Cities and state agencies push back against Oklahoma open records law

Collaborator: The Frontier
Published: 03/23/2022, 2:36 PM

Written By: Kayla Branch

Photo Courtesy: Brianna Bailey

Editor’s note: The Frontier is publishing this story in conjunction with Sunshine Week, an annual nationwide event to celebrate access to public information.

(OKLAHOMA CITY, Okla.) For the six years John Browne has served as mayor of McAlester, city staff have struggled to compile thousands of pages of documents for one former municipal worker’s constant open records requests.

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Former City Manager Randy Green was sentenced to more than four years in federal prison in 2006 for embezzlement. Green later began submitting laborious open records requests as part of a “vendetta against the city,” Browne said. At times, the McAlester city clerk said she spent half of her work week fulfilling the requests, which ranged from employee applications to the number of tickets written on specific roads. The local hospital needed additional help to review requests and compile records that he never picked up, according to two city employees.

“It was solely a harassment tool,” Browne said. 

Green would frequently post on Facebook about problems he saw with the way the city was run and information he received through open records requests. Before his death in November from COVID-19, Green posted about a successful citizen petition to audit the city and questions about the management of the local hospital

Seeking relief from Green’s onerous requests, the city of McAlester brought its concerns to Rep. Jim Grego, R-Wilburton, who authored House Bill 3475. The bill language sought to try to address “excessive disruption” caused by repeated open records requests. While the Oklahoma Open Records Act seeks to protect the public’s right to information, the bill would have given local record custodians broad authority to decline requests. 

But Grego pulled his bill a few weeks into the legislative session after freedom of information advocates and journalists voiced concerns about the chilling effect the bill would have on public transparency. The bill was one of a handful filed this legislative session targeting the state’s open records law.  A bill giving exemptions to the Commissioners of the Land Office and a bill allowing cities to hike up the price to fulfill records requests also were pulled from consideration this session after public backlash. 

Instead, lawmakers, cities, state agencies and members of the press plan to hold a series of meetings this summer to try and compromise on changes to the state’s open records law and bring back new plans next year. 

“We need to make a concerted effort to understand each side,” said Mark Thomas, executive vice president of the Oklahoma Press Association. 

In recent years, cities and state agencies have pushed back against transparency requirements in the Oklahoma Open Records Act intended to protect the public’s right to know how tax dollars and other resources are spent. Government agencies have argued that complicated or large records requests disrupt their core functions and impact economic development. Oklahoma already has more than twenty specific exemptions to the Open Records Act, and roughly 150 specific laws that keep certain types of documents confidential, according to the Reporters Committee for Freedom of the Press. 

At least two bills are still making their way through the Legislature this session to add even more exemptions. 

“Government always wants to operate in secret,” said Joey Senat, an Oklahoma State University media professor and advisory board member of the nonprofit Freedom of Information Oklahoma. “The problem for the public is that with that secrecy comes corruption, incompetency and inefficiency.”

Oklahoma has a history of noncompliance with open records requests. Earlier this year, state officials determined that applications from state agencies vying for $1.87 billion in federal COVID-19 relief funding would be exempt from the Open Records Act

The state was chosen in 2020 to be part of the Local Legal Initiative through the Reporters Committee for Freedom of the Press because some public officials have “become increasingly resistant” to complying with open records and open meetings laws, according to the RCFP. 

Bills that were pulled

In Oklahoma City, records departments have received a growing wave of requests in the last few years, particularly after police began wearing body cameras. The city clerk’s office received nearly 5,000 requests last year, and the police department is on track to receive over 17,000 requests this year, city officials said. 

How to manage those requests — a large chunk of which come from for-profit business interests including real estate developers, lawyers and research groups — has been a challenge, said Oklahoma City Clerk Amy Simpson. 

The Oklahoma City Council approved a legislative agenda last fall that included asking the state to update the fee structure for records because of the high cost and increase in requests, said Jane Abraham, the city’s legislative liaison. 

Sen. Tom Dugger, R-Stillwater, filed Senate Bill 1272 on behalf of the city to increase the cost of requesting records. Dugger also filed another bill to limit law enforcement information available to the public. 

Those bills were pulled before the 2022 legislative session began after people warned that increased fees would be prohibitive.

Senate Bill 1159, which would extend open records exemptions to the Commissioners of the Land Office, was also pulled from consideration this year. 

Bennett Abbott, general counsel for the Land Office, said the agency has wanted to financially invest in businesses in the state, but if private companies share their information, it would become a public record. 

“They aren’t inclined to send us any information because their secret information would become an open record. And we aren’t inclined to invest with them if we can’t look at their information,” Abbott said. “It was a problem that needed to be solved.” 

Senat said he is skeptical of the idea that the details of business deals with the state would need to be secret, especially since businesses often get government benefits at a cost to taxpayers. 

Sen. Julie Daniels, R-Bartlesville, who voted against several bills that would limit access to records this session, said lawmakers struggle with the line between privacy and security and the public’s right to know. But blanket exemptions for large agencies that handle millions of dollars is a step too far, she said. 

“I just think it goes against transparency,” Daniels said. 

Bills that are still active

While the bills that open records advocates considered the most harmful were pulled this session, a few others are still making their way through the legislative process. 

Senate Bill 1733 aims to clarify and reinforce that university foundations, which handle private donations and most economic development for public universities, are completely exempt from open records requests. 

Author Senate Pro Tem Greg Treat, R-Oklahoma City, said the bill is intended to combat “frivolous lawsuits” against university foundations for records. The bill passed on the Senate floor earlier this month, though several Republicans joined Democrats in voting against the measure. 

“Our foundations are lobbying, serving staffing purposes like recruiting students,” said Sen. Julia Kirt, D-Oklahoma City. “I’m concerned we are essentially shielding a big part of university function from public scrutiny.” 

Former University of Oklahoma general counsel Fred Gipson sued OU’s Foundation in 2018 after the school refused to provide records regarding a large development district it pushed for in Norman. The foundation later agreed to settle the lawsuit and provide the records. OU has a long history of noncompliance with the state’s open records laws. 

Two companion bills, House Bill 3569 and Senate Bill 1356, both seek to expand open records exemptions for the Grand River Dam Authority, the state’s public power utility. 

The Grand River Dam Authority began receiving a barrage of records requests after the death of two employees last year following a dam explosion, Thomas said. The agency asked for an exemption to state open record law when it realized some critical infrastructure information might be exposed, he said. 

Senat says the bill would allow the agency to easily hide “incompetency and inefficiency.” 

The bill would also allow the agency to sign confidentiality or nondisclosure agreements, which have become more common when state agencies do business with private companies. 

Last year, the state Department of Commerce pledged a package of incentives to the electric vehicle company Canoo valued at $300 million, but many details were shielded from public view because of a confidentiality agreement

Thomas is working with the Grand River Dam Authority on whether confidentiality or nondisclosure agreements should be included, and expects the bill to look different by the end of session. 

“We’ll work out what is good public policy and what isn’t,” Thomas said. “In the end, the public just wants government to work.” 

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