(Edited for length and clarity)

Oklahoma Watch journalists discuss their recent and upcoming stories in this Sunshine Week edition of Long Story Short: Trevor Brown on how Oklahoma legislators maintain an exemption from the state’s open record and open meetings law; Keaton Ross on why portions of the state’s lethal injection execution protocols remain secret; Jennifer Palmer on her interview with state Auditor & Inspector Cindy Byrd. Ted Streuli hosts.

A Transparency Bill With No Traction

Legislators applaud during Gov. Stitt’s State of the State address at the capitol on Feb. 7, 2022. (Whitney Bryen/Oklahoma Watch)
Ted Streuli

Ted Streuli: Welcome to Long Story Short sponsored by the Kirkpatrick Foundation. I’m Ted Streuli, the executive director at Oklahoma Watch. We’re a statewide nonprofit news organization that specializes in investigative reporting. You are listening to our weekly podcast, which lets you hear directly from our journalists as they provide deeper insight into their recently published stories in this segment. 

I’m with Trevor Brown who covers democracy for Oklahoma Watch. As part of Sunshine Week, Trevor has been looking at open records and meetings bills moving through the legislature, but he recently reported on a bill that is unlikely to pass this year. Trevor, what can you tell us about it?

Trevor Brown

Trevor Brown: So many people aren’t aware, but the legislature is not subject to the state’s open records and meetings act. That’s because they carved out a specific exemption several years ago specifically for themselves. It’s a blanket exemption. There’s a bill that would essentially remove that exemption and put the Legislature subject to the open records of meetings act.

Ted Streuli: What’s happened to the bill this year?

Trevor Brown: The bill looks like it’s dead at this point. It did not make it out of committee by a key cutoff date earlier this month. The bill was not even given a committee hearing or vote, so that means unless there are some unforeseen circumstances, this measure is dead without even getting a debate this year.

Ted Streuli: And is that unusual? Is this something our Legislature has debated before?

Trevor Brown: They’ve definitely taken up this measure before, but they haven’t really debated it too much. I was going through the records and almost every year or every couple of years, there’s a bill — sometimes from Republicans sometimes from Democrats. I think the last time it got a committee hearing was in 2015 and it did not get a House floor vote at that time. 

Ted Streuli: Is Oklahoma an outlier when it comes to that kind of legislative transparency?

Trevor Brown: Oklahoma actually ranks among the least transparent states in several rankings. That’s because Oklahoma is one of three or four states now that have a blanket exemption for these types of things. There are several other states with carve-outs and things that the public and the media can request and cannot request. But Oklahoma, it’s kind of an outlier in that there’s this blanket (exemption) and the fact that it hasn’t been challenged or been debated in recent years. It’s kind of unusual based on the direction that other states are going, moving towards transparency.

Ted Streuli: What do transparency advocates say about proposals to subject the legislature to the open meetings and open record acts?

Trevor Brown: This is something that a lot of open meeting advocates and transparency advocates have talked about for years. They say that the best public policy happens when it’s out in the open and the public can have a say and see what’s going on. I talked with Joey Senat, he is an associate professor at Oklahoma State University. And he said that when anyone in power is able to keep it in secret, that breeds the opportunity for corruption. Things that go on behind the scenes are not always up and up. And it’s usually better, they argue, for the public to have a full look at how bills are developed, how lawmakers are interacting with each other, and then how public policy and multi-billion dollar budget bills are passed and debated.

Ted Streuli So what are some of the records the state is able to keep secret because of that exemption?

Trevor Brown: There’s a lot. Lawmakers’ communications with lobbyists. Bill drafts. Model legislation that they might have used from public policy groups or other states that are subject to the open records act — where the media or the public can request that information. Things also like call logs, schedules. There’s a list of things that would be open to inspection that are not currently.

Ted Streuli: And that’s not just reporters that can inspect that, right?

Trevor Brown: These are public meetings, public records. This is not just saying what the media can and cannot see. The public is afforded all the opportunities that these laws permit for the media, too. Citizens use the open records and open meetings act to see the government’s business, which they’re funding through their taxes.

Ted Streuli: This all also applies to open meetings. So what about that side of it?

 Trevor Brown: There’s been some debate over the years. Lawmakers sometimes go into caucus retreats. There are a few notable instances in the past when the Republican House members or Democratic House members go into a closed room, they put a sign saying no one’s allowed in here. Sometimes they talk about bills. They even vote. Those types of things would not be permitted for other governing bodies like city council. They can’t have a quorum and meet and take official action, but it’s something that happens pretty frequently at the Capitol.

Ted Streuli: The legislature hasn’t let any proposals to change that go anywhere. So there’s support for keeping it the way it is. What do the supporters say?

Trevor Brown: They’re not saying too much. I reached out to a lot of legislative leaders and the committee chairman who could have decided to hear this bill this year. None of them got back to Oklahoma Watch for the story. That’s not uncommon. I was talking to some experts who said that if you’re on the other side of the debate, you really don’t want to talk about it too much because it’s hard to defend your position when you’re talking about transparency.  A Sooner Poll put out several years ago showed 85% of Oklahomans supported having the Legislature subject to these laws.

Ted Streuli: What are the chances of something like that passing next year or sometime down the road?

Trevor Brown: So I talked to some experts and their hopes are not too high unless things change. They say this is something that has to maybe spark from the grassroots. A ballot initiative could change it, or if there’s big pressure from advocacy groups and the media and government transparency advocates. But right now not many people are talking about it, so it’s not too hard for the legislature to ignore it and move on to other topics.

Ted Streuli: Don’t the House and the Senate have rules that require them to kind of mirror the open meetings and open records acts?

Trevor Brown: If you’re dealing with public money, how the Legislature and legislative staff use money, there are some provisions there. But there have been audits that the Associated Press has done, for example, in the past where they requested calendars and other information from legislative leaders and they were turned down, citing the exemption of the open records act.

What Oklahoma Won’t Disclose About Executions

The execution chamber at the Oklahoma State Penitentiary in McAlester. (Photo provided by The Oklahoman)

Ted Streuli: In this segment of Long Story Short, I’m talking to Keaton Ross, who covers criminal justice for Oklahoma Watch. And in his most recent Justice Watch newsletter Keaton examined why most lethal injection records are exempt from the state’s open records laws. Keaton, what lethal injection drug records are exempt from those laws?

Keaton Ross: Several — who manufactured the drugs, how much the state paid, the records that show the state verified that they got what they need for their protocol. All of those records are exempt.

Keaton Ross

Ted Streuli: And what’s the rationale behind those secrecy provisions?

Keaton Ross: So 10 to 15 years ago, several of the drug manufacturers that supplied U.S. states with lethal injection drugs, many of them based in Europe, stopped supplying those drugs out of ethical concerns. So states in a rush to get those drugs wanted to provide manufacturers with anonymity. And that’s where those exemptions were born.

Ted Streuli: Has access to lethal injection drug records always been restricted?

Keaton Ross: No these secrecy provisions came as the supplies were limited because of the ethical concerns in places like Europe. So the access hasn’t always been this restricted.

Ted Streuli: So why do we care? What kind of information could the public be missing out on?

Keaton Ross: The public could be missing out on information such as the expiration date of the drugs, and that’s a concern several pharmacology experts have expressed in academic papers and in interviews. If a state uses an expired drug, that could cause the execution to go awry. I believe that happened in North Dakota, as an example. They used an expired dose of Pentobarbital and it caused the execution to go south. So that’s a primary concern. And also just for the general public to know how the state is dealing with these manufacturers, how much they’re paying for the drugs, those sorts of things.

RELATED

Ted Streuli: Oklahoma has a history of using incorrect or questionable drugs for executions, right?

Keaton Ross: Correct. As recently as 2015, they used the wrong drugs and those executions did not go well at all. Of course, the Department of Corrections says they’ve updated their protocol, they’re not going to use the wrong drugs. There are several safeguards, but from the public’s perspective and the media’s perspective, not having access to these records is concerning to many parties.

Ted Streuli: Has anybody challenged the state’s secrecy provisions?

Keaton Ross: Last fall, Fred Hodara, an attorney from New York, filed a lawsuit asking the Department of Corrections to compel these records. He filed his open records request, I believe, in May of 2020, and went through a year and a half of going back and forth with them. And eventually, it went to a district judge in Oklahoma County. So that’s, that’s how that started.

Ted Streuli: And what was the result?

Keaton Ross: The judge ended up siding with the state, saying Hodara didn’t meet the necessary legal burden to compel the state to release those records.

Ted Streuli: Why do courts generally rule on the side of corrections officials in those cases instead of the public?

Keaton Ross: Corrections officials generally will argue that if there aren’t these secrecy provisions, there can be no executions or it will be much more difficult to get the drugs for executions because these companies would be subject to scrutiny or protests or those sorts of things from anti-death penalty advocates. So courts will generally side with the state so they can carry out what lower courts have ordered — in this case, the sentence of death.

Ted Streuli: So if the companies selling the lethal (injection) drugs to the state were to be revealed, they’d stop selling them to the state. And that’s the crux of most of that?

Keaton Ross: Correct. A recent example of that is in Alabama. I believe Alabama is getting ready to use nitrogen gas for executions. They found a supplier. That supplier was revealed to the public and then they pulled out. So that would be probably the concern of the state if these secrecy provisions were to be rolled back.

A State Official’s Lean Toward Transparency

In this October 1, 2020 file photo, State Auditor and Inspector Cindy Byrd discusses details about an investigation into Epic Charter Schools. (Whitney Bryen/Oklahoma Watch)

Ted Streuli: In this segment, I’m talking to education reporter, Jennifer Palmer. Jennifer, you recently talked to Cindy Byrd, Oklahoma state auditor and inspector, for Sunshine Week. What made you want to do a profile on Cindy?

Jennifer Palmer: Talking with some of my colleagues at Oklahoma Watch about a week or so ago, we were talking about how she released the health department audit after the attorney general had said he would keep it confidential and would not release it publicly. And I thought that was very refreshing to hear a state official lean in toward transparency.

Jennifer Palmer

Ted Streuli: And so what were you curious about when you went to talk to Cindy?

Jennifer Palmer: I really wanted to know more about what drives her in her commitment to transparency and open records.

Ted Streuli: And what did you learn?

Jennifer Palmer: She talked to me about her very first job fresh out of college. She got a job at the auditor’s office and her first job there was in a county assessor’s office. She said she sat there for several weeks and saw homeowner after homeowner coming in to pay their county taxes. And it really drove home for her that these are hardworking people and the state, the government, is taking their money, requiring them to pay. And it really made her realize that she works for the people and that she has this commitment to (making) sure that agencies are spending every penny accurately and effectively.

Ted Streuli: On the education beat, in particular, you rely on records frequently for your work. How does the responsiveness of the auditor’s office compare to that of some of the other state agencies you deal with?

Jennifer Palmer: I’d say it’s really good. I did quite a bit of reporting on the Epic Charter Schools audit. They were really very fast and released not just the audit but the work papers and video interviews, audio recordings. And that was very helpful in really understanding what was going on behind the scenes with Epic and the money. They post every single audit to their website in a pretty easily defined manner, although Cindy says they’re even trying to improve on that.

Ted Streuli: As a result of the transparency of her office what’s the public been able to learn?

Jennifer Palmer: There were quite a few things in the Epic audit that came to light. A quarter of the funding they received for public schools went into this private management company. I don’t think the public or even reporters like myself realized the extent of that until that audit came out. It really drove home (Epic’s) hands-off board of directors. The audit talked about how some of these large transactions were made without board approval. And then, the health department audit that came out recently had some eye-opening things as well — millions of dollars spent on goods that the state has never received.

Ted Streuli: And what else does, does Auditor Byrd have in the pipeline at the moment?

Jennifer Palmer: A couple of big ones. Her office is working on an audit of the Western Heights school district. That school district has had a lot of issues with governance and the state actually took it over last year. There’s an audit of the state Department of Education that Gov. Kevin Stitt has asked for. So that is coming, and I believe there’s part two of the Epic audit. There were some records related to student activity funds that her office had not yet gotten access to when the first audit came out. And so they’re planning to do a part two.

Ted Streuli: Last year you resolved to rely even more heavily on public records in your research. Tell us how that went.

Jennifer Palmer: I made a commitment early last year to really up my game a little bit on my record requests. I surpassed 50 in 2021, which was a new high for me. And some of those are now trickling in, so I’m getting to see some of those records that I worked really hard to get last year.

Ted Streuli: And how about this yea so far?

Jennifer Palmer: I am on track to maybe meet that goal again. I will need to step it up a little bit, but yeah, I’m definitely hoping to stay around 50.

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