By Barbara Buratti, Esq.
Among the most fundamental and important principles safeguarding our freedom is the public’s right, and expectation, to be informed about what every level of our government does. The Wikileaks controversy ignited debate concerning the extent of that right, at least on the national level.
In our state, we have two laws designed to protect the public’s right to know. The Oklahoma Open Meetings Act requires meetings of a public body be open and accessible to the public. The Oklahoma Open Records Act requires the records of public bodies to be open and accessible to the public. Together, these Acts, commonly called “sunshine laws,” serve to encourage the public to be informed about, participate in and understand the governmental proceedings in our state.
Underlying Oklahoma’s Open Meeting Act, signed into law on June 1, 1977, is the public policy “to encourage and facilitate an informed citizenry’s understanding of the governmental processes and governmental problems.” The Oklahoma Supreme Court’s decision in Oklahoma Association of Municipal Attorneys v. State (1978) explains why open meetings are important. “If an informed citizenry is to meaningfully participate in government or at least understand why government acts affecting their daily lives are taken, the process of decision making as well as the end results must be conducted in full view of the governed.”
The Open Meeting Act gives all Oklahoma citizens access to what their government is doing. With several exceptions stated in the law, the Open Meeting Act applies to all governing bodies of municipalities, boards of county commissioners, boards of public and higher education, all other political subdivisions that receive or administer public funds or maintain public property, as well as subcommittees of these public bodies.
The Oklahoma Open Meeting Act applies to gatherings of a majority of the members of a public body for the purpose of conducting the business of the body, whether they are in-person meetings or, in certain circumstances, videoconferences or teleconferences. Meetings must be held at a convenient time in an open public place.
By December 15 of each year, all public bodies are required to establish a regular meeting schedule for the next calendar year showing the date, time and place of the regularly scheduled meetings. Depending on the type of public body, notice of the calendar of regular meetings is to be provided to the Secretary of State, the county clerk or the municipal clerk. If necessary, an emergency meeting may be held, giving the public as much notice as possible.
An agenda must also be posted 24 hours before a regularly scheduled meeting and 48 hours before a special meeting. The agenda should explain clearly what is going to be discussed so members of the public can decide if they want to attend. Public bodies may only discuss items on the agenda at meetings.
Anyone can attend a meeting of a public body, with no requirement to register before attending. The public body must give you a reasonable opportunity to speak at some point during the proceedings. You also have the right to audio- or videotape any part of an open meeting.
Public bodies must keep minutes of all meetings. The minutes, which are to be open to and available to the public, must summarize the proceedings showing those members present and absent, all matters considered and all actions taken by the public body.
Certain limited issues can be handled in closed executive sessions. Oklahoma’s Open Meeting Act provides for closed sessions concerning personnel issues, discussing the purchase or appraisal of real property, matters pertaining to pending litigation, expulsion or suspension of students and a few others.
The Open Records Act, the other side of the openness coin, is designed to guarantee the public’s access to records of governmental bodies. The introduction explains, “As the Oklahoma Constitution recognizes and guarantees, all political power is inherent in the people. Thus, it is the public policy of the State of Oklahoma that the people are vested with the inherent right to know and be fully informed about their government.” The purpose of the Act is “to ensure and facilitate the public’s right of access to and review of government records so they may efficiently and intelligently exercise their inherent political power.”
The Open Records Act in many respects parallels the Open Meetings Act. It applies to all branches of government at all state, county and local levels and all organizations that are supported in whole or in part by public funds, or entrusted with the expenditure of public funds, or administering or operating public property. Questions of doubt as to disclosure of public records are to be resolved in favor of disclosure.
The Open Records Act applies to all documents, including but not limited to “any book, paper, photograph, microfilm, data files created by or used with computer software, computer tape, disk, record, sound recording, film recording, video record or other material regardless of physical form or characteristic, created by, received by, under the authority of, or coming into the custody, control or possession of public officials, public bodies, or their representatives in connection with the transaction of public business, the expenditure of public funds or the administering of public property.”
There are several exceptions. The Open Records Act does not require the disclosure of communications among members of the Legislature, whether in written or electronic form. In addition, the Act lists a number of exemptions, including certain personnel records, individual student records, certain law enforcement records, specifications for competitive bids before they are opened or published, appraisals relating to the sale or acquisition of real estate by a public body before the sale or acquisition, business plans and market research by the Oklahoma Department of Commerce, conditions of donations to libraries and museums, crop and livestock reports provided by farmers, litigation files, and several others.
Anyone may request public records – the law does not require the requester to state why he or she wants the records, and there is no restriction on the use of records obtained. Fees may only be charged for the cost of copying the records. The charge for making copies cannot exceed $0.25 per page for standard sized records, and cannot exceed $1.00 per page for certified copies.
The penalty for a public official convicted of willfully violating Oklahoma’s Open Records Act is a fine and/or imprisonment. In addition, a person denied access to records of a public body may bring a civil suit asking the court to order production of requested records. The successful party in such a suit may recover reasonable attorney fees. The penalty for violating Oklahoma’s Open Meeting Act ranges from a $500 fine to imprisonment.
Government exists to serve the people. Oklahoma’s Open Meeting and Open Records Acts provide the tools to assure transparency in government and to hold elected officials accountable.
Barbara Buratti is an attorney with Wilson Cain & Acquaviva in Oklahoma City. She may be reached at email@example.com.