Mitsi Andrews was convinced that she witnessed a crime in Stillwater, but local police told her they didn't know enough about the law to investigate, and the district attorney's office wouldn't talk to her about it.
If it were any other misdemeanor — possession of marijuana or driving under the influence, for example — Andrews could have counted on police and the district attorney to look into the matter. But getting authorities to enforce the state's open records and meeting acts is often a futile effort, as Andrews discovered.
Willfully violating the state's openness laws is punishable by a fine of up to $500 and a year in jail. But police and prosecutors rarely pursue charges, leaving private citizens to file lawsuits if they think a public official is wrongfully denying them access.
“There is a law on the books, but there is no route for the average taxpayer to hold anyone accountable for illegal actions,” Andrews said. “You can go the civil litigation route, but you have to commit to thousands of dollars and years of litigation.”
Although the Oklahoma attorney general's office is responsible for advising state agencies on openness issues and writing opinions when lawmakers have questions about them, local district attorneys are tasked with filing criminal charges.
In Andrews' case, she was denied records by Stillwater Public Schools that she believed were clearly open under state law.
“I first went to the police department and they said they weren't sure how to handle it and suggested I file a civil case or go to the DA's office,” Andrews said. “Then I went to the DA's office and they said they don't talk to anyone but attorneys and told me to go back to the police.”
Police eventually told her they didn't know enough about the open records law to investigate.
Andrews finally got some of the records after going to Freedom of Information Oklahoma Inc. for help. The nonprofit advocates for open government and put pressure on the schools to release the information.
Lindel Hutson, president of FOI Oklahoma, said enforcement of the law shouldn't fall to private organizations or members of the media.
“The district attorneys are charged with enforcing this, but the number of times we hear of situations where the DAs are not doing anything are too numerous,” Hutson said.
Hutson said prosecutors often say they are too busy prosecuting violent crime to look into open records violations. But he said that excuse doesn't hold up. If police and prosecutors can investigate and prosecute disturbing the peace calls along with dozens of other misdemeanors, they can prosecute openness law violators.
In some cases, police and prosecutors are the ones suspected of violating the law. In others, officials are denying access. Hutson said this
Some states have established open records offices that can serve as ombudsmen, mediating disputes and ensuring citizens have somewhere to go when local officials aren't listening. Others, such as Texas, empower their state attorney general to overrule local officials.
Hutson and Andrews said they would both like to see legislators consider such options in Oklahoma.
“Open meetings and open records certainly isn't as sexy as prosecuting a meth bust, but it's important, and it's also the law,” Hutson said. “If they are not going to prosecute and try to uphold the law, then there needs to be some alternative.”