FOREWORD

Oklahoma has had an Open Meeting Act since 1959. The original statute consisted of a single paragraph with general language and no definitions. In 1978 the old act was repealed and replaced with a much more expansive model which has remained in place to the present time.

For more than forty years, the Oklahoma Open Records Act consisted of a single paragraph:

It is hereby made the duty of every public official of the State of Oklahoma, and of its subdivisions, who are required by law to keep public records pertaining to their said offices, to keep the same open for public inspection for proper purposes, at proper times and in proper manner, to the citizens and taxpayers of the State, and its subdivisions, during all business hours of the day; provided, however, the provisions of this Act shall not apply to income tax returns filed with the Oklahoma Tax Commission, or other records required by law to be kept secret.

51 O.S. §  24 (repealed).

This statute was subsequently re-written and has been a source of constant amendment as governmental entities attempt to expand the umbrella of confidentiality.

Open Records Act

The longevity of this Act was undoubtedly because the burden was on the public official to demonstrate that the record was confidential under an existing statute. However, the Oklahoma Open Records Act became the subject of amendment efforts when two 1984 Oklahoma Supreme Court decisions effectively weakened the plain meaning of the statute.

The first decision dealt with access to records maintained by the Governor concerning the expenditure of legislatively appropriated funds for his mansion account. The Court ruled that the records, even though maintained to document the expenditure of public funds, were not specifically required to be kept. Oklahoma City News Broadcasters Ass'n Inc. v. Nigh, 1984 OK 31, 683 P.2d 72. The statute authorizing the Governor's mansion fund was silent as to confidentiality of any records maintained on fund expenditures, i.e. the statute did not require the records to be kept confidential. The conflict between the Governor's office and the news media was subsequently resolved by the legislature which amended the mansion account statute to require an itemized report of all expenditures made by the Governor in the mansion account. However, this did not allow for access to records of expenditures prior to the amendment.

The second Oklahoma Supreme Court case involved access to arrest records maintained by a city police department. The high court held that state law was silent as to whether these records had to be kept by the police departments and thus under state law police departments could not be required to release these records. However, the charter of the city involved in this dispute contained a provision which required maintaining the records and thus the records were required to be released. Oklahoma Pub. Co. v. City of Moore, 1984 OK 40, 682 P.2d 754.

Because of these decisions and their broad impact, the Open Records Act was amended. The first significant changes included (1) the incorporation of language from the Oklahoma Open Meeting Act to define a public record and a public office as that which concerns "the transaction of public business, the expenditure of public funds or the administering of public property"; (2) requiring that all public offices and officials maintain records concerning their office and specifically required that records "of the receipt and expenditure of any public funds effecting all financial and business transactions" be kept; and (3) requiring law enforcement bodies to make available facts concerning the arrest, conviction information, disposition of all warrants, criminal summaries, and jail registers.

While the Act did establish numerous new exemptions for some public records, the Act has been a significant improvement over the old law as interpreted by the courts.

Even though the amended Act did not contain any legislation concerning the right of privacy, the Oklahoma Supreme Court found that the right should be considered when releasing records. Tulsa Tribune Co. v. Oklahoma Horse Racing Commission, 1986 Okla. 24, 735 P.2d 548. In 1986, the media sought access to financial statements filed with the Oklahoma Horse Racing Commission by the successful applicant for establishing a race track and facilities in Oklahoma City. The financial data sought was submitted as part of the application process. The Oklahoma Supreme Court found that the legislators had intended to create a privacy act similar to the federal Privacy Act. The Court held that the legislature intended to provide exemptions from disclosure where the release of information possessed by a public body might be damaging to an individual. The Court not only found a "privacy act," it also established an administrative procedure to be followed when the "privacy act" was invoked. The Court held that the public body must give notice to the individual about whom the information is sought that a request has been made and that the individual has an opportunity to file a written objection to disclosure with the public body within a reasonable time following the notification. The Court did say that the burden was on the person seeking to limit disclosure to show why he was entitled to the exemption.

In its 1988 session, the Oklahoma Legislature addressed the Supreme Court ruling creating a privacy act in the Oklahoma law. The language setting forth the purpose of the act was amended to state:

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. The Oklahoma Open Records Act shall not create, directly or indirectly, any rights of privacy or any remedies for violation of any rights of privacy; nor shall the Oklahoma Open Records Act, except as specifically set forth in the Oklahoma Open Records Act, establish any procedures for protecting any person from release of information contained in public records. The purpose of this 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. The privacy interests of individuals are adequately protected in the specific exceptions to the Oklahoma Open Records Act or in the statutes which authorize, create or require the records. Except where specific state or federal statutes create a confidential privilege, persons who submit information to public bodies have no right to keep this information from public access nor reasonable expectation that this information will be kept from public access; provided, the person, agency or political subdivision shall at all times bear the burden of establishing such records are protected by such a confidential privilege. Except as may be required by other statutes, public bodies do not need to follow any procedures for providing access to public records except those specifically required by the Oklahoma Open Records Act.

51 O.S. § 24A.2.

In 1993, the Oklahoma Supreme Court recognized that the legislature had disagreed with the court's creation of an administrative procedure to protect alleged privacy interests.

These amendments [51 O.S. § 24A.2.] to the Oklahoma Open Records Act show beyond credible argument to the contrary that the legislature disagreed with our interpretation, in Tulsa Tribune, of the Act. . . . Given this strong public policy it is not surprising that the Act, as amended, grants no right to notice and hearing, or any other procedural protection, with respect to the records covered by the Act's terms. Further, the Act relieves public bodies of any obligation to provide any procedural protection not 'specifically required' by the Act or another statute. These provisions ensure that the public will have 'prompt and reasonable access' to governmental records.

City of Lawton v. Moore, 1993 OK 168, 868 P.2d 690, 692.

In 1996, the Oklahoma Court of Appeals reiterated the Supreme Court's conclusion.

There is, however, no provision in the Open Records Act which allows a court to balance an individual's interest in having records remain private and the public's interest in having access to the records. The Legislature has determined by statute that the public's interest is greater, except where specific statutory exemption is given.

State of Oklahoma v. Migliaccio, 1996 OK CIV APP 37, 917 P.2d 483.

The Appeals Court stated that:

In City of Lawton, the Court, notwithstanding its holding in Tulsa Tribune that notice must be given to persons affected by release of records, held Lawton was not required to give notice under the amended Act which said public bodies need follow only those procedures in the Act. The Supreme Court found the amended Act's lack of a notice requirement was intended by the Legislature to ensure the public had prompt and reasonable access to governmental records.

Id.

In 2009, however, an opinion issued by the Oklahoma Attorney General essentially revived the notion that an individual must be given notice before the public body can release certain information about the individual.  The Attorney General noted that “the presumption would be that they [dates of birth] are open unless the exception [for privacy] is (1) claimed and (2) found to outweigh the public interest in the requested record.” He further wrote that a “general policy prohibiting disclosure would constitute a legislative determination beyond the authority of the public body.” 2009 OK AG 33.  At issue in this opinion was the right of public bodies to deny access to portions of public documents containing identifying information (such as birth dates) of public employees.  As a result of the opinion, litigation has ensued between the public employees association and several new media outlets as to the private nature of this identifying information.  If the public bodies continue to deny access to identifying information about public personnel, the public will be unable to correctly discern from the name alone who is the subject of public action. This will lead to misidentifications causing more harm than the alleged privacy claim.

Open Meeting Act

While the act has been improved through the years, there are still problem areas remaining. Two of the more important areas of concern from the inception of the Act have centered upon enforcement of the act and the definition of committees and subgroups which fall under the act.  These issues remain today.

Criminal Enforcement. The 1990s saw a greater effort on the part of some law enforcement officials to enforce the Open Meeting Act through criminal prosecutions. On at least three occasions, criminal complaints have been filed against public officials for alleged violations of the Act. While two of the cases against public officials were dismissed — and the dismissals were upheld by the Oklahoma Court of Criminal Appeals in unreported cases — one case resulted in three members of a city commission pleading guilty to two misdemeanor counts involving violations of the Act.

In the one case where guilty pleas were entered, the commissioners had been accused of meeting among themselves and deciding to fire the city manager and replace him with another individual. Suspicion was first raised when both actions were taken without any discussion during the public meeting. A district attorney's investigator subsequently uncovered the times and locations of the meetings in which the three commissioners had made the decisions.

While the other two criminal prosecutions were dismissed by the Courts, one did lead to a change in the Act. Members of a board were charged with violating the Act when they refused to allow a member of the public to tape record the public meeting. The charges were dismissed because the Court found the Act did not specifically allow the public to tape record meetings. While the case was on appeal, the Oklahoma legislature amended the Act to include a provision for the public to record — with audio or video machines — the public meetings.

It is today very difficult to obtain a criminal prosecution of a violation of the Act.  This is true even though there has been an increase in civil actions that have resulted in determinations that public bodies had violated the Act.

Committees Appointed by Public Bodies. In 1978, in a case which was appealed prior to but considered after the present Open Meeting Act was passed by the legislature, the Oklahoma Supreme Court upheld a lower court decision that a subcommittee was merely advisory in nature and therefore not subject to the Act. The lower court decision was, at least in part, why the Act was amended. In Sanders v. Benton, 1978 Okla. 53, 579 P.2d 815, the Supreme Court considered a challenge to the Board of Corrections' selection of a community treatment center site because the board's selection had been made based on recommendations by a citizens' advisory committee which did not hold any open meetings. The Court concluded that the committee was merely acting in an advisory capacity and thus would not be subject to the Act.

If Sanders had been decided under the amended Act, the result may have been different because a specific definition of public bodies is contained in the new Act. This definition includes virtually all groups who are appointed by and have dealings with elected public bodies and officials. The key language in the Act now provides that any entity "supported in whole or in part by public funds, or entrusted with the expending of public funds, or administering public property" shall be a "public body" for purposes of the Open Meeting Act.

However, the Supreme Court has subsequently addressed the applicability of the Sanders decision under the new law and has specifically upheld its application. International Ass'n of Firefighters, Local No. 2479 v. Thorpe, 1981 OK 95, 632 P.2d 408. The issue in International Ass’n of Firefighters was whether Sanders extended to individuals. The City Manager engaged in negotiations with the firefighters on the collective bargaining agreement. The Court held the that the City Manager did not have the authority to bind city to an agreement and thus the collective bargaining negotiations were not open meetings.

Thus, an advisory committee created by a public body and having no actual or de facto decision-making authority is not subject to the Act.