What’s the point of the Open Records Act? The purpose of the ORA is to ensure and facilitate the public’s right of access to, and review of, government records so they may efficiently and intelligently exercise their inherent political power. 51 O.S. §24(A)(2). The burden is on the public agency seeking to deny access to show a record should not be made available.
Unless a record falls within a statutorily prescribed exemption in the ORA, the record must be made available for public inspection. The public body urging an exemption has the burden to establish the applicability of such exemption.
Under the ORA, there is an exemption that “A public body may keep personnel records confidential . . . [w]hich relate to internal personnel investigations including examination and selection material for employment, hiring, appointment, promotion, demotion, discipline, or resignation.” 51 O.S. §24A.7(A)(1). Section 24A.7(A)(2) provides an exemption to record production “where disclosure would constitute a clearly unwarranted invasion of personal privacy.” Finally, Section 24A.7(B) provides that “all personnel records not specifically falling within the exceptions provided in subsection A of this section shall be available for public inspection and copying.”
Note the permissive language in Section 24A.7(A)(1) where “may” is used. “May” is a permissive word indicating discretion rather than mandate. Therefore, under Section 24A.7(A)(1), a public body has the discretion to decide whether or not to keep confidential any records that relate to internal personnel investigations as delineated in the statute. Generally, it is the “public policy of the State of Oklahoma that the people are vested with the inherent right to know and be fully informed about their government.” 51 O.S. §24A.2.
In Ross v. City of Owasso, the Oklahoma Court of Civil Appeals was faced with answering the question concerning whether the City of Owasso abused its discretion when it refused to release a copy of an investigative report (the Fortney Report) concerning Owasso’s City Manager and potentially criminal acts and violations of City policy he may have committed. The City argued that if the behavior of a public official is not criminal, but, merely “unethical/questionable,” this creates a public policy interest in the City keeping any investigation of the behavior secret, and indicates the lack of a public “need to know” under the Act.
While it’s a fine distinction, it is a distinction nonetheless, that the focus of the Court wasn’t really the reported conduct of the City Manager, so much as it was the potentially inappropriate expenditure of public funds when the governing body paid him a sizable severance when they could have terminated him for cause and paid him nothing. Ross’s request was not intended for general investigative or journalism purposes. Ross ¶20. The Court determined that Ross’s request involves a central matter of good governance – the allegation that substantial public funds were improperly expended paying a severance package to the City Manager because the City Manager’s contract explicitly required the forfeiture of any right to severance pay if his employment was severed for cause. Ross ¶20. The report would have provided answers regarding the City Council’s ability to terminate the City Manager for cause as a result of the investigation.
The Court applied a “balancing test and determined that the balance in this case clearly favored disclosure.” Ross ¶21. “The records request involved a high-profile employee in an official position, not routine day-to-day personnel employment matters. It involves specific questions of why the City Manager, who was accused of misconduct, was granted a substantial severance package, paid for by the taxpayers of Owasso, instead of being fired. In short, it is a “core” Open Records matter going directly to questions of the legitimacy of the Mayor and City Council’s good governance and use of funds, and the citizen’s inherent political power to inquire into these matters.” Ross ¶21
“Because the City identified no valid privacy, state, or public interests in withholding the Report, the Court found it should be disclosed under the Open Records Act.” Ross ¶21.
In Ross, the Court held that the City had failed to meet its burden to show that it had a valid basis under the Open Records Act to show why the records should not be made available. Ross ¶22. So, an important takeaway from Ross is that the public body must give a reason for not producing the requested record. This means that the public body must have an official ruling on any record request where records are not going to be released. If the request is made in a Council-Manager form of government where the City Manager has the authority over personnel matters, then it seems more prudent for the City Manager to make that official reason for refusing to produce records that are deemed confidential under the Act. This will avoid the governing body from being placed in a position of violating the law by encroaching into personnel matters that are not their area to be in.
In sum, what was Ross really about? It was about the public’s right to know how its governing body was spending the public’s money. It had little, if anything, to do with the fact that the City Manager was terminated and more to do with the reasons underlying his performance and the governing body’s interest in removing him. Public monies were spent when there was a contractual mechanism for paying him nothing. That was the central point of focus for the court and one that tipped the scales in favor of release of the records.
So, what are the options available to public bodies considering the ruling in Ross?
The public body could just give up the records. That ends the matter and favors the public’s right to information.
Sometimes, release could open other issues such as Constitutional rights violations. Under those situations, maybe it is best to fight to keep the records confidential. The City Attorney will have to defend in these situations in court. This means it is likely the court will want to review the records and decide for itself whether the records should be released. This means that the Court will conduct an in-camera review and privately determine whether to release the records.
If the Court determines the records should be released, or perhaps the parties decide to release cooperatively, a protective order can be put in place to protect the records from being used beyond the intended purpose of the request.
Cities with collective bargaining or other appeal/grievance procedure, may have a defense that the discipline is not final until it has run through the grievance and/or appeal procedures.
