Open Records Act amendment intended to end first-come, first-served response to requests

Gov. Mary Fallin's policy of responding to records requests on a first-come, first-served basis should end under a recent amendment to the state Open Records Act. Any delay in providing access to records must "be limited solely to the time required for preparing the requested documents and the avoidance of excessive disruptions of the public body's essential functions," under the amendment.

"In no event may production of a current request for records be unreasonably delayed until after completion of a prior records request that will take substantially longer than the current request."

But don't be surprised if government officials use the terms "excessive," "unreasonable" and "substantial" in the amendment as loopholes to delay access.

Fallin signed the amendment -- Senate Bill 191 -- on May 3. It takes effect Nov. 1.

The Open Records Act already required government bodies to provide "prompt, reasonable access" to records and allowed them to "establish reasonable procedures which protect the integrity and organization of its records and to prevent excessive disruptions of its essential functions." (Okla. Stat. tit. 51, § 24A.5(6))

A 1999 attorney general opinion defined "prompt, reasonable access" as “only the time to locate and compile the records.” (1999 OK AG 58, ¶ 15; A 2016 amendment to the Open Records Act allows agencies to meet the prompt, reasonable access requirement by placing requested records on the Internet, § 24A.5(6))

Fallin's office, however, instituted a first-come, first-served policy in which records requests were placed in a queue and completed one at a time in the order in which they were received. Then-Attorney General Scott Pruitt also adopted the policy.

Under this policy, a request that could be quickly filled would instead sit unanswered for months while officials responded to a previous request.

First-Come, First-Served Policy Led to Lawsuits Over Delayed Access

Four open records lawsuits were filed against the governor because of the procedure:

•  In late 2013, Fallin’s former Tulsa office director, Wendy Gregory, sued to obtain her personnel and employment records. Gregory's attorney received the records about eight months after requesting them.  Gregory dropped the Open Records Act lawsuit in late 2014 after Fallin’s office agreed to pay $125,000 to settle a wrongful-termination lawsuit. (Gregory v. Fallin, No. CV-2013-2280 (Okla. Cty. Dist. Ct. Oct. 29, 2013))
• In 2014, the mothers of two Moore schoolchildren killed in the May tornadoes sued Fallin on behalf of an advocacy group leading an initiative to put storm shelters in public schools. The records request to her office had gone unfilled for nearly three months. The lawsuit was dismissed in June 2014 after the advocacy organization received the records. (Legg v. Fallin, No. CV-2014-163 (Okla. Cty. Dist. Ct. Feb. 3, 2014). See also Take Shelter v. Fallin, No. CV-2014-374 (Okla. Cty. Dist. Ct. Mar. 4, 2014))
• In 2015 – nearly one year after the Tulsa World’s original request – an Oklahoma County judge ordered Fallin and the state Department of Public Safety to release documents related to a botched execution. However, Judge Patricia G. Parrish left open the question of whether the governor’s first-come, first-served procedure for completing records requests violates the Open Records Act’s requirement of “prompt, reasonable access.” The case is pending. (Branstetter v. Fallin, No. CV-2014-2372 (Okla. Cty. Dist. Ct. Dec. 22, 2014))
• In late 2015, the ACLU of Oklahoma sued Fallin on behalf of The Oklahoma Observer and a citizens advocacy group working for nursing home reform. Their separate records requests had gone unfilled by the governor’s office for more than 16 months. The ACLU attorneys argued that in addition to the first-come, first-served process, Fallin’s office also unnecessarily delays records access by rescanning digital documents into non-searchable images, having nearly all documents reviewed by legal staff regardless of whether those records might contain exempted information, failing to segregate confidential records during normal record keeping, and involving gubernatorial staff in records requests received by other public agencies and “thus diverting staff time from the Governor’s duty of compliance,” and “reviewing documents not just for claims of legal privilege, but also for political sensitivity or for other non-legal reasons.” Fallin's attorneys conceded only that records were “reviewed by legal staff, and are scanned into a reviewable format.” The case is pending. (A Perfect Cause 2013 Inc. v. Fallin, No. CV-2015-2098 (Okla. Cty. Dist. Ct. Nov. 9, 2015)).

FOI Oklahoma Inc. recognized Fallin in 2014 and 2015 with its Black Hole Award for the official who had most thwarted the public's right to know.

That recognition went to Pruitt this year after an Oklahoman County judge criticized his office for its “abject failure” to abide by the Open Records Act. The Center for Democracy, supported by the ACLU of Oklahoma, sued Pruitt in early February for emails requested more than two years earlier.

In ordering the AG's Office to release the emails, Judge Aletia Haynes Timmons emphasized, “Prompt and reasonable access to those records has not been given and the Open Records Act is being frustrated in policy and purpose."

Step in the Right Direction

Even with some of its terminology, the amendment -- sponsored by Sen. Roger Thompson, R-Okemah, and then-Rep. David Brumbaugh, R-Broken Arrow -- is a much-needed attempt to end the first-come, first-served policy introduced by the Fallin administration.

SB191 had passed the state Senate 41-1 in early March and the House 91-0 in late April.

Thank you to Mark Thomas of the Oklahoma Press Association for his work in shepherding this legislation to success.

Joey Senat, Ph.D. Associate Professor 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.

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