Why do government agencies consistently fail at transparency?
Oklahoma's Open Record Act needs a timeline requirement for compliance and accessible enforcement
Way back on May 19, 2022, I submitted my first Oklahoma Open Record Request. It was an open record request to Oklahoma Governor Stitt’s office pursuant to the Oklahoma Open Records Act at 51, O.S. § 24A et. seq. The Open Records Act is a series of laws designed to guarantee that the public has access to public records of governmental bodies in Oklahoma.
The Open Records Act is specific to the state of Oklahoma, whereas the Freedom of Information Act (FOIA) is specific to the federal government and all its agencies and must be responded to within 30 days. Unfortunately, the state of Oklahoma has no such timeline requirement AND under current law, there is no recourse for an individual, short of litigation, if a governmental entity denies an open records request or indefinitely declines to take action.
How Do you Submit an Open Records Request?
The method for submitting an open record request is different for the various governmental agencies in Oklahoma (and it changes regularly at some agencies, unfortunately). For example, when I submitted my open record request to the Governor’s Office in May 2022, I emailed it to:
The Governor (currently Kevin Stitt kevin.stitt@gov.ok.gov)
Governor’s General Counsel (currently Trevor S. Pemberton trevor.pemberton@gov.ok.gov)
Members of the Governor’s Staff (who no longer work for the governor)
But, after a recent phone call with the Governor’s office, as of March 14, 2024, you are directed to submit all open record requests on the Governor’s website under “Comments/Opinions.”
If you want to submit an open record request to the Oklahoma Department of Transportation, you have to contact the Office of General Counsel (405-521-4698). Currently open record requests go to Jeannette Postman (jpostman@odot.org), Ann Layton (alayton@odot.org) and Carla Bell (cbell@odot.org).
Want to submit an open record request to the Oklahoma Turnpike Authority (OTA)? You have to email the Assistant Deputy Director of Tolls, David Machamer, dmachamer@pikepass.com. Upon retirement, it is unclear who will assume the point of contact for concerned citizens.
If you want to file an open record request to the Council of Bond Oversight (COBO), as of today, you have to email David Morgan (david.morgan@treasurer.ok.gov).
The list of agencies and open record request instructions goes on and on (e.g., Oklahoma Attorney General, Oklahoma Corporation Commission, Department of Public Safety (emailed to dpsopenrecords@dps.ok.gov), Department of Health, Department of Education, Department of Human Services, etc.).
The point is, it can be confusing and intimidating for citizens to figure out how to submit an open record request to these agencies, and to know what specific words to use to ensure that they are getting the information they are looking for (and that in most cases should be easily accessible and available without the request).
In addition, the agencies sometimes play games with the public, citing “no responsive documents” to the request, or sending completely irrelevant documentation, or requiring the citizen to pay fees prior to release of documentation (or all of the above).
Tips of the Trade
For example, agencies may not send you an inclusive set of documentation. To avoid this, ask for only one or two items per request. It is easier to comply with validity if the agency cannot hide behind a laundry list of itemized documents and conveniently forget to produce a few.
Agencies may not comply with requests for email communications because state officials used personal emails to conduct business. You should always include the statement when requesting emails that….
“It is my understanding that just because a state official doesn't have a state email address doesn't mean their communications are protected from open records. If they are using personal email addresses for official business, those emails are still official state records.”
This tactic worked for me on many occasions.
Or an agency wants to scare you away from continuing to ask for documents by threatening to charge you exorbitant fees, like in this particular email I received….
“[State Agency] charges a “Research Fee” for our employee’s time in the production of requests of this size. I have been advised that on ORR 23-0119 and 23-0220 there could be a large fee for the production due to time of [State Agency] employees having to locate the information and large amount of documents to copy.
Once I have the research fee charges and total amount of documents, I will forward you an invoice for the request which will have to paid prior to release of information.
I wanted to advise you prior to proceeding with the production.”
Know your rights AND the law.
You might reply with something to the effect of…..
The Oklahoma Statute limits what a state agency can charge to produce open record requests. Theoretically, the Invoices contained in requests in 23-0119 and 23-0220 should be electronically tied to the voucher numbers so not onerous to find or compile into a PDF document - no copying required. Since there is no project number tied to any of these voucher numbers in the electronic system it would be hard for me to "guess" which ones I'm specifically looking for.
Please do let me know what the charges would be and I will discuss with the AG's office if I should proceed or not.
And they somehow miraculously produce the documents at no charge.
The reason why government agencies either ghost the citizen open record requests completely, take an exorbitantly long time to produce documents or provide non-compliant documentation is because they EXPECT you to forget
1. That you actually made a request and
2. What specific documentation you requested.
Therefore, to increase transparency in government and make it easier for citizens to be informed, we must place a time limit on agency compliance with open record requests and provide an enforcement mechanism if a governmental entity denies an open record request or indefinitely declines to take action.
More on that later, but for now, back to the story.
My Open Records Request to the Governor
Back in May of 2022, I asked for following information:
“I am requesting any and all memos, reports, emails and other forms of communications received by the governor’s office from the Oklahoma Turnpike Authority (OTA), the Oklahoma Department of Transpotation (ODOT), Secretary Gatz or POE and Associates from January 2019 to present regarding the three OTA projects listed here*:
*Note: Mileage and estimated budget as of May 18, 2022. The Outer-Loop: East-West Connector and the Southern Extension lengths and budgets were changed after the SB1610 was authored and passed the senate in March 2022, so any discussion of any of the forms of any of these three routes is requested.
I am requesting all emails both sent and received from January 2019 to present, regarding the Oklahoma ACCESS program and any and all proposed turnpike routes, including the Outer-Loop: East-West Connector, Outer-Loop: Tri-city Connector and the Southern Extension, between Governor Stitt and
a. his staff
b. The Oklahoma Turnpike Authority (OTA)
c. The Oklahoma Department of Transportation (ODOT)
d. Secretary Tim Gatz, Director of ODOT, Director of OTA, Secretary of Transportation
e. through ac. (A whole lot of other people),
plus, I requested….
All calendar meetings, subsequent minutes, meet and greets, or events, along with attendees for any event regarding the Oklahoma ACCESS program (or any former name that this program was contained under) and any and all proposed turnpike routes, including the East-West, Tri-City and Southern Extensions and any and all of their former names and/or designations.”
And guess what happened.
I NEVER HEARD ANYTHING BACK.
So, on August 2, 2022, I sent this follow up:
“It has now been over 75 days (nearly 3 months) since my original open records request. Can you please provide me an update as to the status of my request and when I should expect to receive the public information?
If it would make it easier for you, I can split down my request into several emails.”
On August 15, 2022, I received the following reply from Governor Stitt’s staff attorney:
“Thank you for your patience as we continue to work on your request.
In an effort to expedite the queries of our databases and the review of any responsive documents, we’d kindly ask that you limit/narrow your request.
Ordinarily, queries for communications are made using key terms and the names/email addresses of specific persons rather than Governor Stitt’s “staff” or entire agencies, like ODOT or the OTA. Although you asked for communications between Governor Stitt and some specific individuals, please provide an exhaustive list of names rather than agencies. Doing so will likely eliminate a lot of superfluous material from the data pull and may expedite our review.
Regarding search terms, we plan to query our databases for communications, etc. that include the following:
• “Outer-Loop: East-West Connector”
• “Outer-Loop: Tri-city Connector”
• “Southern Extension”
If this list strikes you as incomplete, please let me know.”
Yep. That list was incomplete, so I sent this list on August 16th, 2022.
“In the spirit of expediting the request, and without waiving any rights or future Open Records Act Requests, the following are additional turnpike identifiers and additional specific lists of individual names to include in your search queries.
ADDITIONAL SPECIFIC TURNPIKE SEARCH IDENTIFIERS:
ACCESS Oklahoma
South Extension
East to West Connector
Oklahoma City Outer Loop
East Oklahoma City Loop
Southwest Oklahoma City Loop
Kickapoo Extension
“Project No. SP-65” or “Project SP-65”
LIST OF NAMES IN ADDITION TO ALL THOSE CONTAINED IN THE ORIGINAL OPEN RECORDS REQUEST:
Oklahoma Transportation Committee Members: Gene McKown, Bob Peterson, Bob Coburn, James Grimsley, T.W. Shannon, Don Freymiller, David Dyson, Bobby J. Alexander, Stephen J. LaForge
Oklahoma Turnpike Authority Board Members: Gene Love, John D. Jones, Dana Weber, Todd Cone, John Titsworth, Will Berry
Oklahoma Turnpike Authority Executive Staff: Joe Echelle, Jessica Brown, Tim Gatz, David Machamer, Paul Caesar, Joni Seymour, Holly Lowe, Amanda Boulden, Marcus Williams, Julie Porter, Randy Lewis, Mary Biswell, Darian Butler, TJ Dill, Mark Kalka, Cheryl O’Rourke, Wendy Smith, Todd Gore
Oklahoma Department of Transportation Executive Staff: Dawn Sullivan, Brian Taylor, Joni Seymour, Sarah Penn, Terri Angier, Shawn Davis, Tim Tegeler, Rick Johnson, Chelley Hilmes”
Plus a ton more….
and guess what happened?
I NEVER HEARD ANYTHING BACK for over ELEVEN MONTHS.
July 28, 2023 (11 months after my August follow-up)
More than 11 months after my follow-up and 14 months after the original open record request, I received three PDF files from the Governor’s office containing 709 pages of screen shots of citizens making posts on the No More Turnpikes Facebook page, Pike OFF OTA newsletters, outlook calendar acceptances of ribbon cutting on the Kilpatrick Turnpike, ACCESS Oklahoma Press Releases, and Strategic Communications summaries of all the Oppositional “chatter,” among several other items.
Clearly, it was not exhaustive of my request and clearly it contained information I neither asked for, nor was interested in, but the “Social Listening Reports” were fun to read!
Legislation to Strengthen Openness in Government
The governor staff’s lack of timely response was way beyond a state agency just being “overburdened” with a complicated or lengthy request. If there were privileges, exemptions or objections the governor’s office could of or wanted to invoke, it was well past the time for them to do that.
In order to rectify the lack of timeline requirements with the Open Record Requests, Oklahomans for Responsible Transportation proposed a bill (HB2730) to Representative Annie Menz (House District 45) before the Spring 2023 session that requires any public body unable to complete an open records request within 10 business days to provide a written notice indicating the reason for the delay and an estimated date of availability. This measure unanimously passed the House March 7, 2024 and moves on to the Senate.
There are two other bills moving through the Legislative Session that will greatly improve governmental transparency regarding open record requests. The first one is HB2287 that would establish authority for a Public Access Counselor Unit housed in the Office of the Attorney General. Under this measure, the Attorney General’s office could review denied open record requests and take legal action when appropriate. This is important, because currently, the only recourse a citizen has to force a state agency to comply with an open record request is to sue them, which is expensive and time consuming.
The second is HB3779 that would give agencies a 10-day notice if they are being sued for denying records production requests. The intent of the bill is to encourage both the agency and requester to strengthen communication in order to find a resolution.
CONTACT YOUR REPRESENTATIVE and SENATOR TODAY and tell them you support these bills. GET INVOLVED!!!!
Attorney General Gentner Drummond recently commended state legislators for these bills strengthening openness in government.
If you are having difficulty with a state agency failing to comply with the open record request or open meeting act, please contact the Oklahoma AG’s office.
Stay tuned for additional posts on what the other open record request documents from the Governor’s Office entailed.
PIKE OFF OTA (501 c4) and Oklahomans for Responsible Transportation, Foundation (501 c3) are leading the charge in legal injunctive avenues and legislative reform and they could use your help. They are trying to dismantle a corrupt Goliath within our state and are doing a great job. Be part of the solution!
www.pikeoffota.com
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