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Oklahoma Legislature Chooses Government Secrecy Over the Rights of the People to Access Investigative Reports

Senator Kay Floyd, Rep. Townley, Rep. Provenzano author and pass bill to help public bodies keep investigative reports of public misconduct secret.

Oklahoma Legislature Chooses Government Secrecy Over the Rights of the People to Access Investigative Reports

Recently the Oklahoma Legislature, led by Senator Kay Floyd (D-OKC), Representative Tammy Townley (R-Ardmore), and Representative Melissa Provenzano (D-Tulsa), authored SB 970 to help the government hide investigative reports from the citizens. SB 970 easily passed the House by a vote of 84-4 and easily passed the Senate by a vote of 43-0. To understand the impact of this bill, we must cover a little history first.

History Review

In 2013, Owasso City Manager, Rodney Ray, came under fire for alleged inappropriate conduct following a February 2013 Owasso Police Department traffic stop. Owasso Vice Mayor and Councilman Chris Kelley was stopped and investigated for suspicion of DUI. He was not arrested and instead was allowed to go home. Ray was accused of deleting or causing the deletion of video recordings of the traffic stop of Kelley, among other things. A Tulsa, Oklahoma-based law firm was retained by the Owasso City Council to conduct an investigation into the allegations.

On June 21, 2013, a 224-page “Report of Investigation” was submitted to the City of Owasso. The report, known as the “Fortney Report,” was read by the City Council behind closed doors in an executive session. It identified alleged criminal actions and violations of City policy by Ray. Owasso kept the Fortney Report secret and did not release it to the public.

After several city council meetings, Ray and Owasso came to an agreement wherein Ray would resign and receive substantial severance pay. One of the Owasso City Council members, Patrick Ross, strongly objected to this expenditure of public funds. He believed that Ray should not receive any severance pay. Ross used the Oklahoma Open Records Act to request the Fortney Report. Owasso refused to release the report saying it was a confidential personnel record.

In August 2013, Ross sued the City of Owasso. He lost at the trial court but obtained some relief on appeal from the Oklahoma Court of Civil Appeals. See Ross v. City of Owasso, 2017 OK CIV APP 4. The Court of Civil Appeals did not reach the ultimate decision in this first of two appeals, instead sending it back for further information from the City of Owasso – whether or not they would use their discretion to release the Fortney Report. In December 2016, the City of Owasso again refused to release the Fortney Report. This led to the second appeal of this case.

The law governing this situation is found in the Oklahoma Open Records Act at Title 51, O.S. § 24A.7(A)(1). This statute used to say “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.” The key word here is “may.” This appears to give the public body some discretion in deciding on what to release and what not to release.

Judge Thornbrugh, writing for the Court of Civil Appeals, held that allowing a public body unlimited discretion would “inherently undermine” the “clear public purpose” of the Open Records Act – which is to vest the people of Oklahoma with the inherent right to know and be fully informed about their government. Judge Thornbrugh recognized the fallacy of allowing the government sole decision-making authority; he wrote: “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.” Ross v. City of Owasso, 2020 OK CIV APP 66, at ¶ 13.

After Ross II was decided, Owasso was forced to release the Fortney Report and it is available here if you want to read it.

History in Plain English

The government may keep personnel records secret if they choose to. However, allowing them to be the sole deciders of what should be released and what should not be released is not good for the citizens. Therefore, the courts get the ultimate say and can review records that the government has chosen to keep secret. If the Court agrees, then it stays secret; if the court disagrees, then it must be released to the public. This is a commonsense check and balance. Here Owasso chose to keep the Fortney Report a secret. The Court reviewed that decision and overruled them, forcing the report to be made public.

Back to SB 970

As one might imagine, the cities and other public bodies did not like the Courts telling them what to do. They are used to being able to do as they please and not worrying about what is best for transparency or the citizens. So they had to fix it. Here is where Senator Floyd and Representatives Townley and Provenzano come in. They wrote SB 970 and got it passed. SB 970 was a legislative overturning of published Court of Civil Appeals Decisions. SB 970 added 8 words to Title 51, O.S. § 24A.7(A)

Before SB 970:

“A.  A public body may keep personnel records confidential:”

After SB 970:

“A.  At the sole discretion of the public body, a public body may keep personnel records confidential:”

Clever huh? Floyd, Townley, and Provenzano added 8 words that took away all judicial review of the government’s decision-making on when to release personnel records. They changed the statute to create a scenario exactly like that which Judge Thornbrugh thoughtfully warned us about in his opinion in Ross II:

Judge Thornbrugh in Ross v. Owasso, 2020 OK CIV APP 66

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.

Response from Legislators

Anytime we publish an article that is critical of a Senator or State Representative, we give them advance notice and an opportunity to respond to our critical review. On Monday November 7th we emailed Senator Floyd and asked her the following questions:

1. Where did you first get the idea for SB 970? If someone or some entity first brought it up to you, who were those individuals or entities?
2. Who’s idea was it to add the words “At the sole discretion of the public body” to the statute?
3. Were you aware that by adding the words “At the sole discretion of the public body….” this bill gave public bodies the sole decision-making authority to turn over investigative reports or not – removing previous judicial review of their decisions?
4. Were you aware of the Ross cases when carrying this bill through the Senate?
5. Do you believe that public bodies should be the sole decision-makers on whether or not to release investigative reports (such as the Fortney Report at issue in the Ross cases), or to the contrary, do you believe it is best to have judicial oversight of this decision-making?
6. If you do believe in judicial review of these decisions, will you pledge to introduce legislation in the upcoming session to fix this problem created by SB 970?

Then we emailed Representatives Provenzano and Townley and asked them the following questions:

1. What individuals or entities were behind the push for SB 970?
2. Did either of you speak to anyone associated with the Oklahoma Municipal League in reference to this bill? If so, did they voice their support of the bill?
3. Whose idea was it to add the words “At the sole discretion of the public body” to the statute?
4. Were you aware that by adding the words “At the sole discretion of the public body….” this bill gave public bodies the sole decision-making authority to turn over investigative reports or not – removing previous judicial review of their decisions?
5. Were you aware of the Ross cases when carrying this bill through the House?
6. Do you believe that public bodies should be the sole decision-makers on whether or not to release investigative reports (such as the Fortney Report at issue in the Ross cases), or to the contrary, do you believe it is best to have judicial oversight of this decision-making?
7. If you do believe in judicial review of these decisions, will you pledge to introduce legislation in the upcoming session to fix this problem created by SB 970?

Representative Tammy Townley nor Representative Melissa Provenzano responded to our inquiry or gave any comment.

Senator Kay Floyd did not respond to us directly. Instead, she had the General Counsel for the Oklahoma Municipal League call us. The Oklahoma Municipal League’s (OML) Mission Statement, according to their website, is “The collective voice of local government at the state and national levels, the OML strengthens municipalities and empowers municipal officials by providing education, resources, and a platform for collaboration. ”

We find it quite informative that Senator Floyd chose not to speak on behalf of the bill she “authored” and instead had a lobbyist group call us. This confirms what we suspected, the lobbying group for the government (OML) was behind this bill. We have grown accustomed to finding OML behind most bills that operate to take away the rights of the citizens and allow the government to operate in secrecy more freely. SB 970 is apparently no different.

OML admitted that they were behind the bill. Their claimed motivations for the bill were: one, to protect “domestic violence victims” by limiting public access to water bill names and addresses of citizens; and two, to protect government employees who were “suffering from personal issues” having investigation reports (presumably about job performance while working for the government) released to the public. The OML, acknowledged awareness of the Ross cases, but specifically denied that this legislation was aimed at those cases.

FOIBible.com thanks the General Counsel from OML for the call. We have worked with him several times over the years and found him to be a true professional and a great advocate. We disagree with him on this bill but appreciate his candor and professionalism.

Want to know how your Representative voted? Click here.

Want to know how your Senator voted? Click here.

The only votes against the measure were Gann, T. Hardin, S. Roberts, and R. West. Everyone else either didn’t vote (17) or voted in favor of SB 970.

Call your local representatives and let them know you are not pleased with them supporting a bill that favors government secrecy over the peoples inherent right to know how their government is being operated.

Find your legislatures here.

Senator Kay Floyd

Sen. Kay Floyd (D-Oklahoma City)

Representative Tammy Townley

Rep. Tammy Townley (R-Ardmore)

Representative Melissa Provenzano

Rep. Melissa Provenzano (D-Tulsa)