First Amendment Congress | Open Meetings | Sheriffs, police chiefs include training | Where is access threatened? | Free access to info | From the statehouse

2001 First Amendment Congress scheduled for Constitution Hall - University of Central Oklahoma November 8 - 9

What is technology doing for the 1st Amendment?
Paul McMasters, ombudsman for the Freedom Forum in Washington D. C. will highlight the 2001 First Amendment Congress. McMasters will be the keynote speaker at the 1st Amendment Awards Banquet on Thursday evening. This year's conference will be hosted by the UCO Chapter of the Society of Professional Journalists - Allison Franklin, editor of The Vista student newspaper; Dr. Terry Clark, Chair of the Journalism Department.

The conference has been expanded to include a Jefferson Meeting on the Bill of Rights for university and high school journalism students on Thursday. The Jefferson Meeting is what a constitutional convention might look like if delegates were to gather to discuss the Bill of Rights as it relates to an educational setting in contemporary America. The biggest difference is that the purpose is to educate rather than to pursue political change. The emphasis is on the debate itself and the process of exchanging ideas.

The planning committee for the 1st Amendment Congress includes representatives from FOI Oklahoma, The Oklahoma Department of Libraries, the Oklahoma Library Association, ACOG, Oklahoma Press Association, the School Board Association, and the Okahoma Bar Association.

Open Meetings: the rules most often broken.
by Susan Loving

Informal gatherings.

Section 306 of the Open Meetings Act prohibits "informal gatherings or any electronic or telephonic communications [except as authorized by the Act]...among a majority of the members of a public body…to decide any action or to take any vote on any matter." The Act applies to more than action taken by public bodies through a formal vote; it applies to meetings, that is, to "the conduct of business" by a public body. Thus, gathering together for "pre-meeting" meetings, at which agenda items are explained or discussed with staff, could clearly be deemed by a court to be the "conduct of business." While under the Act, there is no prohibition against less than a majority of a public body's members meeting with themselves or with staff, it seems clear that the spirit, and probably the letter of the law, is violated by "pre-meeting" meetings attended by a majority of the public body, at which agenda items are discussed. The legislature clearly intended the "conduct of business" to encompass more than merely the final vote on a matter; otherwise, it would have defined "meeting" in narrower terms.

Agenda items: How much is enough?

General requirements for agenda items are fairly simple, and are well understood by most public officials. The law requires that: All agendas…shall identify all items of business to be transacted by a public body at a meeting, including, but not limited to, any proposed executive session for the purpose of engaging in deliberations or rendering a final or intermediate decision in an individual proceeding prescribed by the Administrative Procedures Act.

Thus, the Attorney General has held that an agenda item stating, "Information to the committee," was "too vague to inform the public of the nature of any business to be transacted under that item" and was therefore insufficient under the Act. Similarly, such vague items as "report" by the mayor, executive director, or others, is probably too vague, as the public will not be informed as to the topics to be covered by the report. Regardless of whether the public body will take action on the report at the meeting, the public body's business is being conducted. Moreover, the public body may gain information through a "report" on which action may later be taken.

Executive sessions

Executive sessions often pose difficult problems for public bodies, insofar as the sufficiency of agenda items is concerned. By its very nature, the purpose of an executive session is to have a lawful, private discussion about matters to which the public body does not want--and is not required--to make the public privy. Nevertheless, the law requires that the agenda shall:

(a) contain sufficient information for the public to ascertain that an executive session will be proposed;
(b) identify the items of business and purposes of the executive session; and
(c) state specifically the provision of Section 307 [of title 25] authorizing the executive session.

The Attorney General has ruled that an "agenda item for a meeting of a public body in which personnel matters are to be discussed and for which an executive session is proposed must identify either the position or the individual salaried employee who is the subject of the discussion." Noting that the Open Meeting Act does not specify that an employee who is the subject of discussion at an open meeting must be identified on the agenda by name, the Attorney General nevertheless concluded that "identification by name is necessary unless the position named for discussion is so unique as to allow adequate identification."

Claims or proceedings on advice of attorney.

Another area in which executive session agenda items are often insufficient involves executive sessions to discuss confidential communications between a public body and its attorney…if the public body, with the advice of its attorney, determines that disclosure will seriously impair the ability of the public body to process the claim or conduct a pending investigation, litigation, or proceeding in the public interest." The executive session agenda item should reflect there will be a report from the attorney as to whether disclosure will seriously impair the public body's ability to process the claim, and there will be a vote by the public body as to the public body's determination as to that matter.

As with the outcome of any executive session, if the public body intends to take action with respect to the matter discussed in executive session, the action must be taken in an open meeting, and the agenda item must reflect that action may be taken. For executive sessions concerning litigation, however, it may be impossible to vote in open session, without defeating the purpose of the executive session. For instance, the public body may authorize a monetary settlement of a claim, within a range of amounts. Obviously, the upper limit on that authority should remain confidential, or the claimant will never settle for less. Counsel's only choice will be to listen to and evaluate the comments of the members of the public body in executive session, without ever receiving explicit, formal settlement authority.

The duty to keep minutes in executive session.

It is clear that minutes must be taken not only of the proceedings in an open meeting, but in executive session. However, the public body may choose to designate one of its own members to keep the minutes. Pursuant to the Open Records Act, these executive session minutes are not open records unless there is a violation of the Open Meeting Act, as to the executive session.

Sheriffs, Police Chiefs include open meeting/open record education in training sessions The Oklahoma Sheriffs Association schedules two week-long workshops each year for newly elected sheriffs. Mark Thomas of OPA and Gay Tudor of the Attorney Generals Office did a joint session on the Oklahoma Open Records Act. The first educational session was in Lawton on February 12th and the second training session was in Wagoner on February 26th. Additionally, Attorney General Drew Edmondson and Mark Thomas of Oklahoma Press Association will be speaking to the Metropolitan Police Chiefs about the requirements of the Oklahoma Open Records Act. Their panel discussion is at the Metro Police Chiefs meeting on Thurs., March 1. Association of Chiefs of Police Executive Director Jim Cox has asked OPA to order 300 copies of the Oklahoma Open Meetings/Open Records Act handbook. Chief Cox thinks all sheriffs should have a copy of those acts on their desks. OPA is negotiating with the chief for a discounted price. In addition, FOI Oklahoma is working with the association to produce a training video.

Where is access threatened?
By Sue Hale

Journalists have been gleefully jumping into the pool of government databases made more accessible by the internet and a proliferation of software that manipulates and increases storage of records.

But, we're not swimming for free and there is a real risk of records "pools" being closed or at least restrictions being imposed on who can use them.

Last fall, the research subcommittee of ASNE's FOI Committee started work to determine how commercialization of public records is affecting the ability of journalists to gather information. We discovered that commercialization was only one avenue where access was being threatened.

For example, a group of state attorneys general were planning in late January to tell Congress not to pull the rug out from under state privacy laws. Such laws determine how much information is made available through state government databases and at the present time, those laws vary from state to state.

So far, we can summarize what we have learned as follows:

Privacy concerns may stimulate overreaction in cutting off the flow of information.
National security concerns are threatening restrictions not only in public records held electronically but also in the more traditional methods of keeping records.
There is a lack of statutory provisions governing public records access when third-party contractors take over government functions such as operating prisons or providing school bus service.
And finally, what we were actually looking at - the government's desire to produce revenue with commercialization of records may severely restrict the public's right to access records due to inability to pay the fees.

Technology is not the root of all evil but it is the underlying reason those who worry about privacy or national security have more to worry about.

Personal information is a highly desirable commodity and is used by people in marketing to target advertising or even develop new products.

Private companies are now heavily invested in technology that keeps track of consumer behavior, information being used by retail, medical, insurance and banking sections. Government agencies are adopting this technology for uses from geographic information systems for municipal mapping to sophisticated computers for docket management at the county court. With these uses, government-held information about individuals may be included.

Adding to privacy concerns is the fact that commercial database services which use a combination of public records, publicly available information and proprietary data, have been largely self-regulating. The data warehousing market is expected to grow from $10.9 billion in 1999 to $27.6 billion in 2003.

Journalists have been among the first to sign up with database companies to mine for information. In an article in the San Jose Mercury News (Sept. 24, 2000), Dan Gillmor wrote, "We use it more responsibly than others, I'm confident. But that only dodges some bigger questions - such as whether it's proper for personal data to be so open in the first place…"

While legislators contemplate the privacy concerns of their constituents, the federal government is involved in a number of initiatives to restrict and control the flow of information concerning the nation's infrastructure because of security concerns.

Perhaps most illustrative of the strength of national security arguments in efforts to restrict access to electronic information is the Chemical Safety Information, Site Security and Fuels Regulatory Relief Act. The law was enacted in 1999 to prevent the Environmental Protection Agency from posting on the Internet "worst-case scenario" reports from 30,000 chemical facilities across the nation.

Federal officials were able to persuade Congress that terrorists and criminals might use the information to identify sites vulnerable to sabotage. Even though that threat was speculative, hundreds of deaths and thousands of injuries have resulted from accidents at these sites that public awareness requirements were designed to prevent.

The law erased provisions of the 1990 amendment to the Clean Air Act requiring the government to make risk management plans containing the worst-case scenarios available to citizens to alert them to possible hazards in their communities. The reports do not contain security information, storage tank locations, classified information, or clues as to how a release of chemicals could be triggered. Nevertheless, the law exempted the reports from FOIA, overrode provisions of the Electronic FOIA and pre-empted state FOI laws.

Complicating the access question is government agencies contracting for third-party operation of various services. The responsibility of third-party contractors to abide by openness laws is periodically addressed in various court cases across the country but without any definitive rulings to date that can be universally applied. In some cases, third-party contractors are even more reluctant to release information even though technology has given them the ability to easily do so.

A case in New Jersey ruled a computer spreadsheet prepared by a consultant for a hospital district was not subject to the state's openness laws because it was not a record required to be kept under state law. Last fall in Oklahoma, a private company operating a county jail refused to release documents and photos of juveniles who had been charged as adults although state law allows for the release of that information. There is also a statute that says any state laws governing jails shall apply to jail properties operated by a private prison contractor. The contractor, however, was (and still is) refusing to release the information for fear of liability and does not consider its operation covered by state law.

Then we move to the issue of governments wanting to profit from the data they possess.
Griff Palmer, former database editor at The Daily Oklahoman and now at the San Jose Mercury News, analyzed Oklahoma state revenue records and found the Oklahoma election board was realizing thousands of dollars a year in revenue from sale of voter registration and history data to private vendors and political candidates. The election board also wanted to charge news media the same commercial fees.

The Oklahoma attorney general's office told the election board it had to adhere to the direct cost provisions of the state's open records act.
Election board officials had a bill drafted called the "Voter Privacy Protection Act" that declared voter registration data not subject to the state's openness laws and made it a misdemeanor for anyone but the state election board to provide copies of the data to anyone. The bill passed the state Senate but was killed in the state House.

While usually prohibiting large fees for sale of data by state agencies, many state statutes allow such fees to be charged by county agencies. California statutes have provisions that allow assessors to charge for essential public records. The Santa Clara County Assessor's Office, for example, prices its assessment database at $40,000 per copy.

Our committee included some research into what other countries are doing with public records. We have discovered that debates rage over the same issues we confront in the United States. Foremost have been the dual challenges of privacy protection and the internet.

Both abroad and here, concerns are being raised over archiving e-mail sent by government officials and the use of highly sophisticated storage and retrieval programs that aid in the development of everything from the county fair promotion brochure to the full government budget calculations.

So, do we have a conclusion on how all this is affecting what we do? To date, our conclusion is that all of these innovations to methods of access are both a blessing and a curse and as to which is which, it depends on what information you are looking for and where you live.

What is most important is that legislation is continuing to be introduced and passed on both a state and federal level that can have far reaching consequences to our ability to gather information. It is critical that we are not lured into being passive because we have the financial resources to overcome almost any cost limits to access to extensive database information. The public doesn't have those resources. And after all, it's the public's right to know we are here to protect.

Contributors to this article include Tonda Rush, president and CEO of the National Newspaper Assn.; Terry Maquire, new media consultant and general counsel to the World Association of Newspapers; Paul McMasters, ombudsman for The Freedom Forum and Paul Monies, student at the U. of Missouri.

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