week after the incident occurred."

In Pruitt's letter Wednesday to the Oklahoma Association of Chiefs of Police, he urged the organization to discuss the Open Records Act provisions "with police chiefs and law enforcement officers across the state to ensure they are aware of the statutes and can avoid unintended complications...."

The association will forward the letter to local police departments, Pruitt's spokeswoman Diane Clay said Sunday.

Such an explanation shouldn't be necessary because the Open Records Act is clear in this regard.

But Thank You to Pruitt for telling police to abide by the law.

Pruitt is a member of the FOI Oklahoma Inc. Board of Directors. The nonprofit is a statewide coalition advocating for open government.

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 seeks nominations for First Amendment, freedom of information awards for 2011

noreply@blogger.com (FOI OKLAHOMA Inc.) — Wed, 04 Jan 2012 15:16:00 +0000

Nominations are open for FOI Oklahoma’s awards recognizing individuals and organizations that promoted the First Amendment and the free flow of information to the public in 2011.

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

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

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

All four awards will be presented during the Sunshine Week conference March 10 in Oklahoma City. The local conference is in conjunction with national Sunshine Week, March 11-17.

The deadline for nominations for all four awards is Feb. 21.

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

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

Last year, the Opala Award was presented to Joann Bell, who had served as the executive director of the American Civil Liberties Union of Oklahoma since 1988.

This is the fifth year for the open government awards. The 2010 winner of the Blackstock Award was The Oklahoman. The Sunshine Award was presented to state Rep. Jason Murphey, R- Guthrie.

The Black Hole Award went to state Rep. Randy Terrill, R-Moore.

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

Owasso agrees to release police officer lapel camera video, audio materials after family files Open Records Act lawsuit

noreply@blogger.com (FOI OKLAHOMA Inc.) — Thu, 22 Dec 2011 17:50:00 +0000

Owasso city officials have agreed to provide the police officer lapel camera video and audio materials sought by the family of a Tulsa man who died Oct. 27 in the Tulsa County jail, the Owasso Reporter reported Thursday.

The family had filed an Open Records Act lawsuit against Owasso after the police department would release only an arrest report, a radio log and a computer-aided dispatch report.

In the lawsuit, the family argued that the lapel video and other materials were "essential in determining the events which transpired during the arrest," the Tulsa World reported.

An attorney for the city had told the family that the video and audio materials were "in my opinion outside the scope of documents you are entitled to under the Open Records Act," the Owasso Reporter said.

In November, Owasso City Manager Rodney J. Ray refused requests by the Owasso Reporter and Tulsa World for a copy of lapel camera video showing a police lieutenant using excessive force for which he was fired.

Ray said arrest videos are not included in the eight categories of law enforcement records that must be released under the state Open Record Act. (See OKLA. STAT. tit. 51, § 24A.8(A)(1-8))

The statute allows police departments to deny access to other law enforcement records "except where a court finds that the public interest or the interest of an individual outweighs the reason for denial." (OKLA. STAT. tit. 51, § 24A.8(B))

But Ray said the public interest in releasing the lapel camera video of the police lieutenant using excessive force didn't outweigh protecting his right to appeal his firing.

In August, a Rogers County judge held that the Claremore Police Department's dash-cam recordings are not public records under the state Open Records Act.

But Associate District Judge Sheila A. Condren's ruling on the status of police videos runs contrary to relevant cases and to common practice in the state.

In 2005, an Oklahoma County district judge barred "the Oklahoma Highway Patrol from keeping videotapes of traffic arrests secret." (That ruling spurred legislators that year into exempting all Department of Public Safety dash-cam audio and video recordings.)

A year earlier, the state Supreme Court had held that Department of Public Safety recordings of administrative hearings concerning revocation of drivers' licenses were public under the Open Records Act. (Fabian & Assoc., P.C., v. State ex. rel. Dept. of Public Safety, 2004 OK 67)

The Supreme Court said the requested tapes contained facts concerning arrests and therefore were open under the Open Records Act. (Id. ¶ 14)

The statute makes public the "facts concerning the arrest, including the cause of arrest and the name of the arresting officer." (OKLA. STAT. tit. 51, § 24A.8(2))

"By this statute," the Supreme Court said, "DPS is required to make available for public inspection facts concerning the arrest. Fabian asserts that the requested tapes contain the facts concerning the arrest and therefore § 24A.8(A)(2) requires the tapes to be open for public inspection. We agree."

Owasso city officials apparently agreed that the lapel video should be public after the family forced them into court on the issue.

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

Emails reveal likely members of calendar committee, raise doubts about Stillwater school district's open records response

noreply@blogger.com (FOI OKLAHOMA Inc.) — Sun, 18 Dec 2011 00:20:00 +0000

Emails sent from a Stillwater public school official to a calendar committee reveal the likely identities of members omitted from the district's response to an Open Records Act request.

The emails were sent from Annie Needham, administrative assistant for educational services, to committee members on Nov. 10 and Nov. 11.

The recipient lists include johnh@meridiantech.edu, candace.thrasher@okstate.edu, jscott@stillwater.org, stwymcachildcare@gmail.com and toniwolfe@renkids.com.

According to organizational websites, those are the email addresses for:

John Howell, assistant superintendent of Meridian Technology Center in Stillwater;
Candace Thrasher, manager of outreach education for the OSU College of Education;
Jim Scott, operations manager for the Stillwater Parks and Recreation Department;
Sarah Alleman, child care director for the Stillwater YMCA; and
Toni L. Wolfe, director of The Renaissance School at Sangre in Stillwater.

Wolfe provided the emails to Stillwater parent Mitsi Andrews, who last week requested the names of the school district committee that had proposed a controversial school calendar.

Wolfe said Stillwater Superintendent Ann Caine asked her to serve on the committee.

The emails raise additional serious doubts about the sincerity of the district's response to Andrews' request.

An attorney for the district said it had only one document with the names of the committee members and that the record was only a "partial list of members."

Missing are the names of representatives from OSU, Meridian Technology Center, the city of Stillwater and local childcare providers that Caine said were on the committee.

But Needham's emails include the full names for Candace Thrasher and Toni Wolfe. Why weren't these emails included in the district's response?

For that matter, how could Needham have sent emails to the committee if she didn't have a membership list of some kind?

And how could the district contact the non-employee members -- as the attorney said it would do -- to ask for their committee-related emails, text messages and other correspondence also requested by Andrews? (Read related posting on search fee the district wants to charge Andrews.)

And how could Caine reconvene the committee in January, as she told the school board she would do, if she doesn't have their names?

The statutory definition of public record is "all documents, including, but not limited to any book, paper, photograph, microfilm, data files created by or used with computer software, computer tape, disk, record, sound recording, film recording, video record or other material regardless of physical form or characteristic,..." (OKLA. STAT. tit. 51, § 24A.3(1))

That definition "is broad enough to include any method of memorializing information," the state Supreme Court said in 2004. (Fabian & Assoc., P.C., v. State ex. rel. Dept. of Public Safety, 2004 OK 67, ¶ 10)

The purpose of the Open Records Act is "to ensure and facilitate the public's right of access to and review of government records...." Facilitate means to make easier, to bring about.

Public agencies also must comply with not only the letter but also the spirit of the Open Records Act, which says Oklahomans "are vested with the inherent right to know and be fully informed about their government." (OKLA. STAT. tit. 51, § 24A.2)

Even though Caine had made it clear to Andrews that she didn't want the committee member names disclosed, Stillwater residents are entitled to know who helped shaped public school policy.

And now the question is whether the school district fulfilled its obligation under the Open Records Act when it responded to Andrews' request.

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.

Stillwater school district charges search fee, $250 deposit to inspect emails of committee that proposed controversial school year calendar

noreply@blogger.com (FOI OKLAHOMA Inc.) — Fri, 16 Dec 2011 20:32:00 +0000

A Stillwater parent wants to read the emails, text messages and other correspondence in which members of a school district committee discussed a controversial calendar that the school board appears ready to adopt for 2013.

Mitsi Andrews asked to inspect the emails after being told by Superintendent Ann Caine that no minutes existed for the committee's meetings.

Caine and the district won't even tell Andrews the names of all the committee members. (Read the related posting.)

And an attorney for the district now says Andrews has to pay a $250 deposit before the district will begin compiling the emails for her inspection.

And the cost includes a search fee, said Kent B. Rainey of Rosenstein, Fist & Ringold.

Yes. Another school district represented by this Tulsa law firm wants to charge a search fee to disclose records clearly in the public interest -- even though the state Open Records Act clearly prohibits such a fee in such circumstances.

In a letter to Andrews, Rainey said a search of archived emails from July 1 to Dec. 8 found 897 with "calendar committee" in the body. Nearly 21,000 emails were found with "calendar" in the body.

Rainey said the district doesn't archive employee text messages so the 36 district employees on the committee will have to be asked for such messages. He said a method of retrieving the messages would have to be determined.

Rainey said 15 non-district employees serve on the committee. He said those members will have to be asked for emails, text messages and other correspondence that they exchanged among themselves but not with district employees.

(How could the district contact those non-employees if it doesn't have a record of their names?)

All the collected documents will have to be reviewed by district personnel or his law firm for exempted material, he said.

For these reasons, Rainey said, "The District believes your ORA request would clearly cause excessive disruption of the District's essential functions."

Therefore, he said, Andrews will be charged a "fee to recover the direct cost of the document search."

But the Open Records Act prohibits a search fee in these circumstances, stating:

In no case, shall a search fee be charged when the release of records is in the public interest, including, but not limited to, release to the news media, scholars, authors and taxpayers seeking to determine whether those entrusted with the affairs of the government are honestly, faithfully, and competently performing their duties as public servants. (OKLA. STAT. tit. 51, § 24A.5(3))

Andrews' request certainly fits within this provision. She has requested records that can reveal the pros and cons discussed by the committee, and which, if any, alternatives were rejected and for what reasons.

In June 2010, another school district represented by Rosenstein, Fist & Ringold tried to charge a $90 search fee for copies of the district’s itemized legal bills.

The Broken Arrow Public Schools superintendent at the time considered the records request to be "an excessive disruption of the business of the school" because Rainey charged the district for the three hours to redact exempted information from 17 legal bills submitted during a seven-month period.

Current BAPS Superintendent Jarod Mendenhal not only rescinded the search fee when he took office a week later but also agreed that one shouldn't have been charged in the first place. A district spokesman said:

Clearly the Act says in 'no' case shall a search fee be charged when the release of records is in the public interest, including but not limited to, release to the news media, scholars, authors and taxpayers seeking to determine whether those entrusted with affairs of governments are honestly faithfully, and competently performing their duties as public servants.

Most requests fall under that description meaning a search fee can’t and won’t be charged. If a request for commercial uses causes an excessive disruption of the business of the district, it could be assessed a search/administrative fee per the Open Records Act.

Because the Stillwater school district is represented by Rosenstein, Fist & Ringold, it is useful to review legal arguments made by the Broken Arrow superintendent who tried justify a search fee.

Gary Gerber had pointed to this comment by the Oklahoma Court of Appeals in a 1995 case:

We observe that the public interest is as equally well served by public agencies performing their essential services without burdensome, disruptive records requests as in providing release of information to tax payers. (McVarish v. New Horizons Cmty. Counseling and Mental Health Servs. Inc., 1995 OK CIV APP 145, ¶ 3)

In McVarish, the court had quoted with apparent approval the trial judge’s conclusion that "whether or not there's any public purpose or whether it's a matter of a private vendetta ... I think what the legislature was perhaps trying to say was if there's going to be some sort of substantial disruption of business of the public agency then a fee is not improper."

But the trial court had "clearly overstepped its judicial authority" with its interpretation, said an attorney serving on the FOI Oklahoma Inc. board of directors in 2010.

"Clearly, § 24A.5 says no such thing," said Doug Wilson, who won several Open Records Act cases before becoming an assistant district attorney for Tulsa County.

Indeed, McVarish was not mentioned in subsequent attorney general opinions on the meaning of "In no case, shall a search fee be charged when...."

In a 1996 opinion, state Attorney General Drew Edmondson described that language as a "legislative warning," saying:

Should a public body choose to charge a search fee it should proceed with caution in view of the legislative warning set forth in the Act which provides in pertinent part: 'In no case shall a search fee be charged when the release of said documents is in the public interest, including, but not limited to, release to the news media, scholars, authors and taxpayers seeking to determine whether those entrusted with the affairs of the government are honestly, faithfully, and competently performing their duties as public servants.' (1996 OK AG 26, ¶ 13 (quoting OKLA. STAT. tit. 51, § 24A.5(3))

Using absolute terms of his own in a 1999 opinion, Edmondson said, "Further, a search fee cannot be charged when release of public records is in the public interest, such as release to the news media, scholars, authors or taxpayers seeking to determine if government affairs are being properly performed." (1999 OK AG 55, ¶ 15)

Legislative intent also had been "quite clear" to then-Attorney General Robert H. Henry in 1988, when he said public bodies could not charge a search fee to reporters investigating government operations.

"[T]here is no situation under which a member of the news media may be lawfully charged a search fee by a public body," he said. "51 O.S. 24A.5(3) … is quite clear on that point when it decrees 'in no case' may such search fees be assessed in such circumstances." (1988 OK AG 35, ¶ 6 (citing OKLA. STAT. tit. 51, § 24A.5(3))

That prohibition on search fees would seem to apply to Andrews' request given that the same sentence in the statute includes both the news media and "taxpayers seeking to determine whether those entrusted with the affairs of the government are honestly, faithfully, and competently performing their duties as public servants."

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.

Stillwater school district won't disclose all members of committee that shaped school calendar policy

noreply@blogger.com (FOI OKLAHOMA Inc.) — Fri, 16 Dec 2011 17:11:00 +0000

For two months, a committee of Stillwater school district employees and others from the community discussed -- and then proposed -- a controversial calendar for next school year.

No public notice. No agendas. No meeting minutes.

Now, an attorney for the district says only one document with the names of the committee members exists and it's only "a partial list of members."

And a district parent wanting to inspect the committee's emails will have to pay a search fee because the request "would clearly cause excessive disruption of the District's essential functions," said Kent B. Rainey of Rosenstein, Fist & Ringold.

(A later posting on this blog will address why the Open Records Act prohibits a search fee from being charged to the parent.)

Rainey also told Mitsi Andrews that she would have to pay a $250 deposit before the district would begin compiling the emails for her inspection.

Andrews received two letters from Rainey on Wednesday evening, the day after the school board voted to keep the traditional school calendar for 2012-13. But a continuous learning academic calendar will be up for consideration again next year, the Stillwater NewsPress reported.

School Superintendent Ann Caine told the board she had proposed the expanded calendar idea to the district’s annual calendar committee.

District parents learned of the continuous learning calendar proposal in an email from the "SPS Calendar Committee" at 4:10 p.m. on Dec. 2. They were given four days to respond to an online survey about the proposal.

According to that email, the committee consists of a teacher, parent, support staff member and administrator from each school site.

"Additionally, representatives from Oklahoma State University, Meridian Technology Center, the City of Stillwater, and local childcare providers also participated and provided valuable input," the email said.

"As a result of the deliberations of the committee, a proposal is being put forth to move the district to a continuous learning calendar," the email said.

Andrews said that was the first she had heard of the committee and the proposed change for the next school year, so she telephoned and emailed Caine asking for a list of the Calendar Committee members, and agendas and minutes of its meetings.

In an email Dec. 7, Caine responded, "We do not have an agenda or minutes from our committee meetings."

Caine's administrative assistant had told Andrews the committee was not appointed by the school board.

If the committee wasn't appointed by the board, then it isn't subject to the state Open Meeting Act. But no agendas? No minutes? No notes of any kind? How did members know what they were considering from meeting to meeting?

As for the names of the committee members, Caine responded, "I do not feel comfortable releasing the names of the committee because I do not have permission from them to do so."

Andrews asked again but used a more formal request letter.

Rainey responded on behalf of the district. He said the committee has about 51 members, of which 36 are district employees.

The "partial list" of 43 members includes only district employees, parents and Board Member Debra Vincent.

Missing are the names of representatives from OSU, Meridian Technology Center, the city of Stillwater and local childcare providers.

How convenient given Caine's refusal to identify those members. And it's difficult to believe for the same reason.

Caine and other district officials know, of course, who the other members are. They know whom they invited to participate. Certainly, they know who accepted. Didn't the district have sign-in sheets for the meetings?

And how else could Caine reconvene the committee in January -- as she told the school board she would -- to begin drafting another proposal to go into effect in 2013.

But in Rainey's letter, he emphasized, "The District is not required to respond to questions or interrogatories, only to provide documents that are in existence."

In other words, don't bother asking because we aren't going to tell you.

But the public is entitled to know who helps shape public school policy.

The Oklahoma Open Meeting Act states, "It is the public policy of the State of Oklahoma to encourage and facilitate an informed citizenry's understanding of the governmental processes and governmental problems." (OKLA. STAT. tit. 25, § 302)

Oklahoma’s Open Records Act starts with the following statement of principle:

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)

The stated purpose of the Open Records 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."

These important principles apply even in Stillwater.

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.

Oklahoma Supreme Court supports public's need to know by not limiting personal information in court records

noreply@blogger.com (FOI OKLAHOMA Inc.) — Tue, 13 Dec 2011 00:42:00 +0000

Oklahoma Supreme Court justices on Monday unanimously agreed not to ban complete dates of birth and street addresses from criminal and civil court records.

That's a surprise given the majority's ruling in late July denying public access to government employees' birth dates and worker identification numbers in personnel files. The majority said no valid public interest existed in knowing the information.

Just two months later, the court proposed requiring that filers remove all but the year from dates of birth, the street addresses from home addresses, the names of minor children, all but the last four digits of Social Security, drivers license, taxpayer identification and "other personal identification numbers" from court records in criminal and civil cases.

But the rule released Monday leaves complete dates of birth and street addresses in court records.

And it permits -- but doesn't require -- filers to keep confidential all but the last four digits in Social Security, taxpayer identification, financial account and driver's license numbers.

As Chief Justice Steven W. Taylor said in a concurrence:

This rule affirms the doctrine that (other than those sealed or closed by long-established law) every document filed with the Court Clerk is a public record. And this rule does not prohibit the inclusion of any information in any filed document.

Taylor's concurrence was joined by Justice Yvonne Kauger. She and Taylor had dissented in the government employees' date of birth ruling.

Under the rule released Monday, filers are responsible for following the guidelines. District court clerks are not responsible for reviewing documents for compliance. A document filed with the court clerk "become a public record as filed" even if it contains Social Security, taxpayer identification, financial account and driver's license numbers, dates of birth, street addresses "or other sensitive information."

The rule does not apply to felony, misdemeanor, traffic ticket or other cases where statutes or Court of Criminal Appeals rules "require the inclusion of the complete personal identifier number."

FOI Oklahoma Inc. and a number of other organizations and individuals had urged the court to reconsider its proposed limit on information in court records.

The court's decision Monday is a victory for the public's need to know in Oklahoma. The public has an interest in identifying elected officials, government employees and public figures involved in court actions. Oklahomans also have an interest in knowing more about the people in their lives, including those they do business with and those chosen to care for children.

The decision also helps individual Oklahomans distinguish themselves from others with similar names who are involved in court actions. In that way, the rule protects the privacy of Oklahomans.

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.

Update: Owasso officials making 'work session' documents available to public prior to meetings

noreply@blogger.com (FOI OKLAHOMA Inc.) — Mon, 12 Dec 2011 18:02:00 +0000

Owasso residents can now read staff memoranda and other documents that form the basis for policy discussions by the City Council during its monthly "work sessions."

City officials had been withholding the documents, claiming they were drafts exempted under the state Open Records Act.

But the statute contains no provision allowing governments to keep "drafts" secret from the public.

Instead, 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)

In late October, City Manager Rodney Ray agreed to release those "work session" documents to the Owasso Reporter even though he disagreed that the Open Records Act required him to do so.

The Owasso Reporter asked City Attorney Julie Lombardi if the work session documents would be made available to the general public, too.

In November, the city began making the documents available to the general public.

Ray's administrative assistant, Juliann M. Stevens, emailed the September agenda packet to Jennifer Gray, who was a student in my media law course and also an Owasso resident.

The city also is posting the agenda packets for "work sessions" online. See the Nov. 8 packet and the one for tomorrow (Dec. 13).

Thank you to the Owasso city officials for making the documents easily available to the public.

Kudos to the Owasso Reporter for sticking up for not just its need to know but for the public's as well.

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.

Update: Owasso city manager says public interest in releasing lapel camera video of police lieutenant using excessive force doesn't outweigh protecting his right to appeal firing

noreply@blogger.com (FOI OKLAHOMA Inc.) — Sat, 19 Nov 2011 21:38:00 +0000

Owasso City Manager Rodney J. Ray this week refused local newspapers' requests for a copy of lapel camera video showing a police lieutenant using excessive force for which he was fired.

Arrest videos are not included in the eight categories of law enforcement records that must be released under the state Open Record Act, Ray said in an email Tuesday to the Owasso Reporter and Tulsa World. (See OKLA. STAT. tit. 51, § 24A.8(A)(1-8))

The statute allows police departments to deny access to other law enforcement records "except where a court finds that the public interest or the interest of an individual outweighs the reason for denial." (OKLA. STAT. tit. 51, § 24A.8(B))

Former police Lt. Michael Denton was fired Nov. 4 based on an official determination that he had used excessive force in the June 30 arrest of a Collinsville man.

Police Chief Dan Yancey said a police officer lapel camera captured video that was useful in the investigation of the complaint against Denton.

Ray, in denying the newspapers' Open Records Act request for the video, said Denton is "entitled under both local and state law to appeal his termination to the City of Owasso's Personnel Board and to also seek binding arbitration."

"After consideration of a number of factors including rights of arbitration and appeal guaranteed by law to the employee, the City of Owasso has determined that disclosure of the arrest video is not appropriate and does not believe the public interest outweighs the reasons for denial of this request," Ray said. "Therefore, requests for release of [the] arrest video must be declined."

Denton's attorney has said his client did not use excessive force and his firing was unjustified. Denton has initiated a grievance through the Fraternal Order of Police, the Owasso Reporter said Nov. 10.

But Ray didn't explain how public disclosure of the video would jeopardize Denton's rights of arbitration and appeal. Wouldn't the video be introduced as evidence in such proceedings? Wouldn't those officials make a decision based on evidence, not on public opinion? Will the video be released once the arbitration is completed?

As for whether the video should be considered a law enforcement record that must be disclosed, Ray's reasoning follows a Rogers County judge's ruling in August.

Associate District Judge Sheila A. Condren held that the Claremore Police Department's dash-cam recordings are not public records under the state Open Records Act.

She said requesters could ask a court to find that the release of a particular recording would serve a public interest that outweighs the reason for denial.

However, Condren's ruling on the status of police videos runs contrary to relevant cases and to common practice in the state.

In 2005, an Oklahoma County district judge barred "the Oklahoma Highway Patrol from keeping videotapes of traffic arrests secret." (That ruling spurred legislators that year into exempting all Department of Public Safety dash-cam audio and video recordings.)

A year earlier, the state Supreme Court that Department of Public Safety recordings of administrative hearings concerning revocation of drivers' licenses were public under the Open Records Act. (Fabian & Assoc., P.C., v. State ex. rel. Dept. of Public Safety, 2004 OK 67)

The Supreme Court held that the requested tapes contained facts concerning arrests and therefore were open under the Open Records Act. (Id. ¶ 14)

The statute makes public the "facts concerning the arrest, including the cause of arrest and the name of the arresting officer." (OKLA. STAT. tit. 51, § 24A.8(2))

"By this statute," the Supreme Court said, "DPS is required to make available for public inspection facts concerning the arrest. Fabian asserts that the requested tapes contain the facts concerning the arrest and therefore § 24A.8(A)(2) requires the tapes to be open for public inspection. We agree."

The Owasso lapel camera video certainly contains facts concerning the arrest of the Collinsville man in which the excessive force occurred.

Other local law enforcement agencies typically release such recordings. In June, for example, Catoosa officials agreed to release that police department's audio and video recordings. In August, the Oklahoma County sheriff released the dash cam video of a head-on collision in which a deputy was injured.

The public certainly has an interest in seeing how those entrusted with enforcing our laws are doing their jobs.

State legislators should resolve this issue by updating our Open Records Act to explicitly defining audio and video recordings of arrests as law enforcement records that must be disclosed along with incident reports and other information related to arrests.

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.