Owasso officials provide newspaper with 'draft' documents given to council members for 'working sessions' but mum on whether same records will be provided to general public prior to such meetings

Owasso city officials agreed this month to provide the Owasso Reporter with staff memoranda and other documents that form the basis for policy discussions by the City Council during its monthly "work sessions," the newspaper reported today.

But city officials haven't said if the same records will be made available to the rest of the public.

The city posts on its website supporting documentation for actions to be taken in two of its monthly meetings. But it has withheld and treated as confidential the staff memos and other documents that form the basis for council discussions and debates during monthly "work sessions," the newspaper said.

Earlier this month, City Manager Rodney Ray agreed to release those "work session" documents to the newspaper but disagreed that the Open Records Act requires him to do so. He told the newspaper:

While our staff opinion certainly disagrees with your expert’s opinion and we could, for debate purposes, quote other experts with experience in the Oklahoma Open Records Act, there seems to be no real reason to do so.

Our staff’s record, and our agenda packets have been a model for cities in the state because of their transparency and openness to citizens and media. Based on that culture and our desire to go beyond the norm (when possible) when making our governmental actions transparent I have determined that, with some obvious restrictions allowed by statute relating to litigation and personnel, we will begin including the background memoranda in the packet that is provided you for these sessions.

The newspaper had received documents for the council's September "work session" from a source. Among the documents were memos from the city’s administrative staff to the council that were labeled “Recommendation." Some documents were also labeled "draft," the newspaper said.

But the Oklahoma Open Records Act 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)

Just two years ago, the Oklahoma Court of Civil Appeals told Lawton officials to release a "draft" audit conducted by an independent auditor. (Int'l Union of Police Assoc. v. City of Lawton, 2009 OK CIV APP 85)

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

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

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

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

In reaching its decision, the court also took into account the purpose of the Open Records Act "to ensure and facilitate the public's right of access to and review of government records so they may efficiently and intelligently exercise their inherent political power." (Id. ¶ 13, quoting OKLA. STAT. tit 51, § 24A.2)

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

And in 2004, a state trial judge held that information packets distributed along with agendas to members of public bodies are open to the public under the Open Records Act.

“Only those portions deemed confidential pursuant to Statute may be redacted,” said Delaware County District Judge Barry Denney.

Bottom line for Owasso residents: Their city officials have no justification under the state Open Records Act for categorically denying access to documents given to council members.

In an email Oct. 14, the Owasso Reporter asked City Attorney Julie Lombardi if the work session documents would be made available to the general public, too. The newspaper said she had not replied as of its press time for today's edition.

The answer should be yes.

And the City Council members should tell the city manager and attorney to place the "work session" documents online so that the general public has access.

Oklahomans are entitled to know beforehand the details of what a public body will be considering. Otherwise, they has no opportunity to provide input to those elected or appointed officials prior to a decision being made.

If you are an Owasso resident and request the agenda packet for the council's Nov. 8 work session, please let me know what response you get. In the meantime, you can reach your councilman via email on the city website.

Let him know how important an open city government is to you.

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

The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.

The 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.