"If you think you have influence, try ordering someone else's dog around." George Mason

FOI is at a turning point. If FOI is to have influence, to be effective, we must have strength in numbers. We must have renewed personal commitment from our membership. And we must have financial resources.

In this issue of our newsletter, two important "openness" decisions from the Oklahoma Court of Appeals are described. As FOI President, I was given the opportunity to provide input with respect to each of these cases. But what if there were no FOI?

The existence of a vigilant and proactive organization such as FOI Oklahoma is critical to the protection of the public's rights to openness in government. Our active oversight of, and possible participation in important litigation is just one aspect of the purpose of our organization. But it takes an entire village of FOI members to raise the consciousness of decisionmakers, so to speak.

Ironically, as FOI continues to grow, the danger grows that the organization could be crushed under its own weight! Without staff support, it is now impossible to communicate with all our members, produce our newsletter, respond to inquiries from the public, maintain our web site, oversee litigation and legislation, conduct seminars, apply for grants for projects such as our First Amendment project, and so on. Kay Bickham, who provides us such excellent staff support, is indispensable to our continued success.

Your tax deductible contribution to FOI, however great or small, is critical to our ability not only to maintain our current level of staff, but to grow both in membership and in influence. Your personal involvement in FOI is important as well. I encourage you to show your support for FOI, today.

Summaries of records may not be substituted for the "real thing"

A recent decision of the Oklahoma Court of Appeals has upheld the duty of a municipality to provide actual copies of records, rather than to substitute the copies with a summary of what they contain. The decision in Conner v. Basinger and the City of Del City (Case No. 89,284), was issued April 28, 1998.

Conner, the plaintiff, owned a newspaper in Del City. After receiving a tip that some Del City Sanitation Division workers might be abusing their sick leave, Conner requested Sanitation Division records from Del City. The records request, made pursuant to the Oklahoma Open Records Act, included copies of employee time sheets and payroll records for the previous three fiscal years. According to the court's decision, Conner specifically stated in the request that it was not necessary for the city to identify employees by name, but that an employee ID number would be sufficient.

Del City produced the payroll records, but redacted all references to sick leave and vacation leave. The city 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 Conner to determine sick leave dates by the process of elimination.

Conner 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 Conner should receive the information he requested; however, rather than turning over copies of the records, Del City provided a summary of the information. The trial court accepted these summaries as sufficient to satisfy its judgment in the case.

Conner appealed, asserting that the trial court should not have allowed Del City 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 decision notes that in allowing the substitution of summaries for copies of records, the trial court may have been seeking to balance Conner's interests as a member of the public, with those of Del City's employees. However, the Court said that there is no provision in the Act that allows a court to balance an individual's interest in having records remain private with the public's interest in having access to records. The Legislature has determined by statute, the Court said, that the public's interest is greater, except where a specific statutory exemption is given. The Court ruled that Conner was entitled to both the sick leave and vacation leave records, with the employee's name redacted and substituted with an identifying number.

Attorney's fees awarded to Conner
The trial court's order that each party to pay its own costs and attorney's fees was also reversed by the Court of Appeals. The decision notes 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 Conner for his costs and attorney fees.

Conner decision will not be published
Unfortunately, this important decision of the Court of Appeals has been designated as "not for publication." Certainly, proponents of the Open Records Act have long believed that the public's right to records, not substitutions or summaries, was wellestablished. But the necessity of protracted litigation both at the district court level and on appeal, demonstrates the need to underscore this fact once again. Moreover, the consequences of a public body's failure to provide records, as demonstrated by the grant of costs and attorney fees against it, also merited being brought to the forefront through publication of this opinion.

Editor's note: While the decision of the Court of Appeals specifically provided that the names of Del City employees were to be redacted from the records, this was in keeping with Conner's original records request. Whether the employees' names were required by law to be redacted was not an issue in this case.

Home rule city's charter requiring open meetings now subject to Open Meeting Act exception allowing executive sessions.

In an ironic twist, the Oklahoma Court of Appeals recently ruled, in City of Kingfisher v. State of Oklahoma, et al., that the state Open Meeting Act preempts the charter provisions of home rule municipalities. The decision was rendered March 10, 1998.

Proponents of openness might ordinarily be expected to view as sound the underlying principal of the decision, that a city charter may not be used to supercede the openness requirements of the Open Meeting Act. However, 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."

In A.G. Opinion No. 80218, the Attorney General had held that where the charter of a home rule municipality requires "all" municipal meetings to be open, the Open Meeting Act does not allow a municipality to enter into executive sessions. Kingfisher city officials sought a ruling from the court as to whether this statement of the law was correct.

Oklahoma law provides that where the charter of a home rule municipality conflicts with state law, the provisions of the charter will prevail, under certain circumstances. In essence, the charter provision operates as a repeal of the state law, to the extent of the conflict. One exception to this general rule, however, is that charter law supersedes state law only when the charter provision affects a subject that is deemed to be of purely local, rather than statewide, concern.

The issue before the Court of Appeals, therefore, was whether the provisions of the state law authorizing executive sessions, was a matter of statewide concern so as to supercede the Kingfisher charter.

In defending the earlier A.G. opinion, the Attorney General contended that a city charter could expand the protections of the open meeting laws beyond that required by state law. The Oklahoma Municipal League ("OML"), which filed a "friend of the court" brief, argued that an executive session is part of an open meeting, thus executive sessions are not foreclosed by the charter provision. OML also argued that to the extent there is a conflict, the state law must prevail.

It was this latter argument on which the Court based its decision. The Court found that the statutorily permissible executive sessions indicate "a clear intent to protect public and private interests." (Emphasis by the Court.) 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 overruled A.G. Opinion No. 80218, holding that the permissible executive session provisions of section 307 of the Open Meeting Act go well beyond matters of purely local concern. Under the decision, charter provisions of home rule municipalities that conflict with the executive session provisions of the Act were therefore held to be preempted by State law.

Editor's note: This decision deals only with the executive session provisions of the Open Meeting Act, 25 O.S. Supp.1997, §207. Whether city charter provisions conflicting with other sections of the Act are preempted was not decided.

I am pleased to report that the Open Meetings/Open Records Seminars we conducted with your help earlier this year were very successful.

The seminars, cosponsored by FOI, the Oklahoma Press Association and the Attorney General's Office, were conducted in 16 cities across the state between January and April. Area newspapers served as hosts for the meetings, which attracted more than 1,000 people.

Vic Bird, Chief Deputy of the Civil Division in the Attorney General's Office, and I taught the seminars. We were very encouraged by the turnout and the active participation of those in attendance.

We hope to repeat the effort in the future. I sincerely believe that such forums are helpful in instructing public officials about their duties and citizens about their rights under the openness laws.

On another matter, I hope to enlist your support for an idea I plan to press in the next session of the legislature. I believe that the Open Meetings Act should be amended to require the audio taping of executive sessions of public bodies.

The majority of the questions we received during the seminar tour dealt with executive sessions. The public is wary of the sessions, perhaps for good reason and the public bodies are to at least a degree uncomfortable with the provisions in the Open Meetings Act which deal with executive sessions.

I propose that the sessions be taped for two reasons. First, I think requiring the sessions to be recorded would cut down on the length of executive sessions held in my mind a very good idea. Second, I think taping the sessions would keep the discussions in compliance with the law. The tape would provide proof of a violation or compliance with the law.

The executive session tape would be kept separately from the open meeting tape, of course, and would be sealed and filed away as are executive session minutes as are executive session minutes in writing.

I think this proposal would strengthen our law and encourage open meetings. I will welcome your suggestions and assistance as plans to present this for legislative consideration are drawn up.

Have a great summer.

Drew Edmondson

From Beaver County to Lawton to Shawnee, Enid, Tulsa and Bartlesville, public libraries are sponsoring Town Meetings to initiate discussions about open access to information vs. censorship. The following article was reported after a town meeting in the Shawnee library in the spring of this year.

By GLORIA TROTTER

Five leaders from education, libraries, the religious community and journalism agreed in a recent program that censorship is not the responsibility of institutions but of individuals, especially parents.

The five were panelists for a program on "Libraries and Censorship: Your Rights and Responsibilities," presented April 16 at the Shawnee Public Library. The program was sponsored by the Pioneer Library System and the League of Women Voters of Pottawatomie County.

Moderating the panel was Eugene Earsom, social studies coordinator for the Oklahoma State Department of Education and member of the Pioneer board. Panelists were Sue Hale, journalist and president of the National Freedom of Information Coalition; Yvonne Hinchee, branch manager of the Shawnee Public Library; Mary Oppegard, adjunct professor of history and education at Oklahoma Baptist University; and Father Lawrence Stasyszen, vice president for church relations and campus ministries at St. Gregory's University.

Earsom opened the program by noting that "free speech and free press are not American inventions ... but no nation has ... so assiduously protected them." He said that such freedoms are "uniquely filled by libraries, better than the the press or schools ... Perhaps in the library alone one can learn to the limits of what is known." He quoted James Madison as saying "Knowledge will forever govern ignorance."

Oppegard, a longtime teacher in the Shawnee school system, spoke on "civic virtue" and said that it is imperative that we "teach kids to think ... If we have censorship, we will cut off thinking skills ... Educators and parents have the responsibility to make sure materials (printed or on the internet) are age appropriate."

Benedictine monks have for 15 centuries "developed a love of books and libraries," began Father Lawrence. "One of the strengths of our nation is the preservation of religious freedom." The Tecumseh native noted that the world has changed greatly "Even Tecumseh has changed" and that libraries must change too, but "it is not the librarian's task to decide" what is suitable.

Hinchee said librarians "value the dignity of each person" and try to "maintain a balanced collection so that citizens can make up their own minds." She described library staffers as the "navigators to that information." Referring to last year's controversy over the Oscar-winning film Tin Drum, she stressed that library staffers want to know if customers "have concerns about materials ... we encourage families to come in together so parents can aid in the choice of materials. The child has to learn to make appropriate choices." She noted that a parent can have a child's library card withdrawn at any time.

Hale began her presentation with a demonstration of questions that might seem to invade privacy "but not if you're an elected official." In that case, the public has a right to know what stocks you own, your salary and other information. Terming such situations "a balancing act, she cited other examples of why access to information is an important safeguard.

During a question and answer session following the presentations, the panel discussed working with parents, encouraging children to read more, limiting access to materials by a special card (agreed to be undesirable as well as too complicated), and the library's acquisition policy. Father Lawrence drew laughs when he responded to a question about the Catholic Church's "banned book" list in past years.

"That's pretty much before my time," he said, calling it "a big flashing advertisement." He said there is a rating system for books and films published in Catholic newspapers which is "not intended for the public." Oppegard noted that Shawnee Schools use only PG-rated materials, which excludes some excellent books and films. Someone else asked if anyone had ever tried to ban a book in Oklahoma, and Hale said she recalled a try at banning Huckleberry Finn, among others.

Hale also fielded a question about whether newspapers "ever feel the need to selfcensor." She said editors decide what goes on the front page and sometimes withhold information in a police investigation. "We (The Oklahoman) decided not to cover the bombing funerals," she said. "Was that censorship?"

In responding to a question about controlling children's access to the Internet, Father Lawrence said "our whole culture is immersed in things we can't keep children from." Oppegard said "we should go back to the time when parents were responsible for teaching things we now think schools are supposed to do ... we need to have more confidence in family standards and values."

"I'm going to ask you a few questions. At any time you don't want to answer, you can say so.

1. What is your name?

2. Where do you live?

3. Where do you work, if you work outside the home?

4. What is your telephone number?

5. How much is your salary?

6. How much did you pay for your house?

7. In what companies do you own stock?

8. Have you ever had an extramarital affair?

9. Have you ever lied on your income tax return?

Most of us think the last four questions can be considered an invasion of personal privacy unless the person being questioned is a public official. Then you probably want to know certain things, including in what companies does this person own stock, is this person trustworthy, etc.

So what is the public's right to know? From the public's perspective and from the news' perspective....

In a perfect world, the news media's perspective would reflect the public's perspective better known as the public's right to know. I believe that many times it does.

Today, the clashes in information access are coming down to the individual's right to privacy or to protect their children from information they don't want them to have, and the need for unrestricted access to information in a Democracy.

The First Amendment was written to protect individual freedoms. From experience, the authors knew that without legislated protections, these freedoms of speech, press, religion, criticism of the government and assembly could and would be violated by those who have a vested interest in not allowing these freedoms.

There are still many people who have a vested interest or think they should have a vested interest in keeping the actions of government behind closed doors, prohibiting free speech or censoring the written word.

Since we live in a Democratic society, they can't just come out in the open and say we don't want you to know what we are doing. Instead, they tie the restrictive legislation to causes that look innocent on the surface and are sure to generate emotional response without careful analysis of the real reasons such laws are being proposed.

Let me give you some examples:

The motor vehicle registration act. Three years ago, Congress passed a law barring release of motor vehicle information. The action was taken because a woman was murdered after the murderer found out her address from her motor vehicle registration information. Unfortunately, the other side of the story about why this information is needed in the public domain was never told. For example, in Michigan one year, reporters noticed an increase in fatal car accidents due to equipment failures that wouldn't be expected in relatively new cars. Investigation revealed that the cars were damaged during a flood, cleaned up and sold for new on the open market. The reporters used the motor vehicle registration information to trace where the cars came from; saving more lives once the story was released.

Laws that sound good on the surface many times create far more dangerous situations.

Censors of the written word books, Internet sites, and newspapers.

During the past year, the mayor of Boston decided that allowing uncensored access to the Internet in the public library was too dangerous, especially if children would stumble across pornographic sites. So, he required that the library install software to block the sites called Cyber Patrol. When someone asked what sites Cyber Patrol was blocking, the Cyber Patrol company refused to release the list. A computer hacker got into the Cyber Patrol system and found the list and discovered they were blocking such sites as one on Christian dating, one on animal rights and ones on breast cancer.

I am not in favor of pornography, profanity, and a lot of other things that appear in writing and on the computer screen, but like a woman I ran into a few years ago said: " you can't promote freedom of expression and unlimited censorship in the same breath."

This woman had heard me speak about FOI Oklahoma in Tulsa how a state group was being established to promote First Amendment principles. She wrote me a letter saying she wanted to join; that she was definitely in favor of free speech. Then she asked if we would join her in a boycott of a bookstore that was selling a controversial book on abortion.

"Some argue that too much freedom is permitted in this country. People representing various groups ask for money in airports. Movies and books espouse sometimes troubling ideas about sex. Newspapers, magazines, television and radio can seem harshly critical of public officials.

"In our diverse society, the rights being exercised by one individual often collide with the sensibilities of another person or group. But those who try to force everyone to conform to their notion of "good" behavior usually end up eroding personal freedom of each of us.

I want to close with a favorite quote of mine about the press attributed to Alan Barth of The Washington Post:

"If you want a watchdog to warn you of intruders, you must put up with a certain amount of mistaken barking...But if you muzzle him and leash him and teach him decorum, you will find that he doesn't do the job for which you got him in the first place. Some extraneous barking is the price you must pay for his services as a watchdog. A free press is the watchdog of a free society."

FOI Oklahoma, Inc. has formed an alliance with the State Department of Libraries, the Oklahoma County Metropolitan Library System and the Oklahoma Library Association with the goal of establishing a 1st Amendment Resource Section in every public library in the state. Initial funding has been received from NFOIC to develop a model project in four libraries.

A bibliography has been developed with the assistance of Janet Brooks of the MLS. Books will be purchased to supplement the existing books available in the libraries for the Resource Centers. Each model project library will also have copies of the video on Open Meetings and Open Records, which is currently being produced.

A free press has been justifiably described as the "watchdog of a free society," helping to protect constitutional freedoms. Yet it is precisely the freedom to speak up for an idea that is controversial or unpopular that makes America unique among the world's nations. It is the essence of our democracy."

With the able assistance of Diana Baldwin, Billie Rodely, and Sue Hale from the FOI Board and Mac Wall, Billy Perry, Bill Keeling, and Bill Thrash from OETA, we hope to complete the FOI Video by early Fall and be ready for distribution.

Several groups are waiting anxiously for the availability of the videos including the State Library Association and the Oklahoma Association of Chiefs of Police. The libraries hope to have them available in the 1st Amendment Centers, while the Chief of Police Association will be using them in training sessions.

The script will focus on several aspects of the Open Meeting/Open Record law:

* Posting of agendas 24 hours prior to public meetings.

* Specificity of Agendas and necessity of using plain and simple language.

* What constitutes a meeting of a public body.

* Reasons for calling an executive session and how it is posted on the agenda.

* How to tape a meeting.

* What type of minutes must be kept.

* What information is considered public information.

If you are interested in joining the Finance and/or the Membership Committee of FOI, what are you waiting for! Please contact Susan Loving at (405) 8449900.

FOI members with suggestions as to corporate sponsors or other fund raising sources are also asked to contact Susan.

If you know of news other members of FOI would be interested in, or if something FOI related is happening in your community (good or bad), let us know! We also want your suggestions for topics for our newsletter; what would you like to know more about.

To suggest a topic, or to let us know about what's happening in your community, contact Susan Loving at (405) 8449900.

Better yet, write an article for inclusion in the next edition of the newsletter. Deadline: September 1 for the fall newsletter. Send to P.O. Box 2408, Edmond, Ok. 73083.