During John Browne’s six years as mayor of McAlester, city staff struggled to compile thousands of pages of documents for a former city employee’s constant open case requests.
Former city manager Randy Green was sentenced to more than four years in federal prison in 2006 for embezzlement. Green then began submitting laborious applications for open tapings as part of a “vendetta against the city,” Browne said. At times, McAlester’s town clerk said she spent half her work week responding to inquiries, which ranged from employee inquiries to the number of tickets written on specific routes. The local hospital needed extra help reviewing applications and compiling records it never retrieved, according to two city workers.
“It was purely a tool of harassment,” Browne said.
Green frequently posted on Facebook about issues he saw with the way the city was run and information he received through open records requests. Prior to his death in November from COVID-19, Green posted a successful citizen petition to audit the city and questions about the management of the local hospital.
Seeking relief from Green’s onerous demands, the City of McAlester raised its concerns with Rep. Jim Grego, R-Wilburton, who drafted Bill 3475. The wording of the bill was intended to attempt to remedy the ” excessive disruption” caused by repeated requests for open registrations. While the Oklahoma Open Records Act seeks to protect the public’s right to information, the bill would have given local records custodians broad authority to deny requests.
But Grego withdrew his bill weeks into the legislative session after freedom of information advocates and journalists raised concerns about the chilling effect the bill would have on public transparency. . The bill was one of the few introduced this legislative session targeting the State Open Archives Act. A bill giving exemptions to Land Office commissioners and a bill allowing towns to raise the price for responding to requests for records were also withdrawn from consideration this session after public backlash.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 to find a compromise on changes to the Open Archives Act of the State 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 on the Oklahoma Open Records Act’s transparency requirements aimed at protecting the public’s right to know how taxpayers’ money and other resources are being spent. Government agencies have argued that complex or large document requests disrupt their core functions and impact economic development. Oklahoma already has more than 20 specific exemptions to the Open Records Act and about 150 specific laws that keep certain types of records confidential, according to the Journalists Committee for Freedom of the Press.
At least two bills are still before the legislature this session to add even more exemptions.
“The government always wants to operate in secrecy,” said Joey Senat, a media professor at Oklahoma State University and a member of the advisory board for the nonprofit Freedom of Information Oklahoma. “The problem for the public is that with this secrecy comes corruption, incompetence and inefficiency.”
Oklahoma has a history of non-compliance with open case requests. Earlier this year, state officials determined that requests 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 Journalists Committee for Freedom of the Press because some public officials have “become increasingly reluctant” to comply with laws on open files and open meetings, according to the RCFP.
The invoices that have been drawn
In Oklahoma City, records services have received a growing wave of requests in recent 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 more than 17,000 requests this year, city officials said.
How to handle these requests — much of which come from for-profit business interests including real estate developers, lawyers and research groups — has been a challenge, Oklahoma City Clerk Amy Simpson said.
The Oklahoma City Council approved a legislative agenda last fall that included asking the state to update the fee structure for records due to high cost and increased demands, Jane said. 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 publicly available law enforcement information.
These bills were withdrawn before the start of the 2022 legislative session after people warned that the increased fees would be prohibitive.
Senate Bill 1159, which would extend open case exemptions to Land Office commissioners, was also withdrawn from consideration this year.
Bennett Abbott, general counsel for the Land Office, said the agency wanted to invest financially in state companies, but if private companies shared their information it would become a public record.
“They are not inclined to send us information because their secret information would become a public record. And we’re not inclined to invest with them if we can’t see their information,” Abbott said. “It was a problem that needed to be solved.”
Senat said he was skeptical that the details of state trade deals should be kept secret, especially since companies often obtain government benefits at the expense of taxpayers.
Sen. Julie Daniels, R-Bartlesville, who voted against several bills that would limit access to records this session, said lawmakers are struggling to distinguish between privacy and security and the right of the public to know. But blanket exemptions for large agencies handling millions of dollars go too far, she said.
“I just think it goes against transparency,” Daniels said.
Invoices still active
While the bills that open case advocates considered the most harmful were withdrawn this session, a few others are still going through the legislative process.
Senate Bill 1733 seeks to clarify and reinforce that university foundations, which handle private donations and most economic development for public universities, are completely exempt from open registration applications.
The bill’s author, Republican Pro Tem Sen. Greg Treat, said the bill was intended to combat “frivolous lawsuits” against college foundations for records. The bill passed the Senate earlier this month, though several Republicans joined Democrats in voting against the measure.
“Our foundations do lobbying, serving for endowment purposes like student recruitment,” said Sen. Julia Kirt, D-Oklahoma City. “I fear that we are essentially shielding much of the academic function from public scrutiny.”
Former University of Oklahoma General Counsel Fred Gipson sued the OU Foundation in 2018 after the school refused to provide documents regarding a large development district it had claimed from Norman. The foundation then agreed to settle the lawsuit and provide the records. OU has a long history of non-compliance with state open registration laws.
Two companion bills, House Bill 3569 and Senate Bill 1356, both seek to expand open case exemptions for the Grand River Dam Authority, the state’s electric utility. .
The Grand River Dam Authority began receiving a barrage of requests for records after two employees died last year from a dam explosion, Thomas said. The agency requested a waiver of the Open Records Act when it realized some critical infrastructure information could be exposed, he said.
Senate says the bill would make it easy for the agency to hide “incompetence 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 promised electric vehicle company Canoo an incentive package worth $300 million, but many details were withheld from the public due to a confidentiality agreement.
Thomas is working with the Grand River Dam Authority on whether to include confidentiality or nondisclosure agreements, and expects the bill to be different by the end of the session.
“We will determine what is good public policy and what is not,” Thomas said. “At the end of the day, the public just wants government to work.”