Oklahoma City Public School District and Northern Oklahoma College officials are reviewing their procedures/policies with an eye toward removing bans on the public using “writing instruments while viewing” records.
Rather than take notes, the public must request copies of the individual documents after reviewing them, according to the policies/procedures.
But a blanket ban on the public using a pen or pencil to take notes when reviewing documents violates a 2006 Attorney General Opinion.
Fortunately, OKCPS and NOC officials said their respective bans aren’t enforced. A state Education Department official said the same about that agency’s policy last week.
Thank You for Bringing This to Our Attention
Officials at all three government bodies seemed unaware of the bans until I asked about them last week.
“We believe in being a transparent agency, and want to work with the public by making sure they have easy access to information, and the capability to document open records they request,” OKCPS spokesman Mark Myers wrote in an email Friday.
Myers said that because it’s a district procedure, not policy, “a quick turnaround” by the district’s attorneys should be possible.
At Northern Oklahoma College, a revision to the Open Records Fee Schedule will be brought to the NOC Board of Regents at its meeting Sept. 21, wrote Sheri Snyder, vice president of development & community relations, on Monday.
“In the interim, we will also email our liaison at the Attorney General’s to review as well,” Snyder added.
At the state Department of Education, Assistant General Counsel Lori Murphy last week said not removing the “complete prohibition on writing instruments from the more recent versions of the Open Records policy” was an oversight.
The agency is planning to update its Open Records policy “and that provision is due for a change,” Murphy wrote.
She noted that a revised policy might ban writing instruments when “someone requests access to a record that exists as a unique hard copy, and provide for copying such a record by other means.”
“The agency does hold some very old, paper school records in off-site storage that date back many decades—this is the only scenario we can think of where such a restriction may still apply,” she added.
The Open Records Act allows each government agency to “establish reasonable procedures that protect the integrity and organization of its records and to prevent excessive disruptions of its essential functions.” (Okla. Stat. tit. 51, § 24A.5(5))
What the Attorney General Said
The 2006 AG Opinion noted that having an agency employee involved when records are inspected or copied would be “reasonable and proper.”
“Supervision of inspection or copying of records becomes particularly crucial when old, fragile paper records are involved, or where the records are in an electronic format that is susceptible to modification or deletion,” according to the opinion.
But 2006 OK AG 35 explained:
Nowhere in the Act does the law prohibit requesters of records from making copies of such records themselves, nor does it require that copies of the requested documents must be made by an employee of the public body. For years, companies or individuals have made manual notes and sometimes even microfilm of information in public records, such as recorded land title instruments.
A digital camera or an electronic scanner is a copying device, as are a pen and paper or a photocopy machine.
The use by a requesting person of own copying equipment is not prohibited by the Act and must be permitted by the public body as long as such person’s copying process does not unreasonably disrupt the essential functions of the public body or result in defacing or loss of such records.
So, to sum up, if an agency says you can’t use a pen or pencil to take notes of a public record, point to 2006 OK AG 35 and ask if the document you’re inspecting is the only copy. If it’s not a rare document, then you’re entitled to take your own notes.
And, of course, you may use your smartphone or a portable scanning device to make copies.
Joey Senat, Ph.D.
OSU School of Media & Strategic Communications
Mass Communication Law in Oklahoma
The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, its board of directors or the commentator’s employer. Differing interpretations of open government law and policy are welcome.