Editor's note: this article has been updated to include comments from an OTA spokesperson which had not been previously provided.
Attorneys in the Open Meeting Act lawsuit against the Oklahoma Turnpike Authority have accused the agency of fraud and deliberately tampering with evidence, a motion for judgment to the court indicated Thursday morning.
Stan Ward filed the lawsuit after residents alleged the agency violated the open meeting law because it failed to sufficiently inform residents of its plans to build two turnpikes in Norman.
According to a forensic expert, OTA modified its January and February meeting agendas after the agency received notice of the lawsuit and as recently as Oct. 22, exhibits to the court indicated.
Co-counsel Richard Labarthe contends OTA previously provided date stamped “agendas that spanned 50 pages for each of the meetings” as evidence of the meetings. The agency also included the same pages provided to the court when it challenged depositions, but those pages were absent in the original agendas, Labarthe argued.
“Defendant’s contention that 50-page-long agendas were posted on its website prior to the January and February meetings is simply a fraud that they have foisted on this Court,” Labarthe wrote. “In actuality, the agendas that were posted on the OTA’s website prior to the meeting consisted of only five pages.”
It is the second time Labarthe accused OTA of changing its agendas. In a motion to depose OTA employees Oct. 19, he included court exhibits alleging OTA had amended both meeting agendas.
The Jan. 25 meeting was created on Jan. 18 by OTA employee Todd Gore and amended on Feb. 13 while the Feb. 22 meeting created on Feb. 13 by OTA employee Jenny Johnson was amended Feb. 23, court exhibits indicated.
At the time, OTA said it merely uploaded documents to reflect signatures to prove the meeting occurred, The Transcript reported.
OTA officials did not explain to the publication why those same signatures did not appear in the December 2021 meeting. According to Labarthe, none of the 2021 meetings bear those signatures.
But Labarthe alleges that more than 40 pages were added to the agenda after the meeting, and cited OTA Deputy Director Joe Echelle’s testimony to the court.
“The OTA’s willful conduct consists of modifying the agendas and republishing after the meeting occurred,” Labarthe wrote in the motion. “The OTA staff clearly intended to, and did, alter the documents to sabotage Plaintiff’s OMA challenge.”
Transcripts of the depositions were not available to the public as of Thursday.
OTA spokeswoman Brenda Perry Clark issued a statement calling the allegations “false and factually inaccurate.”
“Plaintiffs’ own sources for their reckless and inaccurate allegations show the Oklahoma Turnpike Authority posted full and complete agendas and related materials which included hundreds of pages associated with its agendas and agenda items prior to its meetings as required by law,” the statement reads. “These allegations will be proven to be completely without merit.”
IT expert volunteers
Cameron Smith, an information technology expert and Army intelligence officer, told the court he saw the article about the amended agenda allegations in the Transcript and volunteered to help Ward. Smith, who also worked for the Air Force, is a contractor for the Nuclear Regulatory Commission.
After learning that two Norman residents listed in the lawsuit downloaded the five-page agendas, Smith said he searched for the original agendas using the “Wayback Machine,” a web tool that captures original internet pages before the pages are modified or taken down.
Pikepass.com now shows 47 pages, “which purports to be the agenda” for the January meeting, and 52 pages for the February agenda, his statement to the court reads.
“Each of these differs tremendously from what the Wayback Machine revealed, namely that each of these was but a five-page document as posted by the OTA on its website,” according to Smith’s statement.
The IT expert also found OTA re-uploaded the agendas sometime between Jan. 25 and Oct. 20 without altering the name of the document, his statement to the court indicated.
“Mr. Smith also indicates that OTA intentionally assigned the same file name to the enlarged file as it had previously given to the smaller files on its site prior to the two respective meetings, presumably to make it appear to the casual observer that no change had taken place,” Labarthe wrote to the court.
Because the re-uploads took place after OTA had been served notice of the lawsuit and after the agency hired legal counsel, Labarthe contends the action constitutes willful spoilage of evidence and the court should rule in his clients’ favor.
Labarthe asked the court that judgment be granted in his favor.
It was not known if the documents added later were supporting documents for those agendas, known as a meeting packet. Packets contain further details such as copies of resolutions and ordinances, contracts and other materials.
Open meetings act expert Joey Senat, associate professor of mass communications for Oklahoma State University, said even if the pages added to the agenda were attached as a packet of supporting documents, the packet is not addressed in the law.
OTA cannot “come back and change the language of the agenda after the meeting,” he said.
“(The law’s) only concern is with the language of the agenda used on the agenda,” Senat said. “Adding documents to a packet afterward doesn’t change the original language.”
A packet is no substitute for an unclear agenda, he said.
“I don’t think a packet of documents in the first place can be used as an excuse or as justification for vague language on an agenda,” Senat said.
The open meeting act states that agendas must be posted so that persons of ordinary intelligence and education can understand it.
“It’s all about what’s on the agenda,” he said. “The statute is not concerned with what documents are with an agenda.”