FOI NEWSLETTER -- SUMMER 2001

1st Amendment Congress Open Records Law Court Opens Names of Felony Charged Juveniles Requirements For Records Requests Attorney General Rulings on Open Meetings Ethics Commission Reporting Rule 2001 Legislative Session House Budget Committee Sessions Opened Local Paper Tackles Credibility Issues Nominees Sought for Openness Awards California Governor Contracts in Secret Open Meeting Law Praised

3 parts of Open Records Law most often broken

by Susan Loving
Fees and fee schedules.
As a general rule, a public body may charge a fee only for recovery of the reasonable, direct costs of document copying, or mechanical reproduction. In "no instance" shall the copying fee exceed twenty-five cents per page, for copies made on paper sized eight and one-half inches by fourteen inches or smaller. Thus, a public body may not simply automatically charge a $.25 fee per page copied, but must determine whether that amount reflects the reasonable, direct costs to the public body for copying or mechanical reproduction.
More importantly, however, the Attorney General has ruled that if the public body is a state agency subject to the rule-making provisions of the Administrative Procedures Act ("APA"), the public body must promulgate rules under the APA, to implement a fee schedule. Other types of public bodies should ascertain whether they are subject to similar requirements.
Further, "[a]ny public body establishing fees under this act shall post a written schedule of said fees at its principal office and with the county clerk."

Requirement of "prompt, reasonable access" to records.
While the "promptness" requirement is clear enough in principle, as a practical matter, it is probably the most often violated tenet of the Open Records Act. What is "prompt" or "reasonable" will depend upon a number of obvious factors--the location of the records, the number of records requested, the size of the public body and its capability of reproducing records. However, a public body: must look only to the nature of the request and the efforts necessary to respond to it, to determine a reasonable response time for the request. There is no provision in the Open Records Act for a public body to 'withhold' records for any amount of time, however, small.

Requirement to have a records officer available at all times. Section 24.5(5) of the Act requires public bodies to: designate certain persons who are authorized to release records of the public body…at least one such person shall be available at all times to release records during the regular business hours of the public body.
Production of records may not be delayed because the records officer is out of the office or because he or she is on vacation, or ill. If a public body does not have regular business hours of at least thirty hours a week, the public body must post and maintain a written notice at its principal office and with the county clerk where the public body is located. The notice must designate the days of the week when records are available for inspection and copying; the name, mailing address and telephone number of the person in charge of the records; and a detailed description of the procedures for obtaining access to the records at least two days of the week, excluding Sunday. For public bodies that are subject to the Administrative Procedures Act, this information should be adopted in the form of a Rule.

Summaries of records are insufficient to comply with the Open Records Act.
In an unpublished opinion, the Oklahoma Court of Appeals held in 1998, that public bodies must provide actual copies of records, rather than substitute the copies with a summary of what they contain.
After an open records request for a municipality's payroll records, the documents were produced. However, redacted from the records were all references to sick leave and vacation leave. The municipality took the position that disclosing which days its employees took as sick leave would invade their privacy and that furnishing vacation leave dates would allow the requester to determine sick leave dates by the process of elimination. The requester then filed a petition in the district court of Oklahoma County, seeking declaratory and injunctive relief under the Open Records Act. According to the Court of Appeals' decision, the trial court ruled that the requestor should receive the information he requested; however, rather than turning over copies of the records, the municipality provided a summary of the information. The trial court accepted these summaries as sufficient to satisfy its prior judgment in the case. The requester then appealed, asserting that the trial court should not have allowed the municipality to provide the summaries as an alternative to the actual records. The Court of Appeals agreed, ruling that there was no authority under the Open Records Act for allowing summaries instead of records. The Court ruled the requester was entitled to both the sick leave and vacation leave records, with the employee's name redacted and substituted with an identifying number.
The decision also noted that the Open Records Act specifically provides that any person denied access to a record of a public body may bring a civil suit, and, if successful, shall be entitled to reasonable attorney fees. The Court thus ordered the trial court to hold a hearing to determine the amount to be awarded the requester for his costs and attorney fees.

Conclusion
It will take acts of courage to improve the public's perception--and in some cases the reality--of the moral and ethical standards of government. The difficulty in complying with Oklahoma's Open Meetings and Open Records Acts is not in understanding what they require, but in failing to understand--or refusing to accept and implement--their intent.
It is every public official's duty and responsibility to know these laws, and to convey to his or her staff and counsel, the importance of compliance.

What information may a public body reasonably require on a form for a records requests?

The Attorney General has held that a public body may require a records request to be in writing, to aid the public body in ensuring that the request is responded to fully and competently. A public body may also properly inquire from the requestor, information that would allow the public body to determine whether the records are sought for a commercial purpose or whether no charges may be imposed for a records search.
As to information regarding the requestor's name and address, the Attorney General has held that "if the requestor asked that records be delivered via the mail, it would be reasonable to request a name and mailing address." However, the Attorney General further stated that it "may also be reasonable to request the name and telephone number of a requestor in the instance where it will take the public body or public official until at least the next day to respond to a request," so that the requestor could be contacted if there are problems in complying with the request, or if the requestor has asked for an estimate of the fee. This comment seems to suggest that the public body may not require a requestor to provide that information.

Attorney General rulings on Open Meetings

Home rule city's charter requiring all meetings to be open is subject to the Open Meeting Act exception allowing executive sessions.
The Oklahoma Court of Appeals has ruled that a home rule city charter may not be used to supercede the openness requirements of the Open Meeting Act. However, in an ironic twist, in this particular case, the city charter provision did not narrow the state Act's requirements, but provided for more openness. According to the Court of Appeals' decision, the charter required that "all sessions" of the city's governing board "shall be opened to the public."
The issue before the Court of Appeals was whether the provisions of the state law authorizing executive sessions was a matter of statewide concern so as to supercede the charter of Kingfisher, which is a home rule city. The Court found that the statutorily permissible executive sessions indicate "a clear intent to protect public and private interests." The Court reasoned that "a clear public benefit accrues from avoidance of possible costly litigation that might result from open expression" of sensitive matters. The Court therefore held that charter provisions of home rule municipalities that conflict with the executive session provisions of the Act were preempted by State law.
Open Meetings Act does not guarantee citizens a right to speak at public meetings.
Although issued more than two years ago, Attorney General Opinion No. 98-45 is recent enough to bear specific comment again because this is always confusing to citizens especially in school districts. The Opinion formalizes the informal legal advice many public bodies have received over the years, that the Open Meeting Act does not provide for or guarantee citizens the right to participate in the governmental decisions being made at an open meeting. The Opinion also rules that the Act does not guarantee citizens a right to express their views on the issues being considered at the meeting.
If a public body voluntarily establishes an open forum at which citizens may speak, the Opinion states, it may establish reasonable time, place and manner restrictions as to the forum. However, if the forum is allowed, any content-based restriction on citizen speaking must be narrowly drawn to effectuate a compelling governmental interest, which must be determined on a case by case basis. Ironically enough, many believe that the philosophy of allowing citizens to speak at public bodies' meetings flies in the face of the agenda requirements of the Act, since public bodies are unable to determine in advance what topics citizens may raise through an open forum. Some public bodies therefore refuse to allow the public to speak, for fear of violating the Act's agenda requirements, while others allow citizens to speak only on the topics already present on the agenda. Still others allow citizens to speak on any topic, but do not respond or discuss the matters raised, except possibly to agree to place the matter on a future agenda.

Federal judge voids part of Ethics Commission reporting rule

US District Judge Robin Cauthron entered an order 25 May 2001 that found a phrase in an Oklahoma Ethics Commission statute unconstitutional. Her order said that factual questions remain as to two other issues raised by Oklahomans for Life. A date has not been set yet for trial of these remaining issues.
Oklahomans for Life Inc. is a 501(c)4 "nonprofit corporation organized to promote the beliefs of its members regarding the sanctity and necessity of protecting human life." It asked the Ethics Commission if it was required to report on its activity including the names and amounts of contributors. When told that it must, OFL sought an injunction in federal court on the issue of infringement of freedom of speech. James Bopp, Jr. and Mike Minnis represented OFL. Andrew Tevington and Mark Jones of the Oklahoma Attorney General's office represented the Ethics Comm. Bopp is an Indiana lawyer who has prevailed in several similar suits in other states attacking required reporting by anti-abortion groups.
The court drew the line on reporting and regulation between what kind of words are used in the literature and whether those words are "issue advocacy" or are "express advocacy." Judge Cauthron cited Buckley v. Valeo 424 U.S. l (1976) where the Supreme Court limited campaign free speech regulation to communications containing words "such as, 'vote for,' 'elect,' support,' 'cast your ballot for,' 'Smith for Congress,' 'vote against,' 'defeat,' 'reject'." Communications that do not contain express words advocating the election or defeat of a particular candidate are deemed issue advocacy which the First Amendment shields from regulation.
Judge Cauthron's order referred to those "magic words" in voiding a phrase in Ethics rules: "taken as a whole and in contest, expressly urges a particular result in an election,".
Neither attorneys nor staff are sure now where present Ethics statutes and rules stand. Judge Cauthron concluded: "Likewise, questions of fact remain concerning the constitutionality of Defendants (the Ethics Commission) enforcement policies." -- Ben Blackstock

Final results from the 2001 legislative session

The following is a summary of most of the significant bills that affected the open meeting or open records acts. Additionally, there were a couple of bills on libel, juvenile crime, and privacy, that needed to be mentioned.

HB 1149 - Frank Davis (R) Guthrie - Died in Senate Judiciary Committee. Would have added school board attorneys to DA's and Municipal Attorneys to list of attorneys that would keep their litigation and investigatory files confidential.
SB 52 - Scott Pruitt - (R ) Broken Arrow - Died in Senate Judiciary Committee. Would have allowed law enforcement to access school attendance records.
SB 486 - Jeff Rabon - (D) Hugo - Died in House Committee. Would have created fine and jail term for using or repeating false information found in campaign materials. Originally exempted media use, but exemption was deleted before bill was killed in committee.
SB 440 - Kevin Easley - (D) Broken Arrow - Passed - Signed by Gov. Created electric utility deregulation task force, but also gave Grand River Dam Authority (GRDA) an exemption for proprietary information in contracts, and an open meeting exemption for executive sessions to discuss contracts for gas and coal purchases.
SB 665 - Dick Wilkerson (D) Atwood - Passed-Signed by Gov. Allows the Board of Medicolegal Investigations (medical examiner) to delete "unsubstantiated rumors" from investigations conducted by the medical examiner.

OPEN MEETING
HB 1276 - Kent Friskup (R) Meeker - Passed-Signed by Gov. The bill requires public bodies to post notices of their meeting on their web site.
HB 1355 - Ray Vaughn (R) Edmond - Died in Senate Judiciary committee. The bill would have clarified procedures for comments by the public at meetings of public bodies.
HB 1433 - Barbara Staggs (R) Muskogee - Passed-Signed by Gov. The bill allows school districts to submit reports to the State Board of Education in electronic form, rather than in written form. The bill would have deleted the requirement that gifted and talented student advisory curriculum committees be subject to the Open Meetings Act. Staggs eliminated the section that would take away the meetings requirement, and moved forward with the electronic filing section of the bill.
SB 410 - James Williamson (R) Tulsa - Died on House Floor vote. The bill would have clarified procedures for public comment at meetings of public bodies.

LIBEL
HB 1617 - Odilia Dank (R) OKC - Died in House Judiciary Committee. The bill would have removed the privilege from court documents and judicial opinions. Neither judges nor attorneys who make statements in court documents would be protected from libel suits. The bill did not remove the privilege exemption from what legislators say on the floor of the House or Senate.

JUVENILE CRIME
SB 157 - Ted Fisher (D) Sapulpa - Passed-Signed by Gov. Would require juvenile sex offenders to register as sex offenders, but would allow public and press to petition courts to open records of past juvenile activity.

OPA was not successful in finding a bill to clarify that past, current, and future arrest records of juveniles who commit felonies would be open to the public. The attorney general will be asked for an opinion of the current statute, or a bill will be introduced to specifically list crimes for which juvenile records should automatically be open.

PRIVACY
HB 1953 - Jim Wilson (D) Tahlequah - Sent to interim study committee. The bill would have created the Medical Information Privacy Act and set up a Commission on Information Practices. OPA concerns are that it does not tie fees charged for records to the Oklahoma Open Records Act, and it is unclear about the duties of the Commission of Information Practices. This legislation may be put aside in light of the federal HIPPA regulations coming later this year.

8 - 1 court "opens" names of felony charged juveniles

In a pair of opinions issued 13 May 2001 the Oklahoma Supreme Court seemed to open all past records of juveniles charged with any of several high felonies (murder, rape, kidnapping, etc.). But, a close reading of the two 8-1 opinions written by Justice Yvonne Kauger tells that before any of a juvenile's past brushes with the law are open you have to get a court order.

So, what has changed? Not much. Kauger and seven justices agreed in the two decisions upholding 1997 and 1999 legislative changes opening the files on persons charged as an adult with specified felony crimes. Justice Hardy Summers disagreed all the way but didn't say why. Justice Daniel Boudreau agreed with the majority and wrote a dissent that the names of other juveniles in the records being released be redacted (blacked out) before the offender's record is made public. Boudreau makes a good point. But, only if a requester hires a lawyer and gets an order from a judge may the records be made public. Here's how that will play out: "Well Sheriff, the DA had filed on that thug as an adult who killed and raped the two girls. The law says that does it to open up all of his past history," a news reporter says at the courthouse. "Not so fast," replies the Sheriff. "The Supremes said you have to get a judge to order me do to it."

Nothing automatic with the filing of charges as an adult under the long list of offenses listed in 10 O.S. Supp. 1997 Sect. 7306-1.1. Why the extra legal hoop to jump through?

This is the case of Robert Wayne Rotramel, a 19 year old Oilton, Creek county, long-time delinquent charged in Aug. 2000 with murdering a 7-year old girl and raping her 12-year old playmate. The Tulsa World sought Rotramel's records but was rebuffed by Creek county Judge Russell Miller. District Judge April Sellers White later opened part of the past records of the accused. Wanting them all, The World appealed to the Okla. Supreme Court citing the First Amendment and the Oklahoma Open Records Act.

"Under the facts presented, the balance of privacy versus the protection of the public weighs heavily in favor of disclosure," Kauger wrote. Juvenile records in Oklahoma have long been secret, sealed or only obtainable by court order. Local police departments, sheriffs and other law enforcement agencies will still be confused as to what they can release on what kind of crimes and particularly on the past records of kids under 18.

Statutes set out several categories of disclosure for ages ranging from 13 through 17. Those need more attention in view of recent school killing episodes of kids under age 10. An increase in violent juvenile crime caused the legislature to attempt to deal with opening the records issue, especially as relates to sex offenders the opinion said. 10 OSS 7306-1.1 lists many offenses for which a juvenile may be charged as an adult.
Thank you Supreme Court but try again to lay it out cold and clearer that when the DA files as an adult on any juvenile then that person's records are up on the counter for all to inspect. And yes, go for the Boudreau blacking out of names of victims and non-charged juvenile participants in all offenses of record.

Repubs force Dems to open House Budget Committee sessions

It was the month of adjournment and all through the House every creature was stirring….
In the beginning of May the 48 Republicans denounced secrecy of some House committee deliberations. Rep. Forrest Claunch (R-Midwest City) fired the first Open Meeting shot thusly: "It's just infuriating that the Legislature forces other public bodies to meet openly, and then excludes themselves from the law."
Amen. We've been grumbling about that but only the legislators can make their own rules, the courts have said.
Anyway, House Dems, who are barely in the majority, agreed to open up the 84-member budget committee to the public and press. But not in the big chamber. In a small room the Fire Marshall said could only hold 50. Fear was expressed by unnamed Demos that members would "grandstand" if meetings are held in the main chamber. Yo! Score one for the Repubs. Whatever it means.
Two weeks later emboldened Repubs tried to oust Speaker Larry Adair (D-Stilwell) but failed in a 50-50 vote with Rep. Benson absent and with two Dems defecting: Reps. Mike Erwin and Ron Langmacher. (The session then adjourned a day earlier than constitutionally required … to avert another try some said.)
Gov. Frank Keating called legislators into special session even before they adjourned from the regular one. The purpose is to complete redistricting of Oklahoma's now five seats; down from six slots because population only went up 3.3% since the 1990 census. State Senators and House members have already passed and the governor has signed redesigns of their districts: 101 House, 48 Senate. There are other topics for the off/on, recess/ meet in-spurts, Special Session of 2001.

Technology and the First Amendment

  • Privacy
  • Filtering
  • Juveniles
  • Government

    1st Amendment Congress - 2001
    UCO's Constitution Hall - Edmond
    November 8 - 9

    • PRELIMINARY PROGRAM

    THURSDAY, NOVEMBER 8, 2001
    Thursday's session is being designed especially for students - Both high school and university--Journalism, Political Science, and Library Science

    8:30 A.M. Registration and Continental Breakfast

    9:00 A.M. Opening Plenary Session The 1st Amendment & Technology
    Fred Cate - Professor of Law and Director,Information Law and Commerce Institute Indiana University

    10:30 A.M. Breakout sessions

    11:45 Lunch - Speaker: Bennett Hazelton, Recipient of the Intellectual Freedom Award and the Creator of Peace Fire.

    1:15 - 4:00 P.M.
    AFTERNOON SESSION
    Panels with Student Editors

    6:00 P.M. Thursday Night Reception & Awards Banquet -- The Ramada Plaza Hotel- Edmond
    Speaker: Paul McMasters, Ombudsman for the Freedom Forum, Washington, D. C.

    FRIDAY, NOVEMBER 9

    8:30A.M. Registration and Continental Breakfast

    9:00 A.M. Opening Plenary Session

    PRIVACY ISSUES -- Speaker: Fred Cate - Indiana University
    Responding Panel: Representatives from Education,Law Enforcement, Media, Government.

    10:45 A.M. Breakout sessions
    Education - Randall Raburn, Chair
    Law Enforcement - Jane Sutter, Chair
    Government - Martin Belsky, Chair

    12:00 LUNCH -- Speaker: Attorney General Drew Edmondson
    E-mail and 1st Amendment Issues

    1:30 P.M. Friday Afternoon Plenary -- The National Scene - Email cases
    Speaker: Scott Armstrong - The Information Trust - Washington D.C.
    3:15 P.M. Electronic Records - Now and into the future.