Posted in Uncategorized on November 27, 2012
The Tulsa World reported today about the Oklahoma Open Records Act, 51 O.S. Sec. 24A.1 et seq., and how enforcement of the Act is generally left to the citizen requesting records. The World could only locate two cases in the past 10 years where a local district attorney pursued criminal charges against a local official for failure to comply with the Act, once in Grove and once in Boyton.
While the Act generally provides citizen access to governmental records unless protected by an exemption, the Act permits public bodies to shield certain deliberations from the public in what is known as an executive session. Such sessions are generally permitted to discuss sensitive matters than may involve litigation, employment matters or purchasing. However, while a public body may sequester itself to deliberate on such matters, the Act also requires a public body to record and maintain minutes of its proceedings.
Given the private nature of executive sessions, many public bodies may believe that the Act does not require it to keep or maintain minutes of an executive sessions because those records are not generally available under the Act. However, those public bodies may be surprised to learn that the Oklahoma Supreme Court resolved this question years ago in Berry v. Bd. of Governors, 611 P. 2d 628 (Okla.1980) and held that “Although the municipal attorneys’ case permits executive sessions on the advice of counsel in certain specified instances, it does not abrogate the statutory requirement that minutes be kept and recorded.”
The Court’s decision reflects the reality that communication during an executive session, convened for an improper reason, is subject to public disclosure. If the Act permitted the public body to dispense with the requirement that minutes be taken, the public would then be deprived of a formal record detailing the public business.
To avoid liability and criminal prosecution, public bodies should ensure that minutes are always taken of any meeting, regardless of its nature. For more information, speak to our top-rated attorneys at Bryan & Terrill today.