Open records chat transcript, Feb. 27, 2013

NewsOK reporter Bryan Dean chatted with readers Wednesday about open records and public access in Oklahoma.

BY BRYAN DEAN bdean@opubco.com Modified: February 27, 2013 at 3:01 pm •  Published: February 27, 2013
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NewsOK reporter Bryan Dean chatted with readers Wednesday about open records and public access in Oklahoma.

Join Bryan’s open record Q&A’s on the fourth Wednesday of every month at 2:30 p.m. and submit your questions about legislation and public access in Oklahoma. 

NewsOK 2:02 p.m. Hey everyone. Bryan will be logging on at 2:30 p.m. to take your open record questions. You can start submitting them now.
Bryan Dean 2:29 p.m. OK, we're going to begin. I look forward to all your questions.
David 2:30 p.m. Bryan, why doesn't the pro-openess crowd support David Prater's investigation of the parole board?
Bryan Dean 2:31 p.m. I think a lot of open government advocates are very encouraged by Prater's investigation. There is an obvious lack of enforcement of open records and meeting laws. Any enforcement is encouraging. It would be nice to see similar concern for the law when it isn't a subject near and dear to Mr. Prater.
Bryan Dean 2:32 p.m. In the past, Mr. Prater has received FOI Oklahoma's Black Hole Award for refusing to release birth dates of county employees. I've spoken with him before about the lack of enforcement, and his reason for not pressing charges more often was that they were too busy prosuecuting murderers and other violent offenders.
Bryan Dean 2:33 p.m. That is a common refrain, but it rings rather hollow when they have plenty of resources to prosecute other misdemeanors.
Bryan Dean 2:33 p.m. We'll follow that with a similar question.
Diana 2:33 p.m. So many law enforcement agencies refuse to release information in the state and district attorneys refuse to prosecute. Do you have solution to this problem? What can be done?
Bryan Dean 2:34 p.m. The obvious solution would be for police and district attorneys to enforce the law like any other. Willfully violating either the open records or open meeting acts is a misdemeanor punishable by up to a year in jail and a $500 fine.
Bryan Dean 2:36 p.m. That doesn't seem to be happening, though. There are a lot of reasons. The most common offenders of these laws are public officials, and sometimes the district attorneys or police themselves.
Bryan Dean 2:37 p.m. One thing that has helped in other states is to create a state open records commission or ombudsman. Essentially, you create an appeal system so people can get relief without having to go through the lengthy and costly court process.
Bryan Dean 2:37 p.m. If such an office is truly independent and set up well, it can cut through a lot of the red tape.
Bryan Dean 2:38 p.m. That leads us to this question...
Silas 2:38 p.m. When a public agency won't release a public document, what recourse do people have?
Bryan Dean 2:38 p.m. Theoretically, you have both a criminal and civil recourse.
Bryan Dean 2:39 p.m. If someone is violating the law, you can make a complaint to local police or the district attorney. However, as we have been discussing, that doesn't usually go very far.
Bryan Dean 2:39 p.m. The other recourse is to sue.
Bryan Dean 2:39 p.m. Under the open records act, if you win an open records lawsuit, the agency that denied the records would have to pay your court costs.
Bryan Dean 2:40 p.m. But that is obviously a gamble. And it is a lengthy process.
David 2:40 p.m. You guys are big! You're the Oklahoman. Can't you just sue them when they don't release stuff?
Bryan Dean 2:41 p.m. Yes. That is always an option.
Bryan Dean 2:41 p.m. But again, it's a lengthy process. And it can be costly.
Bryan Dean 2:41 p.m. Also, when you sue, you risk losing and creating a bad precedent.
Bryan Dean 2:41 p.m. This happened when The Oklahoman stood firm on keeping employee birth dates open and lost a state supreme court decision.
Bryan Dean 2:42 p.m. Sometimes another option is simply for us to write a story.
Bryan Dean 2:42 p.m. Often the public scrutiny over such a decision can be enough to sway a public official to do the right thing.
Bryan Dean 2:43 p.m. A good recent example happened in Stillwater.
Bryan Dean 2:44 p.m. A student reporter from OSU's college newspaper requested the dates of employement for a worker in the Payne County District Attorney 's office. The DA refused. This is clearly open record. The DA acknowledged as much but told the student the paper would have to sue him if they really wanted it.
Bryan Dean 2:44 p.m. We called the next day, and he changed his mind.
Kathryn 2:45 p.m. Who besides news organizations is concerned or should be concerned about open records?
Bryan Dean 2:45 p.m. Everyone
Bryan Dean 2:46 p.m. We all pay taxes. And not just income takes. Every time you buy a loaf of bread at the grocery store or a hamburger at a restaurant, you pay sales tax. These are our records. We've already paid for them.
Bryan Dean 2:46 p.m. And they affect all of us in some way. When you are talking about open records, it encompasses everything from court records to property records to city council agendas.
Bryan Dean 2:47 p.m. Want to know whether any of your neighbors are convicted sex offenders? It's open record.
Jim 2:47 p.m. How about the state ethics commission. Why don't they do more about this subject?
Bryan Dean 2:47 p.m. The ethics commission is tasked with overseeing elections, but they aren't a law enforcement organization. They aren't empowered under the law to enforce open records. It is left to local law enforcement and district attorneys.
Bryan Dean 2:48 p.m. And many people believe that is a problem.
Bryan Dean 2:49 p.m. State Rep. Jason Murphy, R-Guthrie, has suggested the state attorney general could be given the authority to either hear appeals or enforce the law. He hasn't drafted a bill to that effect yet, but has said he remains open to it.
Paul 2:49 p.m. Ethics Commission covers lobbyists and campaign reporting; Election Board does elections.
Bryan Dean 2:49 p.m. Paul is correct. I was referring to campaign donations, not elections.
Craig 2:49 p.m. Open Records is based upon the idea of the public knowing how and where their dollars are spent. Since a tax deduction is a use (by withholding taxes) of public funds, shouldn't all financial records, including the Oklahoman be open, as far it relates to tax deductions.
Bryan Dean 2:50 p.m. This is more of a philosophical question.
Bryan Dean 2:51 p.m. I'm more concerned with the direct expenditure of taxpayer dollars. Who gets what tax deductions is open. Are you suggesting anyone should be able to request the tax returns of any business or individual?
Bryan Dean 2:52 p.m. You would certianly get into some privacy concerns. How people spend their money can be a deeply personal area.
Bryan Dean 2:52 p.m. There is also an obvious divide between public and private entitites.
Bryan Dean 2:53 p.m. You can choose to not buy a newspaper or read NewsOK.com. You can choose to eat at a restaurant or not. You don't get to choose whether you pay taxes. That money becomes public and thus the records should remain public.
Jim 2:54 p.m. Do you really think a political office like Attorney General would enforce the rules against his own party? Color me skeptical.
Bryan Dean 2:54 p.m. That is why others have suggested a independent ombudsman would be better.
Bryan Dean 2:55 p.m. It gets back to the earlier question about DA David Prater investigating the parole board. Is that investigation political? Maybe. He hasn't been nearly as concerned when other public entities have violated open meeting laws. But any enforcement is welcome right now.
Bryan Dean 2:57 p.m. The Attorney General is already tasked with writing legal opinions which are binding in the absence of court precendent. Just recently, AG Scott Pruit released an opinion that mug photos taken by law enforcement at the time of arrest are open record.
Bryan Dean 2:58 p.m. So it wouldn't be too much of a stretch to put open records enforcement under the AG. But you always run the risk of enforcement becoming political when it is put in the hands of elected officials.
Craig 2:58 p.m. I'm not advocating for this, but the concept of the public knowing how their tax dollars are spent would logically follow the deductability of certain business expenses. That is, the deduction is a direct decrease (use) of tax revenue, therefore shouldn't the deduction become public record. This is very open for SEC registered corporations.
Paul 2:58 p.m. Craig, there's a big difference between tax credits, tax deductions, exclusions and incentive programs like Quality Jobs. A lot of the incentives to businesses are in fact open--just go to the state's Open Books site to learn more. https://www.ok.gov/okaa/tax/app/search.php
Bryan Dean 2:59 p.m. Publicly traded corporations have an obligation to their shareholders just as public officials do to taxpayers.
Bryan Dean 2:59 p.m. That doesn't apply to an individual or a privately-owned business.
Jim 2:59 p.m. Why would Prater's prosecution be political? I don't see the connection to the parole board...
Bryan Dean 2:59 p.m. Because they are paroling people he prosecuted.
Bryan Dean 3:00 p.m. I'm not saying the investigation is political. I don't cover the parole board and have not written any of the stories on this.
Bryan Dean 3:01 p.m. But some on the parole board have suggested it is. And certainly he has an interest in the parole board's decisions.
Guest 3:01 p.m. Why do print journalist devote more time to sunshine than broadcast journos? Also in your reporting are there any good examples of govs that follow the letter of the (open records) law?
Bryan Dean 3:02 p.m. There are some broadcast journalists that do try to hihglight openness issues. So I wouldn't p;aint with too broad a brush. But we in the print media have a luxury of space and time that broadcast journalists don't always get.
Bryan Dean 3:02 p.m. These are compliocated issues. They aren't very visual, and they can be difficult to explain in the short time a TV news program has to devote to any one story.
Bryan Dean 3:03 p.m. I do have several friends in broadcast media that pay attention to these issues and try to hold public officials accountable.
JoeySenat 3:03 p.m. Rep. Murphey's HB 1450 would give Oklahomans the right to appeal record denials to the attorney general, who would be given the power to order the document released immediately. I think it is scheduled to be heard in committee Thursday.
Bryan Dean 3:04 p.m. Thank, you, Joey. I wasn't sure if he had proposed a bill for this session.
Bryan Dean 3:04 p.m. Rep. Murphy is also the house sponsor of a bill that would subject the legislature to open meeting requirements for the first time. They are currently exempt. State Sen. Dabid Holt, R-Oklahoma City, is the senate sponsor of that bill.
Craig 3:05 p.m. Again, I'm not advocating for this, just pointing out the logic. I do have a concern with how open records are used and the effect of privacy on the individual. The opinion of mug shots being public does not sit well wih me. Many people are arrested and some are never charged or convicted, yet the stigma of an arrest photo can be devestating.
Bryan Dean 3:05 p.m. There is always a balance to be struck between openness and privacy. And this cuts to its very heart.
Bryan Dean 3:06 p.m. In the case of arrests, there are two reasons to make these records open. First, the community has a right to know the details when a crime is a committed. But there is a second reason you might not immediately think of.
Bryan Dean 3:07 p.m. If the police didn't tell you who they arrested, we'd look a lot more like an authoritarian regime. Secret detentions are a scary proposition.
Bryan Dean 3:07 p.m. It becomes a right of the accused as well as the community.
Bryan Dean 3:08 p.m. The solution as I see it is to make all the records open. If someone is arrested, the government should make it easy for people to follow up and see if that person was ever charged or convicted.
Bryan Dean 3:09 p.m. Some court documents are available online now at www.oscn.net and www.odcr.com, but I'd like to see more easy access.
JoeySenat 3:09 p.m. For those who want to read the AG opinion on mugshots, it's at http://www.oag.state.ok.us/oagweb.nsf/a04cdf96201b5ef3862572b4007b9753/e414e1c73ea658cc86257ad300576ff3/$FILE/2012-22.pdf
Craig 3:09 p.m. I agree a commission should be established to make recommendations on the records which are open, under what circumstances and the ability for enforcement.
Bryan Dean 3:09 p.m. That isn't exactly what we have been talking about.
Bryan Dean 3:10 p.m. The open records act already says which records are open.
Bryan Dean 3:10 p.m. An open records ombudsman or commission would merely be an appellate option. If someone denies records, they could step in if the law is clear.
Bryan Dean 3:11 p.m. There would still be legal gray areas that would likely go to the courts.
Bryan Dean 3:11 p.m. Incidentally, FOI Oklahoma will have speakers from states that have some of these commissions and such at its Sunshine Week conference coming up next month.
Bryan Dean 3:12 p.m. Full disclosure, I am a former president and current board member for FOI Oklahoma.
Bryan Dean 3:13 p.m. That conference is coming up March 9 at OU's College of Journalism and Mass Communication.
JoeySenat 3:13 p.m. Information on the Sunshine Week Conference is at http://www.foioklahoma.org/calendar.html
Dell 3:13 p.m. Do reporters have special access that other people don't get? Why don't they use it?
Bryan Dean 3:13 p.m. Not really, Dell. Under the law, anyone has the same power to request records as a journalist.
Bryan Dean 3:14 p.m. Journalists often get a better respone simply because public officials know they might be written about if they try something funny.
Bryan Dean 3:14 p.m. The only exemption for media pertains to search fees.
Bryan Dean 3:15 p.m. The law allows a public body to charge the actual cost of reproducing records, 25 cents per page for printed copies and the cost of a blank CD or videotape or whatever for electronic or video records.
Bryan Dean 3:16 p.m. Public bodies can charge search fees if the request is commercial, but the law specifically says such fees can't be charged to members of the media or taxpayers checking up on their public servants.
Craig 3:17 p.m. Agreed, just trying to balance personal priacy with right to know. I assume there will be various opinions on where the line is drawn. Obviously I'm for open records of agancies, but would seek to protect the privacy of individuals.
Bryan Dean 3:17 p.m. Craig, that balance is definitely the main concern of legislators. And people will have honest disagreements about where that line should be drawn.
JoeySenat 3:18 p.m. But the search fee exemption isn't just for reporters. "“In no case,” the statute states, “shall a search fee be charged when the release of records is in the public interest, including, but not limited to, release to the news media, scholars, authors and taxpayers seeking to determine whether those entrusted with the affairs of the government are honestly, faithfully, and competently performing their duties as public servants.”
Bryan Dean 3:18 p.m. I encourage everyone to read the open records law themselves. It is very readable and it has privacy protections built-in via exemptions and exceptions.
Bryan Dean 3:20 p.m. Here is a quick link to the Open Records Act. Just scroll down a bit and you can read each part.

http://www.oscn.net/applications/OCISWeb/index.asp?level=1&ftdb=STOKST51#OklahomaOpenRecordsAct
David 3:20 p.m. Are police reports withheld for rape victims from reporters?
Bryan Dean 3:21 p.m. Police have to release incident reports for rapes, but most, if not all, departments I have dealt with black out the names of sex crime victims.
Bryan Dean 3:22 p.m. Again, the public certainly has the right to know if a violent crime is committed in their neighborhood, but that is balanced with privacy concerns.
Bryan Dean 3:22 p.m. Oklahoma City police also redact the names of all juvenile victims and witnesses.
Bryan Dean 3:23 p.m. And for what it is worth, responsible media organizations usually have a policy of not identifying rape victims.
Bryan Dean 3:24 p.m. The Oklahoman has such a policy. I was about to say all media organizations, but I'm not sure some fringe media like, say, TMZ, have the same ethical standards as a major newspaper or TV station.
Jim 3:24 p.m. what about printing addresses where crimes happen? Sometimes you guys do it, sometimes you don't.
Bryan Dean 3:24 p.m. We print the address if we get it.
Bryan Dean 3:25 p.m. Oklahoma City only gives the 100 block of domestic assaults.
Bryan Dean 3:25 p.m. They might do the same in the case of a rape, if they feel it would identify the victim.
Bryan Dean 3:26 p.m. The law requires police identify the general location of a crime, but it doesn't say they have to give the exact address.
Bryan Dean 3:26 p.m. Well, folks, it's been an hour. I think we are going to wrap this up.
Bryan Dean 3:28 p.m. Thank you so much for all the questions. We will be back with another chat next month. I plan to have a guest or two to discuss Sunshine Week, which is March 10-16.


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