A section of the Open Records Act was amended effective November 1, 2017. The amendment provides additional guidance concerning how a public body may approach producing public records for inspection and reproduction. The amendment is found at 51 O.S. § 24.A.5 (6). There are two new provisions of this subsection to be aware of. The amended statutory section now reads:
6. A public body must provide prompt, reasonable access to its records but may establish reasonable procedures which protect the integrity and organization of its records and to prevent excessive disruptions of its essential functions. A delay in providing access to records shall 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. 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. Any public body which makes the requested records available on the Internet shall meet the obligation of providing prompt, reasonable access to its records as required by this paragraph; and
This first added sentence underlined specifies that delay of access to records shall be permissible in only two situations: (a) preparation time necessary to respond to the request, and (b) if delay is necessary to avoid excessive disruption to the public body’s essential functions.
This second added sentence underlined specifies an impermissible reason for delay in fulfilling an Open Records request for inspection or reproduction. The effect of the provision is to negate a “first in, first out” rule in responding to Open Records requests. In other words, if a public body had received a prior voluminous request that may take a substantial amount of time to respond to, but then receives a subsequent request for production of records for inspection or reproduction that could be fulfilled more quickly, then fulfilling the subsequent request in a timely manner should be considered, rather than simply filling each request based on the which request was filed first. This legislation attempts to interject a requirement that Open Record requests be evaluated at the time they are filed based on how quickly the records requested can be collected and made available, rather than simply based on a “first come, first served” approach.
Open Meetings:
The Open Meetings Act was also amended 25 O.S. § 311 effective November 1, 2017. This amendment primarily relates to public notice for public meetings being provided through internet websites. The specific language changes to this section can be found at Oklahoma Session Laws 2017, SB 403, c. 105, § 1, eff. November 1, 2017.
Under the prior version of §311 public bodies were required to publish a schedule of regular meetings by December 15th of every year, and then display notice of a regularly scheduled meeting at least 24 hours prior to a regular meeting at the principal office of the public body or the location of the meeting. The Amendment to this section now provides for notice of a regular meeting by posting on the website of the public body at least 24 hours prior to a regular meeting and at least 48 hours prior to a special meeting. The requirement of the content of the notice remains unchanged. Under the modified provision public bodies now have two options for providing notice prior to regularly scheduled meetings, but the public body must choose at least one of the following methods:
a. by posting information that includes date, time, place and agenda for the meeting in prominent public view at the principal office of the public body or at the location of the meeting if no office exists, or
b. by posting on the public body's Internet website the date, time, place and agenda for the meeting in accordance with Section 3102 of Title 74 of the Oklahoma Statutes. Additionally, the public body shall offer and consistently maintain an email distribution system for distribution of such notice of a public meeting required by this subsection, and any person may request to be included without charge, and their request shall be accepted. The emailed notice of a public meeting required by this subsection shall include in the body of the email or as an attachment to the email the date, time, place and agenda for the meeting and it shall be sent no less than twenty-four (24) hours prior to the meeting. Additionally, the public body shall make the notice of a public meeting required by this subsection available to the public in the principal office of the public body or at the location of the meeting during normal business hours at least twenty-four (24) hours prior to the meeting.
The remaining language amendments reword or relocate existing requirements for notice, but do not effect substantive changes. Those requirements include:
The required twenty-four (24) hours’ notice for Regular meetings, or the required forty-eight (48) hours’ notice for Special meetings, shall exclude Saturdays, Sundays and holidays legally declared by the State of Oklahoma. The posting or distribution of a notice of a public meeting through the website of the public body shall not preclude a public body from considering at its regularly scheduled meeting any new business. “New business,” as used herein, shall mean any matter not known about or which could not have been reasonably foreseen prior to the time of the posting.
An additional amendment to 25 O.S. §311.A.9.b was approved by the Legislature effective November 1, 2019 primarily to correct an inaccurate reference to the Statutory provision requiring use of a public body’s website for posting public meeting information as found in 74 O.S. §3106.2. (See Oklahoma Session Laws 2019, SB 740, c. 376, § 1, eff. November 1, 2019)
With this amendment to the §311, public bodies are still required to give notice of all regularly scheduled meetings by December 15th of each year. But the twenty-four (24) hour posting of the regularly scheduled meeting may be accomplished through the public body’s website or by posting at the principal place of business of the public body or the location of the meeting. Similarly, the public body’s website may also be used to publicly post notice the required forty-eight (48) hours’ notice of Special meetings. The language of the statute makes posting on the public building optional if the website posting is used, but many cities continue to post both on the website and on the public building in order to maximize notice to the public of the upcoming public meeting.
The information in this bulletin is intended solely for general informational purposes and should not be construed as or used as a substitute for legal advice or legal opinions with respect to specific situations since such advice requires an evaluation of precise factual circumstances by an attorney. OMAG does not represent or endorse any group, site or product that may be mentioned in this article. If you have questions, please contact Jeff Bryant, Associate General Counsel @ jbryant@omag.org.
