- Identify alleged victims of sex crimes or domestic violence;
- Identify witnesses who have requested anonymity or confidential informants;
- Include information “that would materially compromise an ongoing criminal investigation” or prosecution as long as within ten days following arraignment of a person charged in the case related to the recording, the recording is made available to the public in full. If 120 days elapse and no one has been charged, but the release of the recording has nevertheless been denied, a requester may seek judicial review.
In Oklahoma Association of Broadcasters, Inc. v. City of Norman & Norman Police Department , the Oklahoma Supreme Court held that surveillance video depicting the cause of an individual’s arrest “contain[ed] facts concerning the arrest,” and therefore was subject to disclosure. 390 P.3d 689, 697 (Ok. 2016). The individual, however, was never “arrested” because he voluntarily appeared at the sheriff’s department to wait until he posted bail for the crime depicted in the surveillance video. Id. at 692. The court resolved that the “breadth of the term ‘arrest’ as used in Section 24A.8(A)(2)” extended to a video record of “the facts leading up to the arrest,” even in the absence of a formal “arrest”--it was enough that he was in law enforcement custody before being arraigned. Id. at 696. “Adding additional elements to the definition of arrest and its common meaning would thwart the Act's underlying legislative policy,” the court reasoned, by “allow[ing] law enforcement agencies to give preferential treatment to select defendants by allowing them to submit to a court rather than forcibly restraining them, and thus, suppressing videos depicting those defendants’ violent and unbecoming behavior, while exposing the same or similar violent and unbecoming behavior of another, equally or even less culpable, defendant.” Id. The court also ruled on the issue of whether requesters were permitted to make copies of the surveillance video, finding that “the public’s right to inspect a record as used in Section 24A.8(A) … includ[es] their right to obtain a copy of the record.” Id.
In Ward & Lee, P.L.C. v. City of Claremore , the Oklahoma Court of Civil Appeals held that a video of an individual’s arrest was subject to disclosure, finding that the text of the statute that allows for disclosure of “facts concerning the arrest, including the cause of arrest” incorporated the arrest itself. 316 P.3d 225, 227–28 (Ok. Civ. App. 2013).
15. Biometric data (e.g., fingerprints)
Not specifically addressed.
16. Arrest/search warrants and supporting affidavits
Arrest and search warrants are available for public inspection and copying. 51 O.S. § 24A.8(6).
17. Physical evidence
Not specifically addressed, but records as defined by the ORA includes things beyond physical documents like tapes, recordings, etc. 51 O.S. § 24A.3.
P. Prison, parole and probation reports
The Oklahoma Pardon and Parole Board is a public body whose records are subject to review under the Open Records Act. 1988 OK AG 87.
Q. Professional licensing records
Oklahoma has numerous licensing boards. Under the Oklahoma Open Records Act, the records of all boards are public. The Oklahoma Court of Civil Appeals has held that the Board of Medical Licensure is a public body subject to the Open Records Act. Bd. of Medical Licensure v. Miglaccio, 1996 OK CIV APP 37. The Attorney General has also stated that “a licensing board’s disciplinary files, subject to limited exceptions, are treated as public records.” 2017 OK AG 12, ¶ 7.
R. Public utility records
The amount of money spent by a public service corporation to secure rights-of-way, to engage in construction or to reconstruct existing facilities is a matter of public record. Okla. Const. Art. 9, § 29. Although they must provide public access to their records, including records of the name, address, rate paid for services, charges, and payment for each customer, public bodies that provide utility services to the public may keep confidential credit information, credit card numbers, telephone numbers, and bank account information for individual customers. 51 O.S. § 24A.9(D). The Corporation Commission shall keep confidential those records of a public utility, its affiliates, suppliers and customers which the Commission determines are confidential books, records, or trade secrets. 51 O.S. § 24A.22. A public body that performs billing or collection services for a utility regulated by the Corporation Commission may keep confidential any customer or individual payment data obtained or created by the public body. 51 O.S. § 24A.10(D).
S. Real estate appraisals, negotiations
1. Appraisals
A public body may keep confidential records relating to appraisals for the sale or acquisition of real estate if disclosure would give an unfair advantage to competitors or bidders. 51 O.S. § 24A.10.B.5. The records would be available for public inspection after the sale or acquisition is completed.
2. Negotiations
If disclosure would give an unfair advantage to competitors, then the record may be kept confidential. 51 O.S. § 24A.10(B)(5).
3. Transactions
Bid specifications and contents of sealed bids may be kept confidential prior to opening of the bids if disclosure would give an unfair advantage to competitors or bidders. 51 O.S. § 24A.10(B)(1)–(2).
4. Deeds, liens, foreclosures, title history
Deeds, liens, foreclosures and title histories are maintained with the County Clerk and are open for public inspection.
5. Zoning records
Zoning records are maintained with the County Clerk and are open for public inspection.
T. School and university records
1. Athletic records
Not specifically addressed.
2. Trustee records
Not specifically addressed, but trustees are considered public officials under the Open Records Act. 51 O.S. § 24A.3.
3. Student records
If kept, statistical information not identified with a particular student and directory information shall be open for inspection and copying. “Directory information” includes a student’s name, address, telephone listing, date and place of birth, major field of study, participation in officially recognized activities and sports, weight and height of members of athletic teams, dates of attendance, degrees and awards received, and the most recent previous educational institution attended by the student. Any educational agency or institution making public directory information shall give public notice of the categories of information which it has designated as directory information with respect to each student attending the institution or agency and shall allow a reasonable period of time after the notice has been given for a parent to inform the institution or agency that any or all of the information designated should not be released without prior consent of the parent or guardian or the student if the student is eighteen (18) years of age or older. 51 O.S. 24A.16(B).
4. School foundation/fundraising/donor records
Institutions or agencies of The Oklahoma State System of Higher Education may keep confidential all information pertaining to donors and prospective donors to or for the benefit of the institutions or agencies. 51 O.S. § 24A.16a.
5. Research material or publications
Information related to research done by a public body may be kept confidential when the disclosure of such information may affect the proprietary rights the public entity may have in the research and results of such research. 51 O.S. § 24A.19.
6. Other
U. State guard records
Oklahoma has not specifically addressed the status of state guard records. The Oklahoma Attorney General has stated that the Oklahoma National Guard is within the Oklahoma Military Department, which is an agency of the state of Oklahoma. . In the same opinion, the Attorney General found that the Oklahoma National Guard was a state law enforcement agency for purposes of sharing in the proceeds of federal drug-related property forfeitures. Id.
V. Tax records
The records and files of the Oklahoma Tax Commission are confidential and the Tax Commission is prohibited from disclosing any information contained in its files relating to income tax or to any other taxes. 68 O.S. § 205.
W. Vital Statistics
1. Birth certificates
A birth certificate is deemed confidential and may not be disclosed. 63 O.S. § 1-323(A); see 2009 OK AG 33 (stating that “a vital statistics record such as a birth certificate, and the information contained therein, that is part of the Department of Health’s vital statistics system is confidential”).
2. Marriage and divorce
Marriage and divorce records are filed with the District Court and may be accessed through the Courts.
3. Death certificates
A death certificate is deemed confidential and may not be disclosed. 63 O.S. § 1-323(A).
4. Infectious disease and health epidemics
Not within the scope of vital statistics in Oklahoma, which are confidential and defined as “records of birth, death, fetal death and data related thereto.” 63 O.S. § 1-301.
IV. Procedure for obtaining records
A. How to start
1. Who receives a request?
The public body must designate the person to receive the request. 51 O.S. §§ 24A.5(6)., 24A.6.
2. Does the law cover oral requests?
The law defines neither written nor oral requests. The Oklahoma Court of Appeals has stated that the Open Records Act contains no provision for dictating the manner in which to make a request for inspection of a record. Int’l Union of Police Ass’ns v. City of Lawton, 2009 OK CIV APP 85 ¶ 14. The public body is compelled to provide prompt, reasonable access to the records upon request. 25 O.S. § 24A.5(6); see In re University Hospitals Authority, 1997 OK 162, 953 P.2d 314 (contract made available to the public two days before consideration in an open meeting was timely when the record was provided as soon as it came into existence).
As a best practice, the requester should make the request in writing.
The written request should direct the public body to state the specific statute it is relying upon to deny access to the record.
3. Required contents of a written request
There are no required contents.
4. Can the requester choose a format for receiving records?
The public body is not required to provide the record in any format other than that maintained by the public body. See 51 O.S. § 24A.18. An agency may convert the record into a requested electronic format but is not required to do so. 2012 OK AG 22. Public bodies are not required to email records requested. Wagner v. Office of Sheriff of Custer County , 2021 OK CIV APP 20.
5. Availability of expedited processing
Not specifically addressed.
B. How long to wait
The Act states that a public body must provide prompt, reasonable access to its records. 51 O.S. § 24A.5(6). The Act does not address specific time limits. It is therefore advisable that a time for the response be included with the written request.
1. Statutory, regulatory or court-set time limits for agency response
The Act states that a public body must provide prompt, reasonable access to its records. 51 O.S. § 24A.5(6).
2. Informal telephone inquiry as to status
There is no mention of this in the law, but it can be advantageous to help stay on top of your request.
3. Is delay recognized as a denial for appeal purposes?
The Act does not impose specific time limits, but at least one trial court in Oklahoma has previously recognized delay as a denial for appeal purposes (e.g., a delay of 17 months) See Branstetter v. Fallin , CV-2014-2372, OSCN, Court Letter Ruling at *3 (Dist. Ct. Okla. Cnty. Apr. 13, 2018), https://s3.documentcloud.org/documents/4438896/Judge-Davis-Letter-Ruling-1.pdf ("While Plaintiffs’ requests may not have been formally denied in this matter, it is uncontroverted that no documents were produced prior to the lawsuit being filed. At the core of this controversy is whether a delay in producing records in response to an open records request of over a year and a half to two years is a failure to provide ‘prompt, reasonable’ access to the records. It appears Defendants concede the delays in producing the documents in this case resulted in a response that was not prompt. The Court declines to opine as to the appropriate process or procedure for responding to an open records request or to set forth a hard and fast rule or a specific time frame for production of documents pursuant to an open records request; however, in this case, neither the delays nor the process which resulted in the delays in excess of 17 months was prompt or reasonable.”).
4. Any other recourse to encourage a response
C. Administrative appeal
The Act does not provide for an administrative appeal.
1. Time limit to file an appeal
2. To whom is an appeal directed?
3. Fee issues
4. Contents of appeal
5. Waiting for a response
6. Subsequent remedies
D. Additional dispute resolution procedures
There are no other formal dispute resolution procedures. Consider negotiating with the public official or public body (narrowing request, requesting to inspect records vs. copy records, etc.).
1. Attorney General
The Attorney General is not directly involved in criminal or civil enforcement of the Act. The Attorney General will issue opinions on specific questions concerning the application of the Act. Covered agencies must act consistent with these opinions.
2. Ombudsperson
3. Other
Any willful violation may be prosecuted by the District Attorney’s office. 51 O.S. § 24A.17(A).
E. Court action
1. Who may sue?
Any person denied access may bring a civil action. 51 O.S. § 24A.17(B).
2. Priority
There are no provisions for expediting an access to records case.
3. Pro se
While it is possible to proceed pro se, the Act does allow for the recovery of reasonable attorney fees if successful. Because the Act allows a cause of action for injunctive and declaratory relief, both requiring specialized pleading, it would be advisable to use an attorney and seek recovery of the fees.
4. Issues the court will address
a. Denial
Any person denied access may bring a civil action. 51 O.S. § 24A.17(B).
b. Fees for records
Fees shall not be used for the purpose of discouraging requests for information or as obstacles to disclosure of requested information. 51 O.S. § 24A.5(4). Excessive fees may not be charged for copying records and any violation of the Act creates criminal or civil liability. 51 O.S. § 24A.5(3).
c. Delays
A public body must provide “prompt, reasonable access” to records. 51 O.S. § 24A.5(6). At least one trial court in Oklahoma has previously recognized a delay of 17 months considering the case’s specific circumstances to be neither prompt nor reasonable access as required by the Act See Branstetter v. Fallin , CV-2014-2372, OSCN, Court Letter Ruling at *3 (Dist. Ct. Okla. Cnty. Apr. 13, 2018), https://s3.documentcloud.org/documents/4438896/Judge-Davis-Letter-Ruling-1.pdf ("While Plaintiffs’ requests may not have been formally denied in this matter, it is uncontroverted that no documents were produced prior to the lawsuit being filed. At the core of this controversy is whether a delay in producing records in response to an open records request of over a year and a half to two years is a failure to provide ‘prompt, reasonable’ access to the records. It appears Defendants concede the delays in producing the documents in this case resulted in a response that was not prompt. The Court declines to opine as to the appropriate process or procedure for responding to an open records request or to set forth a hard and fast rule or a specific time frame for production of documents pursuant to an open records request; however, in this case, neither the delays nor the process which resulted in the delays in excess of 17 months was prompt or reasonable.”).
d. Patterns for future access (declaratory judgment)
Declaratory judgments may be sought. 51 O.S. § 24A.17(B).
5. Pleading format
A petition should allege that a record is in the hands of a public officer or office, and that the officer or office has failed to make the record available for inspection. 51 O.S. § 24A.17.
6. Time limit for filing suit
The statute of limitations for such a suit is two years. 12 O.S. § 95.
7. What court?
Oklahoma District Court (trial level of state court system).
8. Burden of proof
Any person denied access to records of a public body or public official may bring a civil suit for declarative or injunctive relief. 51 O.S. § 24A.17. During litigation, the person, agency or political subdivision denying access to open records shall at all times bear the burden of establishing such records are protected by a confidential privilege. 51 O.S. § 24A.2.
9. Judicial remedies available
Courts can grant declarative or injunctive relief, as well as mandamus relief. 51 O.S. § 24A.17.
10. Litigation expenses
a. Attorney fees
Attorney fees may be recovered by the successful plaintiff. Lawson v. Curnutt, 2010 OK CIV APP 78.
b. Court and litigation costs
Court costs may be awarded at the discretion of the court. 12 O.S. § 927.
11. Fines
Violations of the ORA can result in fines of up to $500. 51 O.S. § 24A.17(A).
12. Other penalties
13. Settlement, pros and cons
F. Appealing initial court decisions
1. Appeal routes
A final order may be appealed to the Oklahoma Supreme Court. 12 O.S. § 952. The case may then be assigned to the Court of Appeals by the Supreme Court.
2. Time limits for filing appeals
A petition in error must be filed within thirty (30) days from a final judgment or order. 12 O.S. Ch. 15, App. 2, Rule 1.15(a).
3. Contact of interested amici
Amicus briefs may be filed by consent of the parties or by leave of the Chief Justice of the Supreme Court. The amicus curiae must file a statement not exceeding five pages disclosing the nature of the interest, the factual or legal questions which are not adequately addressed by the litigants and the relevancy of the factual or legal questions to the disposition of the case. Upon a showing of extraordinary circumstances, the amicus curiae may be allowed to participate in oral arguments. 12 O.S. Ch. 15, App. 2, Rule 1.28a.
The Reporters Committee for Freedom of the Press often files amicus briefs in cases involving significant media law issues before a state’s highest court.
G. Addressing government suits against disclosure
Not contemplated by Oklahoma law.
Open Meetings
I. Statute - basic application
The Oklahoma Open Meeting Act, 25 O.S. §§ 301–314, states that “[i]t is the public policy of the State of Oklahoma to encourage and facilitate an informed citizenry’s understanding of the governmental processes and governmental problems,” id. § 302.
A. Who may attend?
Any person may attend meetings of a public body. 25 O.S. § 303.
B. What governments are subject to the law?
1. State
All boards, bureaus, commissions, agencies, etc. of the state except the state judiciary, state legislature and administrative staff of public bodies, when the administrative staff is not meeting with the public body, are covered. 25 O.S. § 304.1.
2. County
Boards of County Commissioners and their committees and subcommittees are public bodies under the Act. 25 O.S. § 304.1.
3. Local or municipal
All governing bodies of municipalities and their committees or subcommittees are public bodies covered under the Act. 25 O.S. § 304.1.
C. What bodies are covered by the law?
1. Executive branch agencies
All state agencies supported in whole or in part by public funds, or entrusted with the expending of public funds, or administering public property, are public bodies under the Act except administrative staffs of public bodies, when administrative staffs are not meeting with the public body. 25 O.S. § 304.1. Any meeting between the Governor and a majority of members of any public body is open to the public. 25 O.S. § 308.
Administrative staffs of public bodies, including faculty meetings and athletic staff meetings of institutions of higher education, are not covered by the Act.
a. What officials are covered?
The Open Meeting Act does not apply to “officials” but rather to “public bodies.” Under the Open Records Act, “public official” means “any official or employee of any public body.” 51 O.S. § 24A.3(4). In other words, under the Open Records Act, an employee of a “public body” is a “public official.” Id. But the reverse is not necessarily true—that is, a panel, department, or the like is not necessarily a “public body” for purposes of the Open Meeting Act merely because most of its staff are public officials. For instance, the Governor’s Security and Preparedness Executive Panel, a majority of its members being public officials, has been found to not be subject to the Open Meeting Act. See 2002 OK AG 5 (“[T]he mere presence on the panel of people who may be public officials in other facets of government does not in and of itself render the panel a public body.”).
b. Are certain executive functions covered?
Any meeting between the Governor and a majority of members of any public body is covered. 25 O.S. § 308.
c. Are only certain agencies subject to the act?
All “agencies” are covered under the Act. 25 O.S. § 304(1). Agencies are defined as “any board, commission, department, authority, bureau, office or other entity created with authority to make rules or formulate orders as defined in the Administrative Procedures Act.” 74 O.S. § 3301.
2. Legislative bodies
The state legislature is exempt from the definition of public body for purposes of the act. 25 O.S. § 304.1. Open meetings of the legislature are conducted in accordance with rules adopted by each house thereof. 25 O.S. § 309. County and local legislative and governing bodies are covered by the act. 25 O.S. § 304.1.
3. Courts
The state judiciary is exempt under the definition of “public body” for purposes of the Act. 25 O.S. § 304.1. Further, the Council on Judicial Complaints is exempt when conducting, discussing or deliberating any matter relating to a complaint received or filed with the Council. Id. Bar disciplining proceedings are not subject to the Act. State ex rel. Oklahoma Bar Ass’n v. Mintor, 2001 OK 69, 37 P.3d 763.
4. Nongovernmental bodies receiving public funds or benefits
All boards, bureaus, commissions, agencies, trusteeships, authorities, councils, committees, public trusts, or any entity created by a public trust, task forces or study groups in the State of Oklahoma supported in whole or in part by public funds, or entrusted with the expending of public funds, or administering public property are public bodies for purposes of the Act. 25 O.S. § 304.1. The term “public body” is broad enough to cover non-profit entities or trade associations if the private entity meets the definitional requirements of the Act. 2017 OK AG 18. Private organizations are subject to the Act if (1) they do not submit itemized invoices for goods or services provided and instead receive a direct allocation of public funds from tax or other revenues or (2) there is no quid pro quo between the amount of goods, and services provided and the funds received, i.e. the organization receives funds regardless of whether they provide goods and services. 2002 OK AG 37.
5. Nongovernmental groups whose members include governmental officials
If the body is supported in whole or in part by public funds or entrusted with the expending of public funds, or administering public property, then it is covered under the Act. 25 O.S. § 304.1. If a majority of the public body sits as members of the non-governmental group, and the non-governmental body makes recommendations to the public body, then the non-governmental group would also be covered under the Act. 25 O.S. § 306; see also 1982 OK AG 212.
6. Multi-state or regional bodies
If a body is supported by public funds or has actual or de facto decision-making authority to bind a governmental body, then a multistate or regional body is subject to the Act. 1981 OK AG 311. An entity that is formed by multiple counties pursuant to statutory authorization and performs a delegated function, such as self-insurance, that would otherwise be done by the individual counties and that receives funding from such county governments is subject to the Act. 1999 OK AG 37.
7. Advisory boards and commissions, quasi-governmental entities
he Act governs public bodies including “all boards, bureaus, commissions, agencies, trusteeships, authorities, councils, committees, public trusts or any entity created by a public trust, including any committee or subcommittee composed of any of the members of a public trust or other legal entity receiving funds from the Rural Economic Action Plan Fund . . ., task forces or study groups in this state supported in whole or in part by public funds or entrusted with the expending of public funds, or administering public property, and shall include all committees or subcommittees of any public body.” 25 O.S. § 304(1). If the body is supported in whole or in part by public funds or entrusted with the expending of public funds, or administering public property, then it is covered under the Act. 25 O.S. § 304.1.
8. Other bodies to which governmental or public functions are delegated
All boards, bureaus, commissions, agencies, trusteeships, authorities, councils, committees, public trusts, or any entity created by a public trust, including any committee or subcommittee composed of any of the members of a public trust or other legal entity receiving funds from the Rural Economic Action Plan Fund, task forces or study groups in the State of Oklahoma entrusted with the expenditure of public funds or administering public property are public bodies for purposes of the Act. 25 O.S. § 304.1. The Grand River Dam Authority Lakes Advisory Commission is subject to the Act. 2002 OK AG 44. However, the Oklahoma Court of Civil Appeals has held that a not-for-profit insurance provider created by the Legislature was not a public body, even though four public officials constituted its Board of Managers. CompSource Okla. v. Nat’l Am. Ins. Co., 2012 OK CIV APP 22.
9. Appointed as well as elected bodies
If the body is supported in whole or in part by public funds or entrusted with the expending of public funds, or administering public property, then it is covered under the Act. 25 O.S. § 304.1. If a majority of the public body sits as members of the non-governmental group, and the non-governmental body makes recommendations to the public body, then the non-governmental group would also be covered under the Act. 25 O.S. § 306; see also 1982 OK AG 212. However, the body must meet the definition of “agency” found elsewhere under state law or the appointed body may not be subject to the Act. See 2002 OK AG 5.
D. What constitutes a meeting subject to the law
1. Number that must be present
A meeting is the conducting of business of a public body by a majority of its members meeting together. 25 O.S. § 304.2; see Int’l Ass’n of Firefighters, supra (key consideration is the public nature of the work of the group); Rogers v. Excise Board of Greer County, 1984 OK 95, 701 P.2d 754 (meetings held on legal holidays in locked public buildings do not comply with the law). A meeting may also be held by videoconference when a public body has been granted such authority by the legislature. 25 O.S. § 304.2, 7; 25 O.S. § 306.
a. Must a minimum number be present to constitute a "meeting"?
A majority is required. Id.; see also Monkey Island Development Authority v. Paul Staten, 2003 OK CIV APP 64, 76 P.3d 84 (rejecting a claim that a meeting violated the Act, stating “[w]ithout a majority, there could be no ‘meeting’ under the Act and no violation”). In a videoconference meeting, at least a quorum of the public body must be present at the posted meeting site. 25 O.S. § 307.1.A.
b. What effect does absence of a quorum have?
No meeting of the public body can take place unless a majority of the members is present. 25 O.S. § 304.2, 7; 25 O.S. § 306.
2. Nature of business subject to the law
a. "Information gathering" and "fact-finding" sessions
Informal gatherings or fact-finding sessions are prohibited. 25 O.S. § 306. Informal gatherings among a majority of the members of a public body on any course of action or to vote on any matter is prohibited. In re Appeal of the Order Declaring Annexation Dated June 28, 1978, 1981 OK CIV APP 57, 637 P.2d 1270 (act covers not only formal meetings but entire decision-making process). “The legislative intent is unmistakable. 25 O.S. § 306 is an absolute prohibition upon any attempt to circumvent the Open Meeting Act and obtain a consensus upon an item of business by informal meetings outside a public meeting.” 1981 OK AG 69.
b. Deliberation toward decisions
The Act defines a meeting as the “conduct of business of a public body by a majority of its members . . . .” 25 O.S. § 304.2. The Oklahoma Attorney general has opined that “conduct of business” includes the entire decision-making process including deliberation, decision or formal action. 1982 OK AG 212. Later opinions have concluded that “conduct of business” would include discussions in which the members of the public body are considering information that will aid them in their decision-making, even though those discussions do not necessarily effectively predetermine their official actions. 2012 OK AG 24. When a majority of commissioners of the Corporation Commission are present at the same time in a hearing conducted by an administrative law judge, the hearing is subject to the Act because they are engaged in the conduct of business. Id.
3. Electronic meetings
Public bodies are authorized to hold meetings by videoconference provided that each member is visible and audible to each other and the public through a video monitor. 25 O.S. § 307.A.1. No less than a quorum of the public body must be present at the posted meeting site. Id.
a. Conference calls and video/Internet conferencing
No electronic or telephonic communications, except for videoconferences specifically allowed in 25 O.S. § 307.1, among a majority of the members of a public body shall be used to decide any action or take any vote. 25 O.S. § 306.
b. E-mail
No electronic or telephonic communications, except for videoconferences specifically allowed in 25 O.S. § 307.1, among a majority of the members of a public body shall be used to decide any action or take any vote. 25 O.S. § 306.
c. Text messages
No electronic or telephonic communications, except for videoconferences specifically allowed in 25 O.S. § 307.1, among a majority of the members of a public body shall be used to decide any action or take any vote. 25 O.S. § 306.
d. Instant messaging
No electronic or telephonic communications, except for videoconferences specifically allowed in 25 O.S. § 307.1, among a majority of the members of a public body shall be used to decide any action or take any vote. 25 O.S. § 306.
e. Social media and online discussion boards
No electronic or telephonic communications, except for videoconferences specifically allowed in 25 O.S. § 307.1, among a majority of the members of a public body shall be used to decide any action or take any vote. 25 O.S. § 306.
E. Categories of meetings subject to the law
1. Regular meetings
a. Definition
The Act defines “regularly scheduled meeting” as a “meeting at which the regular business of the public body is conducted.” 25 O.S. § 304.3.
b. Notice
All public bodies must give written notice by December 15th of the schedule showing the date, time and place of all regularly scheduled meetings of the public body for the next calendar year. 25 O.S. § 311.A.1. All state public bodies must give notice to the Secretary of State; county agencies must give notice to the County Clerk; municipalities must give notice to the municipal clerk; and multicounty, regional, area wide or district public bodies must give notice to the county clerk where the body is principally located or, if they have no office, the clerk of the county where the public is served. 25 O.S. § 311.A.2–5. Any change to the schedule must be given to the appropriate authorities (Secretary of State, county clerk or municipal clerk) as required under the law not less than ten days prior to implementation of the change. 25 O.S. § 311.A.8.
Notices must be posted either in prominent public view at the principal office of the public body or at the location of the meeting if no public office exists at least 24 hours prior to the meeting excluding Saturdays, Sundays and legal holidays or on the public body’s internet website. 25 O.S. § 311.A.9.a–b. The Notice and Agenda must be visible before and after business hours. 1997 OK AG 98. Providing notice of a meeting by mail or by publishing in a local newspaper does not comply with the notice requirement of the Act. 2012 OK AG 24.
When a meeting is being conducted by videoconference, the notice and agenda for the meeting must state the location, address and telephone number of each available videoconference site. 25 O.S. § 307.1.A.2.a. The notice and agenda must also state the site from which each member of the public body will be present and participating in the meeting. 25 O.S. § 307.1.A.2.b. The public is allowed to be in each room from which a public official participates in the videoconference. 25 O.S. § 307.1.A.5.
The notice must contain all items to be considered at the public meeting. Any item not posted on the notice cannot be considered except that the public body may consider “new business” which is “any matter not known about or which could not have been reasonably foreseen prior to the time of posting.” 25 O.S. § 311.A.10; see also 1982 OK AG 114 (“A public body should not take up new business unless it has indicated that it would do so on the agenda for the meeting.”). The agenda must be plainly worded so that a person of ordinary education and intelligence can comprehend. Hayworth Bd. of Education v. Havens, 1981 OK CIV APP 56, 637 P.2d 902 (agenda item stating school board to interview new administrator held insufficient for board action of hiring administrator). In addition, if an executive session is proposed, the agenda must contain sufficient information for the public to ascertain that an executive session will be proposed, identify the items of business and purposes of the executive session, and state specifically the statutory authority for an executive session. 25 O.S. § 311.B.2.
The notice must contain the date, time and place of the public meeting. 25 O.S. § 311.A.1. Including the date, place and time without including an agenda of the meeting is insufficient notice. Hillary v. State, 1981 OK 78, 630 P.2d 791. A public body may not post notice of two separate meetings held in separate locations at the same time on the same day, as a majority may not be present in two places at the same time. 2012 OK AG 24.
Language found in the public policy section of the Act, together with the inclusion of a penal penalty, makes it a penal statute which must be strictly construed. State v. Patton, 1992 Okla. Crim. 57, 837 P.2d 483. All actions taken in willful violation of the Open Meetings Act are invalid. 25 O.S. § 313; see Hayworth, supra (board hiring of superintendent without meeting agenda requirements invalidated); In re Appeal of the Order Declaring Annexation Dated June 28, 1978, supra (vote on annexation held without public body compliance with act held invalid); Okmulgee County Rural water Dist. No. 2 v. Beggs Public Works Authority, 2009 OK CIV APP 51, 211 P.3d 225 (absent posted notices of its intent to consider the 2004 water contract, Beggs’ execution and approval of the 2004 contract is invalid as “exceed[ing] the scope of action defined by the notice[s]”); 2002 OK AG 07 (vote to add disclaimer to textbooks invalid because agenda did not contain sufficient notice to public that such disclaimer was to be discussed). Persons who willfully violate the provisions of the act are guilty of a misdemeanor and upon conviction can be fined $500 or imprisoned in county jail for one year, or both. 25 O.S. § 314; see Hillary v. State, supra (defendant fined after being found guilty of violating the Open Meeting Act on three separate occasions when agendas for public meetings were not posted).
c. Minutes
The minutes of a public meeting must contain an official summary of the proceedings which shows the members absent and present, the matters considered and the actions taken. 25 O.S. § 312.A. The presence or absence of a public official must be recorded in the minutes in a manner that is easily understood and not deceptively vague or misleading. Andrews v. Indep. Sch. Dis. No. 29, 1987 OK 40; Wilson v. Tecumseh, 2008 OK CIV APP 84. All votes must also be publicly cast and recorded. 25 O.S. § 305.
Minutes are public records. 25 O.S. § 312.A. A court reporter’s transcript of a public meeting does not satisfy the minutes requirement of the Act. 2012 OK AG 24. Further, any person attending a public meeting may record the meeting by videotape, audiotape, or other means provided such recording does not interfere with the conduct of the meeting. 25 O.S. § 312.C.
2. Special or emergency meetings
a. Definition
A special meeting of a public body is one that is not regularly scheduled or not an emergency. 25 O.S. § 304.4. An emergency meeting is one called when a situation involves injury to persons or injury and damage to public or personal property or immediate financial loss and the time requirements for public notice of a special meeting would make such procedure impractical and increase the likelihood of injury or damage or immediate financial loss. 25 O.S. § 304.5.
b. Notice requirements
For a special meeting, public notice must be given to the appropriate notifying authorities (Secretary of State, county clerk or municipal clerk) at least 48 hours prior to the meeting. In addition, the notice must be posted at least 24 hours prior to the meeting excluding Saturdays, Sundays and legal holidays. 25 O.S. § 311.A.9. For an emergency meeting, as much advance notice “as is reasonable and possible under the circumstances” must be given. 25 O.S. § 311.A.13; Weeks v. Northeast Oklahoma Area Vo-Tech School, 1982 OK CIV APP 16, 657 P.2d 1205 (emergency board meeting called to vote on non-renewal of teachers’ contract justified when school system faced loss of $70,000 if vote not immediately taken).
For a special meeting, notice is given to the general public by displaying it prior to the meeting. Also, notice must be mailed or delivered to any person, newspaper, wire service, radio station, and television station at least 48 hours prior to the special meeting if a written request for such notice has been filed with the public body. A charge of up to $18 per year may be assessed against persons or entities who file such requests. 25 O.S. § 311.A.12. For an emergency meeting, as much notice as possible must be given to the public. 25 O.S. § 311.A.13.
For a special meeting, the notice must be posted in prominent view at the public body’s principal office or, if no office exists, at the location of the meeting or by posting on the public body’s internet website. 25 O.S. § 311.A.12. For an emergency meeting, the notice must be given in person or by telephonic or electronic means. 25 O.S. § 311.A.13.
Only the specific matters listed on the posted agenda may be considered. 25 O.S. § 311.A.12, 13.
The notice must contain the date, time, place and agenda for the meeting. 25 O.S. § 311.A.12, 13.
Language found in the public policy section of the act, together with the inclusion of a penal penalty, makes it a penal statute which must be strictly construed. State v. Patton, supra. All actions taken which are in willful violation of the Open Meetings Act are invalid. 25 O.S. § 313. Hayworth, supra (board hiring of superintendent without meeting agenda requirements invalidated); In re Appeal of the Order Declaring Annexation Dated June 28, 1978, supra (vote on annexation held without public body compliance with act held invalid). Persons who willfully violate the provisions of the act are guilty of a misdemeanor and upon conviction can be fined $500 or imprisoned in county jail for one year, or both. 25 O.S. § 314; Hillary v. State, 1981 OK CR 78, 630 P.2d 791 (defendant fined after being found guilty of violating the Open Meeting Act on three separate occasions when agendas for public meetings were not posted).
c. Minutes
The minutes of a public meeting must contain an official summary of the proceedings which shows the members absent and present, the matters considered and the actions taken. 25 O.S. § 312.A. All votes must also be publicly cast and recorded. 25 O.S. § 305. When the minutes are of an emergency meeting, the minutes must also contain the nature of the emergency and the reasons for declaring such emergency meeting. 25 O.S. § 312.B.
Minutes of a meeting are public record. 25 O.S. § 312.A. Further, any person attending a public meeting may record the meeting by videotape, audiotape, or other means provided such recording does not interfere with the conduct of the meeting. 25 O.S. § 312.C.
3. Closed meetings or executive sessions
a. Definition
A public body may not hold an executive session unless specifically allowed in 25 O.S. § 307. The executive session provisions of the Act do not themselves create any legal privileges that require matters to be kept confidential and therefore, in any given instance in which an executive session may be held, the public body must determine whether an executive session is warranted. 1992 OK AG 23. Provisions of a “home rule” city charter requiring all meetings to be open must yield to the state law on executive sessions and thus the public body can go into executive session as allowed under state law. City of Kingfisher v. Oklahoma, 1998 OK CIV APP 39, 958 P.2d 170.
b. Notice requirements
If a public body proposes to go into executive session, the proposal must appear on the agenda of the regular, special or emergency meeting. 25 O.S. § 311.B.1.
The agenda must be posted in the same place as required by the particular meeting in which the executive session is a part. Id.
The agenda shall contain sufficient information for the public to ascertain that an executive session will be proposed, identify the item of business and purpose for the executive session and state the specific statutory authorization for the executive session. 25 O.S. § 311.B.2; see also 1997 OK AG 61 (“[T]he word ‘identify’ as used in Section 311(B), connotes a requirement by the Legislature that public bodies must provide the public with enough information on its agenda to all the public to know the nature of an executive session discussion.”).
The items to be discussed on the agenda are limited to the areas which are specifically outlined under the Act. Public notice posted in advance of a meeting shall state if such meeting will be conducted via video conferencing. 25 O.S. § 307.1.A.2.
Any willful violation can result in a misdemeanor prosecution. 25 O.S. § 307.F.1. If the act is violated all minutes and other records of the executive session, including tape recordings, are immediately made public. 25 O.S. § 307.F.2.
c. Minutes
The minutes of an executive session must contain an official summary of the proceedings which occurred in executive session. 25 O.S. § 312.A. The Oklahoma Supreme Court has ruled that the requirement for minutes to be kept and recorded also applies to executive sessions. Berry v. Board of Governors of registered Dentists, 1980 OK 45; see also 1996 OK AG 100.
Minutes of an executive session are not public records. 51 O.S. § 24A.5.1.b. However, all votes or action concerning executive session discussions must be publicly cast and recorded. 25 O.S. § 307.E.3; Grayhill v. Oklahoma State Board of Education, 1978 OK 124, 585 P.2d 1358 (public announcement in front of board members of 5-0 vote taken in executive session satisfies requirement of publicly recording vote). The written minutes should be sealed and kept in a file separate from the regular minutes. 1996 OK AG 100.
d. Requirement to meet in public before closing meeting
A majority of the quorum of members present must vote to go into executive session. 25 O.S. § 307.E.2. However, the Board of Regents of Oklahoma Colleges still holds an executive session only upon a unanimous vote of all present. Okla. Const. Art. XIII-B, § 1.
e. Requirement to state statutory authority for closing meetings before closure
The Act explicitly requires that the agenda must state specifically the section of the law authorizing the executive session. 25 O.S. § 307.B.
f. Tape recording requirements
There is no requirement for tape recording executive sessions. 2012 OK AG 24.
F. Recording/broadcast of meetings
1. Sound recordings allowed
Any person may record “by videotape, audiotape or by any other method” a public meeting provided the act of recording does not interfere with the conduct of the meeting. 25 O.S. § 312.C.
2. Photographic recordings allowed
Any person may record “by videotape, audiotape or by any other method” a public meeting provided the act of recording does not interfere with the conduct of the meeting. 25 O.S. § 312.C.
G. Access to meeting materials, reports and agendas
Access to the records of a public body is governed by the Oklahoma Open Records Act. Unless a document is exempted from disclosure, the meeting materials, reports and agendas must be provided upon request.
H. Are there sanctions for noncompliance?
Any action taken by the public body in willful violation of the Act shall be invalid. 25 O.S. § 313. Further, any person willfully violating any provision of the Act shall be guilty of a misdemeanor punishable by up to $500 fine and/or one year in county jail. 25 O.S. § 314.
II. Exemptions and other legal limitations
A. Exemptions in the open meetings statute
1. Character of exemptions
The Oklahoma Open Meeting Act states that no public body shall go into executive session unless specifically authorized in 25 O.S. § 307. Despite that language, however, there are a limited number of statutes outside the Act that authorize executive sessions. See, e.g., 59 O.S. §1609(B) (Board of Examiners for Speech-Language Pathology and Audiology may go into executive session to approve, grade or administer examination); 74 O.S. 5060.7(C) (Oklahoma Science and Technology Research and Development Board may go into executive session to discuss proprietary information); 74 O.S. § 5062.6(G) (Oklahoma Development Finance Authority may go into executive session to discuss proprietary information); 74 O.S. § 5085.6(C) (Oklahoma Capital Investment Board may go into executive session to discuss proprietary information).
The requirement to go into executive session is discretionary. See 25 O.S. § 307.B-C. A public body may remove itself from a public meeting to discuss specified matters set forth in the legislature. 25 O.S. § 307. However, the executive session provisions of the Act do not themselves create any legal privileges that require matters to be kept confidential and therefore, in any given instance in which an executive session may be held, the public body must determine whether an executive session is warranted. 1992 OK AG 23.
2. Description of each exemption
Public bodies may discuss appointments, hiring, employment, promotion, demotion, disciplining or resignation of a salaried public official or employee in a closed meeting. 25 O.S. § 307.B.1. The term “employment includes continued employment and the conditions of employment such as place of employment, salary, duties to be performed and evaluations.” Isch v. Oklahoma Independent School District No. I-89, 1998 OK CIV APP 90, 963 P.2d 18. However, a public body cannot go into executive session for discussion of a job opening for a public officer or employee when no particular individual is to be discussed. 2006 OK AG 17. Discussions to consider awarding a contract for professional services when the recipient will be an independent contractor, rather than a public officer or employee of the public body, is also not a proper subject for an executive session. 2005 OK AG 29. School boards can discuss matters relating to volunteers as well as employees. 1996 OK AG 40.
Public bodies may discuss negotiations concerning employees and representatives of employer groups. 25 O.S. § 307.B.2.
Public bodies may discuss the purchase or appraisal of real property. 25 O.S. § 307.B.3. However, the public body is restricted as to the persons who may be present in such executive sessions. 25 O.S. § 307.D; see Lafalier v. The Lead-Impacted Communities Relocation Assistance Trust, 2010 OK 48, 237 P.3d 181 (trust found to have violated Open Meeting Act by allowing persons not authorized under 25 O.S. § 307.D. to attend executive session wherein the appraisal and purchase of real property was discussed). Further, the Attorney General has determined that section 307.B.3 authorizes a public body to meet in executive session to discuss the purchase or appraisal of real property, but contains no authority allowing a public body to meet in executive session to discuss the sale of real property. 2007 OK AG 32. To address, in part, these decisions, the Legislature amended 25 O.S. § 307.D to authorize persons who are operating under an existing agreement to represent the public body in a land transaction.
A public body may meet with its attorney concerning an investigation, claim, or action if disclosure of the information would seriously impair the public body’s ability to process the claim or conduct an investigation, litigation or proceeding in the public interest. 25 O.S. § 307.B.4; see 2005 OK AG 29 (“A ‘pending’ claim can refer to litigation or an administrative action which either presently exists or is merely potential or anticipated.”)
A board of education may close a hearing discussing the expulsion or suspension of a student when a closing is requested by the student, his parents, attorney or legal guardian. The board may also discuss negotiations concerning employees and representative employee groups and the purchase or appraisal of real property. 25 O.S. § 307.B.5.
Public bodies may discuss matters involving a specific handicapped child. 25 O.S. § 307.B.6.
Public bodies may discuss matters where disclosure of information would violate confidentiality requirements of state or federal law. 25 O.S. § 307.B.7.
Public bodies may engage in deliberations or render a final or intermediate decision in an individual proceeding pursuant to Article II of the Oklahoma Administrative Procedures Act. 25 O.S. § 307.B.8.
A public body may hold executive sessions to discuss investigations into plans, schemes or acts of terrorism, assessments of vulnerability of government facilities to acts of terrorism and/or discussion of plans to prevent or respond to acts of terrorism. 25 O.S. § 307.B.9.
The State Banking Board may hold executive sessions to grant an emergency certificate of authority or a certificate to maintain a branch to a state bank assuming deposit liability of another bank. 25 O.S. § 307.C.1.
The Oklahoma Industrial Finance Authority may hold executive sessions when the matter to be discussed involves trade secrets. 25 O.S. § 307.C.2.
The Oklahoma Development and Finance Authority may hold executive sessions when the matter to be discussed concerns trade secrets. 25 O.S. § 307.C.3.
The Oklahoma Center for the Advancement of Science and Technology may hold executive sessions when the item to be discussed concerns trade secrets. 25 O.S. § 307.C.4.
The Oklahoma Savings and Loan Board may hold an executive session for the purpose of involuntary liquidation of a state-chartered savings and loan association upon the recommendation of the federal savings and loan corporation. 25 O.S. § 307.C.5.
The Oklahoma Health Research Committee may hold executive sessions to discuss matters pertaining to research and development of products, if public disclosure would interfere with the development of patents, copyrights, products or services. 25 O.S. § 307.C.6.
A review committee created under the Local Development Act may hold closed sessions. 25 O.S. § 307.C.7.
The Child Death Review Board may close sessions for purposes of receiving and conferring on matters relative to materials declared confidential by law. 25 O.S. § 307.C.8.
The Domestic Violence Fatality Review Board may meet in executive session to discuss individual cases of a domestic violence death. 25 O.S. § 307.C.9.
Nonprofit entities supported in whole or in part by public funds or entrusted with the expenditure of public funds for purposes pertaining to economic development may close sessions if public disclosure would interfere with development of business or violate confidentiality of the business. 25 O.S. § 307.C.10.
Oklahoma Indigent Defense System Board for purposes of strategies when negotiating contracts to provide legal representation to criminal defendants and indigent juveniles. 25 O.S. § 307.C.11.
The Oklahoma Investment Committee for purposes of discussing application and confidential materials pursuant to terms of the Oklahoma Quality Investment Act. 25 O.S. § 307.C.12.
B. Any other statutory requirements for closed or open meetings
The Act states that no public body “shall hold executive sessions unless otherwise specifically provided in this section.” 25 O.S. § 307. This language is reinforced by the legislative mandate that if an executive session is proposed, the agenda shall “state specifically the provision of Section 307 of this title authorizing the executive session.” 25 O.S. § 311.A.12.B.2.c. The Act does not contain any other provision which would provide a “catch-all” exemption allowing a closure of meetings as provided by law.
C. Court mandated opening, closing
There have been no cases where a court has mandated a meeting be opened or closed.
III. Meeting categories - open or closed
A. Adjudications by administrative bodies
1. Deliberations closed, but not fact-finding
The Oklahoma Administrative Procedures Act “provides for open meetings . . . up to the point the decision making is reached. The final decision, being a quasi-judicial action, is not required to be reached in an open meeting.” Stillwater Sav. & Loan Ass’n v. Oklahoma Sav. & Loan Board, 1975 OK 50, 534 P.2d 9.
2. Only certain adjudications closed, i.e. under certain statutes
The Corporation Commission when sitting in its judicial capacity as granted by the Oklahoma Constitution is not subject to Open Meeting Act requirements. Monson v. State, ex rel. Oklahoma Corp. Comm’n, 1983 OK 115, 673 P.2d 839. Executive sessions may be held for engaging in deliberations or rendering a final or intermediate decision in an individual proceeding under the Administrative Procedures Act. 25 O.S. § 307.B.8. The Workers’ Compensation Commissioners is a quasi-judicial decision-making body and may therefor engage in confidential pre-decisional deliberations in cases considered the exercise of their judicial power. 2015 OK AG 8.
B. Budget sessions
There are no exemptions for budget sessions.
C. Business and industry relations
The Oklahoma Industrial Finance Authority, Oklahoma Development Finance Authority, and the Oklahoma Center for Advancement of Science and Technology, all designed in part to promote economic development, may meet in executive session after discussing matters which might be deemed trade secrets or proprietary information. 25 O.S. § 307.C.2-4. The exclusion of competitors for a state contract from a meeting of the State Board of Corrections violates the Open Meeting Act. 1979 OK AG 70.
D. Federal programs
Local boards which are supported by federal funds and/or receive in-kind services at local taxpayer expense are covered under the Open Meeting Act. 1971 OK AG 245. However, the meetings of such bodies may be closed where disclosure of information would violate confidentiality requirements of federal law. 25 O.S. § 307.B.7.
E. Financial data of public bodies
- The Open Meeting Act applies to meetings of the board of directors of a nonprofit corporation, where such corporation has contracted with a city and a public trust for the operation, maintenance and improvement of public property, and where the city makes annual appropriations to the public trust to pay to the corporation as an operating fee, where such meetings are held for the purpose of discussing business concerning such matters. 1980 OK AG 215.
- Public trusts organized under 60 O.S. §§ 176 et seq.are “public bodies” within the meaning of the Open Meeting Act, and such public trusts must comply with and are subject to the Open Meeting Act. 1981 OK AG 109.
iii. The Open Meeting Act applies to meetings of the board of directors of a nonprofit corporation, where such corporation has contracted with a city for the operation, maintenance and improvements of a municipal park and the city makes annual appropriations to the corporation as an operating fee, where such meetings are held for the purpose of discussing business concerning such matters. 1981 OK AG 139.
- The Open Meeting Act applies to meetings of the officers of a nonprofit corporation operating public property under contract with a municipality, where matters to be discussed or taken up concern the administration of the contract or the operation, improvement or maintenance of such public property. 1981 OK AG 184.
F. Financial data, trade secrets, or proprietary data of private corporations and individuals
- The Oklahoma Industrial Finance Authority may hold executive sessions when the matter to be discussed involves trade secrets. 25 O.S. § 307.C.2.
- The Oklahoma Development Finance Authority may hold executive session, when the matter to be discussed concerns trade secrets. 25 O.S. § 307.C.3.
- The Oklahoma Center for the Advancement of Science and Technology may hold executive sessions when the item to be discussed concerns trade secrets. 25 O.S. § 307.C.4.
- The Oklahoma Health Research Committee may hold executive sessions to discuss matters pertaining to research and development of products, if public disclosure would interfere with the development of patents, copyrights, products or services. 25 O.S. § 307.C.6.
G. Gifts, trusts and honorary degrees
Public trusts must comply with the act. 1981 OK AG 109.
H. Grand jury testimony by public employees
This issue has not been addressed under the act. However, it is a criminal offense for a person involved in the process to disclose evidence presented to a grand jury and how a grand jury may have voted. 21 O.S. § 583. It is also a criminal offense for anyone to record or listen to a grand jury’s deliberations or voting. 21 O.S. § 588.
I. Licensing examinations
The State Board of Examiners of Psychologists could not hold a closed meeting to determine the qualifications of applicants to be examined and licensed. 1976 OK AG 242.
J. Litigation, pending litigation or other attorney-client privileges
A public body may have confidential meetings with its attorney to discuss “a pending investigation, claim or action” when disclosure would seriously impair the proceeding, but any vote to file suit must be cast in public. Oklahoma Ass’n of Municipal Attorneys v. State, ex rel. Derryberry, 1978 OK 59, 577 P.2d 1310; Berry v. Board of Governors of Registered Dentists, 1980 OK 45, 611 P.2d 628; 25 O.S.§ 307. A “pending” claim can refer to litigation or an administrative action while either exists or is merely potential or anticipated. 2005 OK AG 29.
K. Negotiations and collective bargaining of public employees
Executive sessions are authorized to discuss negotiations concerning employees and representatives of employee groups. 25 O.S. § 307.B.3. As to the actual negotiations, if the negotiating entity has actual or de facto decision-making authority on behalf of the public body, then the negotiations must be open to the public. Int’l Ass’n of Firefighters, supra (negotiations between union and city manager not covered under Act because city manager lacked authority to bind city commission).
1. Any sessions regarding collective bargaining
As to the actual negotiations, if the negotiating entity has actual or de facto decision-making authority on behalf of the public body, then the negotiations must be open to the public. Int’l Ass’n of Firefighters, supra (negotiations between union and city manager not covered under Act because city manager lacked authority to bind city commission).
2. Only those between the public employees and the public body
As to the actual negotiations, if the negotiating entity has actual or de facto decision-making authority on behalf of the public body, then the negotiations must be open to the public. Int’l Ass’n of Firefighters, supra (negotiations between union and city manager not covered under Act because city manager lacked authority to bind city commission).
L. Parole board meetings, or meetings involving parole board decisions
The Board of Corrections is covered by the Act as matter of law because of its statutory origin. Sanders v. Benton, 1978 OK 53, 579 P.2d 815; 1980 OK AG 144 (the Pardon and Parole Board’s practice of voting by mail on whether to recommend clemency contravened the Act).
M. Patients, discussions on individual patients
There has been no case law on this issue.
N. Personnel matters
The Open Meeting Act provides that an executive session may be held to discuss “employment, hiring, appointment, promotion, demotion, disciplining, or resignation of any individual salaried public officer or employee[.]” 25 O.S. § 307.B.1. Contemporaneous with the 1978 amendment of the Open Meetings Act, the attorney general issued an opinion stating that going into executive session to discuss salaries of individual public officers or employees was not allowed under the act. 1978 OK AG 201. In 1996, the attorney general, in response to an inquiry concerning whether a public body could go into executive session to discuss salaries, issued an opinion withdrawing the 1978 opinion and stating that executive sessions could be called for the sole purpose of discussing salaries because salaries were included in the word “employment.” 1996 OK AG 40. The opinion expanded even further on the definition of “employment,” explaining that it “include[s] continued employment and conditions of employment such as place of employment, salary, duties to be performed and evaluations.” Id. This opinion was subsequently adopted by the Oklahoma courts. See Isch, supra.
1. Interviews for public employment
Governing bodies may go into executive session to discuss the hiring of public officers or employees. 25 O.S. § 307.B.1. A public body may not go into executive session to discuss awarding a contract for professional services unless the recipient will be an independent contractor, rather than a public officer or employee of the public body. 2005 OK AG 29.
2. Disciplinary matters, performance or ethics of public employees
- Public bodies may discuss appointments, hiring, employment, promotion, demotion, disciplining or resignation of a salaried public official or employee in a closed meeting. 25 O.S. § 307.B.1.
- The Oklahoma State Board of Medical Examiners may hold more than the minimum of two meetings per year to consider disciplinary hearings if the notice requirements of 59 O.S. § 488 and the Open Meeting Law are met. 1977 OK AG 251.
- The Oklahoma State Board of Public Accountancy is required to deliberate openly following a hearing on a complaint brought against a registrant for disciplinary action. The State Board of Public Accountancy may not confer in executive session with its attorney on legal issues raised during the conduct of an open hearing on disciplinary complaint. 1979 OK AG 32.
- “Job Content Evaluation Committees” created under 62 O.S. §§ 7.9 et seq.are “public bodies” within the meaning of the Open Meeting Act. 1981 OK AG 214.
- The “Council on Judicial Complaints” created under 20 O.S. §§ 1658 et seq.is covered under the Act except when “conducting, discussing or deliberating any matters relating to a complaint received or filed with the Council.” 25 O.S. § 304.1. The statute attempted to impose penalties against any complainant, witness or judge for disclosing any information about the complaint or testimony given in the proceedings but the Attorney General ruled such restrictions were unconstitutional. 2000 OK AG 15.
3. Dismissal, considering dismissal of public employees
Governing bodies may go into closed session to discuss dismissal of an employee. 1968 OK AG 231. However, a public body may not dismiss an employee on a vote taken outside the public meeting or within an executive session. 1981 OK AG 69.
O. Real estate negotiations
Public bodies may discuss the purchase or appraisal of real property in executive session. 25 O.S. § 307.B.3. An executive session is limited to the members of the public body, its attorney and staff. No landowner, broker, developer or any other person who may profit directly or indirectly from the proposed transaction may be present or participate in the executive session. 25 O.S. § 307.D.
P. Security, national and/or state, of buildings, personnel or other
A public body may hold executive sessions to discuss investigations into plans, schemes or acts of terrorism, assessments of vulnerability of government facilities to acts of terrorism and/or discussion of plans to prevent or respond to acts of terrorism. 25 O.S. § 307.B.9.
Q. Students, discussions on individual students
Governing boards of state operated institutions of higher education may not hold executive sessions to hear evidence and discuss student disciplinary matters which may come before it. 1981 OK AG 135.
IV. Procedure for asserting right of access
A. When to challenge
1. Does the law provide expedited procedure for reviewing request to attend upcoming meetings?
The Act does not provide for an expedited procedure to challenge exclusion from a future meeting. The two available means of relief would be to seek an injunction in District Court or to seek a writ of mandamus from the State Supreme Court.
2. When barred from attending
For any violation of the Act, such as a member of the public being barred from attending an open meeting, any person may bring a civil suit for declarative or injunctive relief, or both; and if successful, shall be entitled to reasonable attorney fees. 25 O.S. § 314. Additionally, actions taken in violation of the Act may be declared invalid. 25 O.S. § 313.
3. To set aside decision
Actions taken in violation of the Act may be declared null and void. See, e.g., In re Appeal of the Order Declaring Annexation Dated June 29, 1978, supra (invalidateding action of board taken in violation of Open Meeting Act); Wilson v. City of Tecumseh, 2008 OK CIV APP 84, 194 P.3d 140 (upholding trial court’s conclusion that vote to pay City Manager bonus was null and void because not properly noticed on agenda); Okmulgee County Rural Water Dist. No. 2 v. Beggs Public Works, 2009 OK CIV APP 51, 211 P.3d 225 (holding water contract invalid because approved by the Public Works Authority without being properly noticed on agenda).
4. For ruling on future meetings
If a person is able to have the appropriate government agency or official make the request, an Attorney General ruling could be obtained on the legality of a meeting of a public body. See 74 O.S. § 18b(e). If a controversy exists and is continuing, then declaratory relief could be available. See 12 O.S. §§ 1651 et seq.
5. Other
While it is a long process, the citizen may lead a petition drive to convene a grand jury to investigate denial of access. Okla. Const. Art. 2, § 18.
B. How to start
1. Where to ask for ruling
a. Administrative forum
The Oklahoma Administrative Procedures Act may present an opportunity for challenging the denial of access to an agency proceeding. Such complaint would first be made with the agency. After an order has been entered denying the access, that order would be appealable to the District Court. However, any violation of the Act entitles a person to directly bring a civil suit for declarative or injunctive relief, or both, in the District Court. 25 O.S. § 314.
b. State attorney general
The Attorney General may issue advisory opinions upon questions of law submitted by certain state officials. 74 O.S. §§ 18b.(d), (e). The public officer with notice of the ruling is bound by it until relieved of the ruling by a court of competent jurisdiction. Pan American Petroleum Corp. v. Board of Tax-Rolle Corp., 1973 OK 52, 510 P.2d 680.
c. Court
The Oklahoma Open Meeting Act confers a private right of action on the part of any member of the general public who claims to be aggrieved by the actions of a public body. Rabin v. Bartlesville Redevelopment Trust Authority, 2013 OK CIV APP 72. Such actions would be brought before the District Court.
2. Applicable time limits
The statute of limitations for such a suit is two years. 12 O.S. § 95.
3. Contents of request for ruling
There are no guidelines for requesting access. If such a request is made, then it should contain a description of the meeting a person seeks to attend and the reasons why that meeting should be open.
4. How long should you wait for a response
The Act does not address this. But if one anticipates being excluded from a hearing, then the response time should be short to allow time to file an action in district court.
5. Are subsequent or concurrent measures (formal or informal) available?
If possible to do in advance, it is always advisable to request access to a meeting to which one has reason to believe he will be excluded. Once denial is given, then the person can proceed to district court.
C. Court review of administrative decision
1. Who may sue?
The Oklahoma Administrative Procedures Act (OAPA) may present an opportunity for challenging the denial of access to an agency proceeding, but the Oklahoma Open Meeting Act does not specifically address administrative remedies. A complaint pursuant to the OAPA would first be made with the agency. After an order has been entered denying the access, that order would be appealable to the District Court. However, any violation of the Act entitles a person to directly bring a civil suit for declarative or injunctive relief, or both, in the District Court. 25 O.S. § 314.
2. Will the court give priority to the pleading?
There is no particular provision allowing for an expedited proceeding.
3. Pro se possibility, advisability
It is possible to proceed pro se if one has a grasp of the wording in the Act: what is a “public body,” what is a “meeting,” etc. However, the Act does not specifically provide for civil relief. Therefore, the petition must be drafted to seek either injunctive or declarative relief in district court, or possibly a writ in the State Supreme Court. It would be advisable to engage legal help in pursuing such a course to ensure that the procedural guidelines are followed. Otherwise, the action could be dismissed without ever reaching the substantive issue.
4. What issues will the court address?
Whether a violation of the Act occurred.
a. Open the meeting
No cases have been reported concerning the opening of a meeting.
b. Invalidate the decision
Actions taken in violation of the Act may be declared null and void. See, e.g., Hayworth, supra (board hiring of superintendent invalidated because not listed on agenda); Order Declaring Annexation, supra (vote on annexation invalidated because vote not called in compliance with Act); cf. City of Bixby v. State ex rel. Dep’t of Labor, 1996 OK CIV APP 118, 934 P.2d 364 (upholding city’s hiring of an employee during a meeting which violated the Act when the employee’s contract was not approved until a later meeting held in compliance with the Act). A vote taken on an item not listed on the agenda for the public meeting is a willful violation of the Act and is invalid. 2000 OK AG 7.
c. Order future meetings open
Oklahoma law does not address this issue.
5. Pleading format
There is no specific civil relief provided in the Act. To plead a cause of action, the petition should contain a statement showing that: the defendant is a public body, the wrongful action was part of the public meeting process, and the defendant’s action violated a specific provision of the Act—e.g., lack of agenda, failure to give notice, inadequacy of notice, unauthorized executive session. Any action taken in willful violation of the Open Meeting Act “shall be invalid.” 25 O.S. § 313. Willful is defined “to include any act or omission which has the effect of actually deceiving or misleading the public regarding the scope of matters to be taken up at the meeting. This would also include agency action which exceeds the scope of action defined by the notice.” 2000 OK AG 07.
6. Time limit for filing suit
There is no time limit specified by statute. Thus, the only applicable limit would be the statutory two-year limit for non-specifically enumerated torts. 12 O.S. § 95.
7. What court?
The action should be commenced in district court.
8. Judicial remedies available
12 O.S. § 1651 (declaratory relief); 12 O.S. § 1451 (mandamus); 12 O.S. § 1381 (injunction).
9. Availability of court costs and attorney's fees
There is no provision within the Act for awarding attorney’s fees. Thus, costs and attorney’s fees would have to be awarded at the discretion of the court. See 12 O.S. § 927.
10. Fines
Upon conviction in a misdemeanor action, a public official may be fined up to $500. See Hillary, supra.
11. Other penalties
Upon conviction of a misdemeanor, a public official may be imprisoned up to one year in the county jail. See Hillary, supra.
D. Appealing initial court decisions
1. Appeal routes
All final orders are appealed to the Oklahoma Supreme Court. 12 O.S. § 952. The Supreme Court may reassign the case to the Court of Appeals.
2. Time limits for filing appeals
Petition in error must be filed within thirty (30) days from final judgment or order. 12 O.S. Ch. 15, App. 2, Rule 1.15(a).
3. Contact of interested amici
Amicus briefs may be filed by consent of the parties or by leave of the Chief Justice of the Supreme Court. The amicus curiae must file a statement not exceeding five pages disclosing the nature of the interest, the factual or legal questions which are not adequately addressed by the litigants and the relevancy of the factual or legal questions to the disposition of the case. Upon showing of extraordinary circumstances, the amicus curiae may be allowed to participate in oral arguments. 12 O.S. Ch. 15, App. 2, Rule 1.28a.
The Reporters Committee for Freedom of the Press often files amicus briefs in cases involving significant media law issues before a state’s highest court.
V. Asserting a right to comment
A. Is there a right to participate in public meetings?
According to the Oklahoma Attorney General: Neither the Open Meeting Act nor “the First Amendment to the United States Constitution provides an opportunity for citizens to express their views on issues being considered by a public body, but a public body may voluntarily choose to allow for such comments.” 2002 OK AG 26; see also 1998 OK AG 45.
B. Must a commenter give notice of intentions to comment?
There are no specific rules on this issue. However, once a public body voluntarily establishes an open forum, it may establish the conditions and restrictions on such speech subject to reasonable time, place and manner restrictions. 1998 OK AG 45.
C. Can a public body limit comment?
When a public body voluntarily establishes an open forum, then any content-based restriction must be narrowly drawn to effectuate a compelling governmental interest, applying principles contained in the First Amendment to the United States Constitution. 1998 OK AG 45. A public body may, however, limit public comment to items listed on the agenda. If no limits are placed on the subject matter of public comment, then an agenda item for “public comments” is sufficient notice that citizens may speak on any issue. 2002 OK AG 26.
D. How can a participant assert rights to comment?
According to the Oklahoma attorney general, participants do not have a right to comment: Neither the Open Meeting Act nor “the First Amendment to the United States Constitution provides an opportunity for citizens to express their views on issues being considered by a public body, but a public body may voluntarily choose to allow for such comments.” 2002 OK AG 26; see also 1998 OK AG 45; 2004 OK AG 44.
E. Are there sanctions for unapproved comment?
In Oklahoma, it is potentially a misdemeanor criminal offense for a person to willfully disturb, interfere with, or disrupt state business, political subdivisions, agency operations, or employees. 21 O.S. § 280 states:
“A. It is unlawful for any person, alone or in concert with others and without authorization, to willfully disturb, interfere or disrupt state business or the business of any political subdivision, which includes publicly posted meetings, or any agency operations or any employee, agent, official or representative of the state or political subdivision.
- It is unlawful for any person who is without authority or who is causing any disturbance, interference or disruption to willfully refuse to disperse or leave any property, building or structure owned, leased or occupied by state officials or any political subdivision or its employees, agents or representatives or used in any manner to conduct state business or any political subdivision’s business or operations after proper notice by a peace officer, sergeant-at-arms, or other security personnel.
- Any violation of the provisions of this section shall be a misdemeanor punishable by imprisonment in the county jail for a term of not more than one (1) year, by a fine not exceeding One Thousand Dollars ($1,000.00), or by both such fine and imprisonment.
- For purposes of this section, ‘disturb, interfere or disrupt’ means any conduct that is violent, threatening, abusive, obscene, or that jeopardizes the safety of self or others.”
