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Government has some discretion to release personnel files, but that discretion is not unlimited – contrary to what Owasso argued here. The Court has the final say on if personnel files should be released by balancing the public’s right to know v. the government’s reason for the denial.
ROSS v. CITY OF OWASSO
2020 OK CIV APP 66
Case Number: 117321
Mandate Issued: 12/30/2020
THE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION IV
Cite as: 2020 OK CIV APP 66, __ P.3d __
PATRICK D. ROSS, an individual, Plaintiff/Appellant,
THE CITY OF OWASSO, a municipal corporation, Defendant/Appellee.
APPEAL FROM THE DISTRICT COURT OF
TULSA COUNTY, OKLAHOMA
HONORABLE MARY FITZGERALD, TRIAL JUDGE
REVERSED AND REMANDED WITH INSTRUCTIONS
Christopher L. Camp, CAMP LAW FIRM, Tulsa, Oklahoma and
D. Mitchell Garrett, Jr., GARRETT LAW CENTER, PLLC, Tulsa, Oklahoma, for Plaintiff/Appellant
David L. Weatherford, BIRMINGHAM, MORLEY, WEATHERFORD & PRIORE, P.A., Tulsa, Oklahoma, for Defendant/Appellee
¶1 Patrick D. Ross appeals a decision of the district court finding that, pursuant to the Open Records Act, the City of Owasso properly refused disclosure of a record known as the “Fortney Report.” On review, we reverse the judgment of the district court in this matter, and hold that City failed to meet its burden under the Act to show why the Report should not be made available. We remand this matter with instructions to the district court to order City to comply with Ross’s open record request regarding the “Fortney Report.”
¶2 The matter initially arose from alleged misconduct by the Owasso City Manager. City commissioned a private attorney, Guy Fortney, to investigate these allegations. Fortney produced a report (Report or Fortney Report) allegedly identifying possibly criminal actions and violations of City policy by the City Manager. After approximately three meetings of the Owasso City Council, the Council approved a settlement with the City Manager under which the City Manager would resign and be provided with substantial severance pay. Plaintiff Ross, a resident of the City, objected to this settlement and use of public funds on the grounds that the City Manager’s contract explicitly required the forfeiture of any right to severance pay if the City Manager’s employment was severed for cause. Ross made a request for the Report through the Open Records Act (ORA). The request was apparently denied by an assistant city clerk on the grounds that the report was confidential.
¶3 In August 2013, Ross sued City alleging violations of the Open Meetings Act and a violation of the ORA. City countersued, alleging that Ross had breached confidentiality requirements and attorney-client privilege by filing his petition. In October 2015, the parties jointly dismissed all claims with prejudice, excepting only the issue of City’s refusal to disclose the Report pursuant to the ORA. In June 2016, the district court granted summary judgment to City, finding that the Report was “not subject to disclosure.” Ross appealed.
¶4 This Court found, in Ross v. City of Owasso, 2017 OK CIV APP 4, 389 P.3d 3969 (Ross I) that “the Report is a ‘personnel record’” and that “release of the Report is neither mandatory nor prohibited under the facts presented.” We concluded that a public body has discretion on whether to keep such a report confidential pursuant to § 24A.7(A). We noted that the subsequent inquiry would be whether the City Council abused the discretion granted in § 24A.7(A) by refusing to release the Report. We could not answer that question in Ross I, however, because it was undisputed that the decision to release or withhold the record must be made by the City Council and it appeared that an assistant city clerk, not the City Council, had made a decision not to release. We remanded this matter with instructions that the City Council properly respond to Ross’s ORA request, at which point any “decision to withhold or release the Report will be ripe for examination by the courts.”
¶5 In December 2016, the Owasso City Council formally decided to deny release of the report. In February 2017, City filed a “Motion to Enter Judgment Pursuant to Mandate of Appellate Courts.” This motion essentially alleged that the only action required by our opinion in Ross I was for the City Council to make a decision whether to release the report, and, as City had now made a decision, “there is no issue remaining to be decided as the City Council has acted within their discretion.”1 In June 2018, the district court issued a “Judgment Pursuant to Mandate” stating that the City Council acted within its discretion. Ross now appeals that decision.
STANDARD OF REVIEW
¶6 Because of the City’s unusual procedural posture, the standard of review here requires some analysis. Our decision in Ross I clearly did not hold that the City Council would be within its discretion as a matter of law if it refused to release the report, but held that that issue of discretion would not be ripe for examination until the City Council had actually made a decision to release or withhold as required by the ORA. Merrill v. Oklahoma Tax Com’n, 1992 OK 53, ¶ 7, 831 P.2d 634, notes that a suit involving disclosure pursuant to the ORA constitutes a “suit for declaratory and injunctive relief” and the standard of review applicable to the ruling is whether it is clearly contrary to the weight of the evidence. Nonetheless, the City did not file a motion for declaratory judgment, but filed a “Motion to Enter Judgment Pursuant to Mandate of Appellate Courts” requesting judgment pursuant to a “mandate” this Court did not make. We will treat City’s motion as one for declaratory judgment that it acted within its discretion in refusing to release the report.
¶7 Pursuant to 12 O.S.2011 § 1654, declaratory judgments are “reviewable in the same manner as other judgments.” Okla. City Zoological Tr. v. State ex rel. Pub. Emp. Relations Bd., 2007 OK 21, ¶ 5, 158 P.3d 461; Lockett v. Evans, 2014 OK 34, ¶ 3, 330 P.3d 488. “A suit for declaratory judgment pursuant to § 1651 is neither strictly legal nor equitable, but assumes the nature of the controversy at issue.” Macy v. Okla. City School Dist. No. 89, 1998 OK 58, ¶ 11, 961 P.2d 804; see also Carpenter v. Carpenter, 1982 OK 38, ¶ 17, 645 P.2d 476 (whether declaratory judgment is legal or equitable depends on “essential nature” of case). Thus, determining the proper standard of review in a declaratory judgment action requires that we evaluate the nature of the case generally considering the relief sought, the pleadings filed, and the parties’ rights and remedies. See Wickham v. Simpler, 1946 OK 357, ¶ 13, 180 P.2d 171.
¶8 In this case, two possible rationales for the trial court’s decision are evident: either the court believed that City’s decision to withhold the report could not be challenged as a matter of law, or it found that City acted within its discretion based on the facts. The first rationale requires a de novo standard of review; the second appears to require an abuse of discretion standard of review.
THE BURDEN UNDER THE ORA
¶9 The purpose of the ORA 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. 51 O.S. § 24(A)(2). “Because of the strong public policy allowing public access to governmental records, we must construe the Act’s provisions to allow access unless an exception clearly applies, and the burden is on the public agency seeking to deny access to show a record should not be made available.” Oklahoma Ass’n of Broadcasters, Inc. v. City of Norman, Norman Police Dep’t, 2016 OK 119, ¶ 15, 390 P.3d 689, 694; Citizens Against Taxpayer Abuse, Inc. v. City of Oklahoma City, 2003 OK 65, ¶ 12, 73 P.3d 871. Unless a record falls within a statutorily-prescribed exemption in the Act, the record must be made available for public inspection. The public body urging an exemption has the burden to establish the applicability of such exemption. Citizens Against Taxpayer Abuse, Inc. v. City of Oklahoma City, 2003 OK 65, ¶ 12, 73 P.3d 87, citing Merrill v. Oklahoma Tax Comm’n, 1992 OK 53, ¶ 8, 831 P.2d 634.
¶10 Title 51 O.S. § 24A.7(A)(1) states that, “A public body may keep personnel records confidential . . . [w]hich relate to internal personnel investigations including examination and selection material for employment, hiring, appointment, promotion, demotion, discipline, or resignation.” Section 24A.7(A)(2) also allows records to be withheld “where disclosure would constitute a clearly unwarranted invasion of personal privacy.” Subsection 24A.7(B) also states that “all personnel records not specifically falling within the exceptions provided in subsection A of this section shall be available for public inspection and copying.”
A. The Phrase “May be Released” Indicates Discretion
¶11 A public body may keep personnel records confidential. The word “may” is generally used in a statute to indicate either a discretionary choice, or that an act is neither mandatory nor prohibited.2 Words will be given their common meaning unless a contrary legislative intent plainly appears. 25 O.S.2011 § 1; Welch v. Crow, 2009 OK 20, ¶ 10, 206 P.3d 599. Section 24A.7 appears to create a class of records that shall be released (records that do not fall within the exceptions of subsection A) and a class of records that may be released (records that do fall within the exceptions of subsection A). City’s interpretation of § 24A.7(A)(1) is that the statutory phrase, “A public body maykeep personnel records confidential,” indicates that a public body has unlimited discretion to refuse to release personnel files mentioned in § 24A.7(A)(1).3 This interpretation appears contrary to the majority of legislative and Supreme Court statements regarding the ORA.
¶12 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.” 51 O.S. § 24A.2. “The Legislature’s emphatic message to government agencies is, unless otherwise specifically excluded, the public must have prompt and reasonable access to records.” Oklahoma Ass’n of Broadcasters, 2016 OK 119, ¶ 15, citing Fabian & Associates, P.C. v. State ex rel. Dep’t of Pub. Safety, 2004 OK 67, ¶¶ 11-12, 100 P.3d 703; City of Lawton v. Moore, 1993 OK 168, ¶¶ 5–6, 868 P.2d 690, 704–05. “Because of the strong public policy allowing public access to governmental records, we must construe the Act’s provisions to allow access unless an exception clearly applies, and the burden is on the public agency seeking to deny access to show a record should not be made available.” Citizens Against Taxpayer Abuse, 2003 OK 65, ¶ 12.
¶13 This clear public purpose would be inherently undermined if a public body has unlimited discretion in deciding which personnel files to release. A public body would be free to release personnel files that may support its political actions or bring credit to its operation, while suppressing those that may prove embarrassing or unsupportive of the public body and its management of personnel and taxpayers’ money. This is the antithesis of the public’s “inherent right to know and be fully informed about their government” from which the ORA springs. We find the City’s position that it has unlimited discretion to refuse to release personnel files incompatible with the purposes and intent of the ORA.
B. The Exercise of Discretion under § 24A.7(A)(1)
¶14 Having established that City’s discretion in the matter is limited and subject to review, the next question is whether City abused its discretion in refusing to release the report. The breadth of the discretion afforded a public body in deciding whether to release records pursuant to § 24A.7(A)(1) does not appear to have been extensively discussed in the existing case law. Case law has, however, discussed decisions not to release pursuant to the closely related § 24A.7(A)(2) (“Where disclosure would constitute a clearly unwarranted invasion of personal privacy”), and these cases establish a balancing test that is instructive.
¶15 Oklahoma Pub. Employees Ass’n v. State ex rel. Oklahoma Office of Pers. Mgmt., 2011 OK 68, ¶ 27, 267 P.3d 838, notes that, in connection with § 24A.7(A)(2), courts recognize that once a protectable privacy interest is established, proper application of the Open Records Act requires a “comparative weighing of the antagonistic interests“–“the privacy interest of the public servant versus the policy of openness for the public good” (emphasis added). Oklahoma Pub. Employees Assn. noted that “the United States Supreme Court has determined that such statutory language requires the implementation of a balancing test where the individual’s right to privacy is weighed against the public’s right to know.” We find it entirely rational that release of records under § 24A.7(A)(1) should be subject to a similar balancing test between the need of the public to see the workings of government in furtherance of the purposes of the Act and the interests of the state or public body in keeping certain information confidential.
C. City’s Interest in Keeping the Records Secret
¶16 City did little in its briefing to the trial court to show any public or govern-mental interest in withholding the report. Its arguments are mostly contained in its “Second Supplemental Brief in Support of Motion to Enter Judgment Pursuant to Mandate of Appellate Courts.” First, it argued that a grand jury had found the City Manager’s actions were “not criminal,” and this provided a basis to refuse disclosure. Apparently, City argues that if the behavior of a public official is not criminal, but, in the words of the grand jury, merely “unethical/questionable,” this creates a public policy interest in City keeping any investigation of the behavior secret, and indicates the lack of a public “need to know” under the Act. We flatly disagree. The existence of unethical/ questionable behavior by a city manager appears to be a central public question if City’s decision to pay severance is questioned.
¶17 City next argues that the City Council had the power to pass a resolution declaring the report “confidential” and this resolution determines the status of the report for ORA purposes. Summarized, City’s argument is that a decision to release is discretionary; the standard of review for a discretionary decision is “any rational basis;” and a resolution by the City Council establishes a “rational basis” as a matter of law. If this were a correct interpretation of the Act, the established case law examining a public body’s discretion under the related § 24A.7(A)(2) would be entirely unnecessary. A public body’s discretionary authority to withhold or release pursuant to § 24A.7(A)(2) springs from the same sentence as the discretionary authority pursuant to § 24A.7(A)(1)–“A public body may keep personnel records confidential.” If a decision by the public body not to release inherently provides a “rational basis” for that decision, review is not available under either section. And yet, the Supreme Court has previously reviewed decisions under § 24A.7(A)(2) for abuse of discretion. It would not do so if the public body’s use of its discretion was immune from review. Further, as Oklahoma Ass’n of Broadcasters noted, “The burden is on the public agency seeking to deny access to show a record should not be made available.” A public agency does not meet this burden by simply making a decision.
¶18 City’s third argument is that at least part of the report has already been made public on a local website, and hence any ORA request is moot. Unofficial, unverifiable, and allegedly partial disclosure is not a substitute for a verified, official disclosure via the ORA. In total, City did little to establish any public or governmental interest in keeping the Report secret.
D. The Public Interest in Disclosure
¶19 Ross argues that the report is a proper subject of ORA disclosure. As Oklahoma Pub. Employees Ass’n notes, the policy of disclosure is purposed to serve the public interest and not to satisfy the public’s curiosity. “The purpose of openness in government is not fostered by disclosure of information about private citizens that is accumulated in various government files but reveals little or nothing about an agency’s own conduct.” In Oklahoma Pub. Employees Ass’n, The Oklahoman and The Tulsa World sought disclosure of public employees’ dates of birth in aid of a general purpose of investigation. The Court held that the public’s general interest either in employee birth dates or employee identification numbers was minimal.
¶20 The situation here is the opposite. Ross’s request is not for general investigative or journalism purposes. Nor is it apparently filed to satisfy personal curiosity on an issue that the citizens of Owasso would generally have no interest in. Instead, it involves a central matter of good governance–the allegation that substantial public funds were improperly expended paying a severance package to the City Manager because the City Manager’s contract explicitly required the forfeiture of any right to severance pay if his employment was severed for cause. The contents of the Report appear central to the question of whether City Manager’s employment should have been severed for cause.
E. The Balancing Test
¶21 The balance in this case clearly favors disclosure. The ORA request is evidently not one motivated by mere curiosity into a personnel matter, or some general desire to broadly monitor the workings of government. It involves a high profile employee in an official position, not routine day-to-day personnel employment matters. It involves specific questions of why the City Manager, who was accused of misconduct, was granted a substantial severance package, paid for by the taxpayers of Owasso, instead of being fired. In short it is a “core” Open Records matter going directly to questions of the legitimacy of the Mayor and City Council’s good governance and use of funds, and the citizens’ inherent political power to inquire into these matters. City identifies no valid privacy, state, or public interests in withholding the Report. As such, we find that it should be disclosed pursuant to the ORA.
¶22 We reverse the judgment of the district court in this matter, and hold that City has not met its burden of showing that it had a valid basis under the Act to show why the Report should not be made available. We remand this matter with instructions to the district court to order City to comply with Ross’s Open Record request regarding the Fortney Report.
¶23 REVERSED AND REMANDED WITH INSTRUCTIONS.
REIF, S.J. (sitting by designation), and WISEMAN, C.J., concur.
1 This could be described as a “broad” interpretation of our decision in Ross I that the final question of “whether the City Council abused the discretion granted in 24A.7(A) by refusing to release the Report” would be “ripe for examination by the courts” after the City Council properly responded to Ross’s ORA request.
2 See e.g., Smith v. City of Stillwater, 2014 OK 42, n.10, 328 P.3d 1192(citing Howard v. Zimmer, Inc., 2013 OK 17, n. 24, 299 P.3d 463); State ex rel. Oklahoma Bar Ass’n v. Mothershed, 2011 OK 84, ¶ 62, 264 P.3d 1197; Woods Development Co. v. Meurer Abstract & Title Co., 1985 OK 106, ¶ 11, 712 P.2d 30 (stating that “shall” is ordinarily interpreted as implying a command or mandate and “may” generally denotes permissive or discretional authority); MLC Mortgage Corp. v. Sun America Mortgage Co., 2009 OK 37, n. 17, 212 P.3d 1199; see also, Osprey LLC v. Kelly–Moore Paint Co., Inc., 1999 OK 50, ¶ 14, 984 P.2d 194; Shea v. Shea, 1975 OK 90, ¶ 10, 537 P.2d 417; Thibault v. Garcia, 2017 OK CIV APP 36, ¶ 12, 398 P.3d 331(By changing the language of Section 2004(I) from “may” back to “shall,” it appears the Legislature intended to eliminate discretion).
3 “[P]ersonnel records [which] relate to internal personnel investigations including examination and selection material for employment, hiring, appointment, promotion, demotion, discipline, or resignation.”