Guest Blog (Joey Senat): Open government laws need vigorous enforcement

Joey Senat is Associate Professor in the School of Media and Strategic Communications at Oklahoma State University and a member of the Board of FOI Oklahoma. He maintains the FOI Oklahoma blog where an earlier version of this post appeared.

On paper, Oklahoma’s open government laws purport to ensure and facilitate our inherent right to know and be fully informed about our government so we may intelligently exercise our inherent political power.

But putting our Open Records and Meeting laws into action is too often a frustrating ordeal for Oklahomans, with blatant violations leaving them feeling helpless and angry.

One response would be to file a lawsuit, a time-consuming process too expensive for most folks. Another would be to file a criminal complaint and hope the police (too many of whom are among the worst open-records violators) and district attorney will treat the problem seriously. Don’t count on it.

A violation of either the Open Meeting or Open Records Act is a misdemeanor punishable by up to one year in the county jail and a fine of up to $500. But district attorneys by-and-large won’t prosecute their fellow elected officials or law enforcement colleagues for disobeying our open government laws regardless of how blatant the violation.

For example, the Lone Grove City Council last May fired the city manager and hired a temporary replacement even though neither action was on the meeting agenda, which listed only a performance review of the city manager.

But the council won’t face prosecution for clearly violating the Open Meeting Act because a district attorney said no collusion occurred among the councilors.

Collusion, however, is not required for a violation of the Open Meeting Act to be considered willful and, therefore, to be prosecuted. Willfulness does not require that the councilors had acted in bad faith, maliciously or with the intent to violate the law. Even a vote taken in “good faith” could be found to be a willful violation, our Court of Civil Appeals has said.

“If willful is narrowly interpreted, if actions taken in violation of the Act could not be set aside unless done in bad faith, maliciously, obstinately, with a premeditated evil design and intent to do wrong, then the public would be left helpless to enforce the Act most of the time and public bodies could go merrily along, in good faith, ignoring the Act,” the court explained.

The Oklahoma Supreme Court agreed, saying, “Willfulness does not require a showing of bad faith, malice, or wantonness, but rather, encompasses conscious, purposeful violations of the law or blatant or deliberate disregard of the law by those who know, or should know the requirements of the Act.”

The Lone Grove City Council should have known its agenda must “identify all items of business to be transacted” at the meeting and that any omission that “has the effect of actually deceiving or misleading the public regarding the scope of matters to be taken up at the meeting” would be a “willful” violation.

This situation exemplifies why prosecution of open government violations should be put in the hands of someone besides district attorneys.

Oklahoma could empower an independent commission or agency to arbitrate disputes over access, investigate complaints of violations, order compliance, and prosecute violations. Models for such a system can be found in Connecticut, Florida, Oregon, Pennsylvania and New York.

On Saturday, the head of New York’s Committee on Open Government will offer possible solutions during FOI Oklahoma’s annual Sunshine Week Conference in Oklahoma City (click here for program information and registration). Bob Freeman will explain how to create a state agency or other entity that Oklahomans could go to for real help when public officials wrongly withhold records or restrict access to open meetings.

Because without vigorous enforcement, our Court of Appeals noted, these laudable statutes are reduced to “mere words.” And that serves only to undermine public trust and confidence in government.

The opinions stated above are not necessarily those of OK Policy, its staff, or its board. This blog is a venue to help promote the discussion of ideas from various points of view, and we invite your comments and contributions. To see our guidelines for blog submissions, click here.