The Norman Transcript

March 15, 2013

The search for the truth: Making an open records request

By Joy Hampton
The Norman Transcript

NORMAN — On Wednesday, City Attorney Jeff Bryant refused to release a redacted version of the mayor’s Feb. 19 memo to The Transcript. At that time, Bryant said the memo is an extension of the executive session. But the executive session of Feb. 12 had long since closed, and there is no authority in the law to extend executive sessions indefinitely through memo, email or otherwise.

“When public bodies finish an executive session, they vote to end the executive session and re-enter the regular session,” said Dr. Joey Senat, associate professor at OSU School of Media and Strategic Communications. “So how can they have a continuation of an executive session after the meeting is adjourned? The answer is that they can’t. A public body can’t claim that an executive session continues on and on.”

Senat writes an open government blog for FOI Oklahoma.

“I deal with these issues every day,” Senat said. “Open government is my research area.”

On Thursday, Bryant again refused to release the memo, saying it constitutes client-attorney confidentiality. But the memo is issued by the mayor to the city council. Any legal opinions in the memo are limited and would not fall into privileged areas. Releasing the memo would not limit the ability of the city to negotiate with a union or to purchase land, for example. There is no compelling reason to keep the memo confidential.

Bryant was not willing to redact, or black out allegedly protected portions of the memo, to release information that should be subject to public scrutiny. Title 51 Section 24 of the law allows that “Any reasonably segregable portion of a record containing exempt material shall be provided after deletion of the exempt portions.”

Bryant said the document should be confidential, not because of content but because of the process.

“Our perspective is we have a statute that says memorialization of records of what transpires in meetings closed to the public are not subject to the open records act,” Bryant said.

“The law only exempts the minutes of the executive session,” Senat said. “Minutes should be a summary of what was discussed. Did he (Bryant) take the minutes?”

According to the Oklahoma Open Meetings Act, “Minutes must be an official summary of the proceedings clearly showing those members present and absent and what they considered,” Senat said.

The opening sentence of the memo appears to stake a claim for memorialization or record status.

“This memorandum is to memorialize the results of the Norman City Council’s discussion,” it reads. But merely claiming something is a memorialization does not make it so.

“How can there be results?” Senat said. “They’re not supposed to make decisions in executive session.”

Minutes are to be kept sealed in a separate file, Senat said. They are not passed out via memo. Following an explanation of possible percentage salary increases, new information is presented that was not discussed in executive session, further belying the claim that the memo is any kind of official record of executive session discussions.

A public body “may” (not “shall”) keep personnel records confidential if “disclosure would constitute a clearly unwarranted invasion of personal privacy,” according to Title 51 Section 24.

Nothing in the memo is information that is unfavorable to the city manager or that is not already or will not soon become a matter of public record.

 

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