Norman city officials violated the Open Records Act by charging to search for records requested in the public interest and by failing to provide "prompt, reasonable access" to documents, two activists allege in a lawsuit filed Wednesday. Casey Holcomb and Darcie Woodson ask that a Cleveland County district judge order the release of requested records, require "strict proof" when officials claim exemptions apply and stop the city from charging illegal search fees.

On the last point, the case is an opportunity to challenge the contention by some local officials - including some in Norman City Hall -- that a 1995 state Court of Civil Appeals decision allows them to charge a search fee when release of the records would benefit the public.

The plaintiffs also ask that the judge notify the district attorney of city officials who have refused to comply with the Open Records Act. Violating the statute is a misdemeanor punishable by up to a $500 fine and one year in the county jail. (OKLA. STAT. tit. 25, § 314)

The case was assigned to District Judge Jeff Virgin.

Holcomb is an environmental policy advocate and freelance journalist who has written for the Red Dirt Report. He requested city staff email correspondence with prominent oil industry representatives during the time that Norman was updating its local oil and gas regulations.

Holcomb explained in an email on Tuesday that he was "working with local advocates pressing city council members to adopt greater setback distances from homes and water sources." He added:

At one point, the City Clerk informed me that my request could be fulfilled at a cost of more than $500.00 in search fees. I was also told my requests would be subject to additional fees because the city attorney’s would need to review and redact some documents prior to release. Other times, I was simply told releasing the emails would compromise the City Attorney’s attorney-client privilege.

The lawsuit notes that attorney-client privilege was claimed even though the emails were between city attorney and "outside attorneys."

In contrast to Norman officials, Holcomb said, Stillwater city officials responded promptly "with no questions asked" to identical requests for records.

"From those, I received 300+ pages of emails in .pdf format. No fees were charged," he said.

According to the lawsuit, Norman officials dropped the search fee for emails after receiving a letter from Holcomb's attorney.

The other plaintiff, Woodson, is an independent author and political activist who has lobbied for improvements to the Norman animal shelter. Norman officials refused to provide records to her unless she agreed to pay a search fee, according to the lawsuit.

The lawsuit contends that both Woodson and Holcomb requested records acting as journalists investigating "whether City of Norman elected officials and employees 'are honestly, faithfully, and competently performing their duties as public servants.'"

Search Fees

The Open Records Act permits government agencies to charge a "reasonable fee to recover the direct cost of record search ... if the request: a. is solely for commercial purpose, or b. would clearly cause excessive disruption of the essential functions of the public body." (OKLA. STAT. tit. 51, § 24A.5(3))

Then the statute states:

In no case, 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. (Id.)

However, Norman city officials have claimed -- as have other local officials -- that a 1995 Oklahoma Court of Civil Appeals decision allows them to charge a search fee even if the request is in the public interest.

The Court of Civil Appeals had quoted with apparent approval the trial judge's conclusion that

whether or not there's any public purpose or whether it’s a matter of a private vendetta ... I think what the legislature was perhaps trying to say was if there's going to be some sort of substantial disruption of business of the public agency then a fee is not improper. (McVarish v. New Horizons Cmty. Counseling and Mental Health Servs. Inc., 1995 OK CIV APP 145, ¶ 1)

Specifically, the local officials grasp at one particular line in the appellate court's opinion:

We observe that the public interest is as equally well served by public agencies performing their essential services without burdensome, disruptive records requests as in providing release of information to taxpayers. (Id. ¶ 3)

Ultimately, the Court of Civil Appeals decided the case by agreeing with the trial judge's rejection of the requester’s public interest claim.

But more importantly, the appellate court's apparent interpretation that a “substantial disruption” could outweigh a valid public interest has not been mentioned in subsequent attorney general opinions regarding search fees.

Instead, a 1996 opinion by then-Attorney General Drew Edmondson described the statutory language as a “legislative warning,” saying:

Should a public body choose to charge a search fee it should proceed with caution in view of the legislative warning set forth in the Act which provides in pertinent part: ‘In no case shall a search fee be charged when the release of said documents 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.’ (1996 OK AG 26, ¶ 13 (quoting OKLA. STAT. tit. 51, § 24A.5(3))

Using absolute terms of his own in a 1999 opinion, Edmondson said, "Further, a search fee cannot be charged when release of public records is in the public interest, such as release to the news media, scholars, authors or taxpayers seeking to determine if government affairs are being properly performed." (1999 OK AG 55, ¶ 15)

Legislative intent also had been "quite clear" to then-Attorney General Robert H. Henry in 1988 when he said public bodies could not charge a search fee to reporters investigating government operations.

"[T]here is no situation under which a member of the news media may be lawfully charged a search fee by a public body," he said. "51 O.S. 24A.5(3) … is quite clear on that point when it decrees 'in no case' may such search fees be assessed in such circumstances." (1988 OK AG 35, ¶ 6 (citing OKLA. STAT. tit. 51, § 24A.5(3))

More recently, current Attorney General Scott Pruitt also was adamant that “a search fee cannot be charged to the news media if the record is used for a news purpose.” (2012 OK AG 22, ¶ 11 n. 4 (citing Okla. Stat. tit. 51, § 24A.5(3))

In 2010, then-Broken Arrow Public Schools Superintendent Gary Gerber claimed that McVarish allowed him to charge a $90 search fee for copies of the district’s itemized legal bills.

An FOI Oklahoma board member at the time explained that the McVarish court had “clearly overstepped its judicial authority” with its interpretation that a search fee could be charged when a request made in the public interest would result in a "substantial disruption of business of the public agency."

“Clearly, § 24A.5 says no such thing,” said Doug Wilson, who as a private attorney won open records lawsuits against county assessors.

The Open Records Act means what it states: A search fee cannot be charged when the release of the records would be in the public interest.

In other words, a search fee can be charged only when the request is commercially motivated or when a request made for another private interest "would clearly cause excessive disruption of the essential functions of the public body."

 

Joey Senat, Ph.D. Associate Professor OSU School of Media & Strategic Communications

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.