Oklahoma’s attorney general joined top law enforcement officers in 13 other states this month in suing the Biden administration over delays in getting information under the federal Freedom of Information Act.
But in Oklahoma, the state’s transparency law doesn’t have defined time limits for responses by state and local governments, leading to protracted delays for many requesting public records. On the flip side, those in charge of finding and providing public records have pointed to overly broad requests and inadequate staffing or funding as causes of many delays.
The state’s guidance under the Oklahoma Open Records Act is a “prompt and reasonable” standard, which in practical terms can mean anything from the same day to weeks, months or even years depending on the complexity of the request.
“I think we’ve reached the point where everyone’s frustrated,” said Mark Thomas, executive vice president of the Oklahoma Press Association. “The records requestors are frustrated because seemingly simple requests take longer than they think they should or come in a format that’s unusable. Records custodians are equally frustrated by requests that are vague, overly broad or sometimes detached from any perceptible purpose.
“I call it the ‘CSI’ effect, where you see on TV the police solving three murders in 30 minutes. People expect (that) if I make a request for five years’ worth of emails, you should be able to get it to me in half an hour.”
Thomas said much of the state’s Open Records Act, which dates to 1985, hasn’t kept pace with advances in email, video and digital storage. That has led to lawsuits like one in Custer County over whether a sheriff could email records to an out-of-state requestor or if the records should be printed and picked up in person.
Attorney General John O’Connor, who was appointed to the office in July by Gov. Kevin Stitt, joined 13 other Republican attorneys general in a lawsuit over delays in getting records from the federal government. The attorneys general want internal records of discussions over the proper use of law enforcement authorities to monitor allegations of intimidation or violence against school officials or at local school board meetings.
The federal law allows a requestor to sue the government to compel the release of records after 21 business days.
In court filings, the attorneys general said they filed Freedom of Information Act requests in late October with the Justice Department, the White House and the Education Department. By early March, only the Education Department had confirmed receipt of the request and followed up for clarification, although it had yet to provide records.
Oklahoma Watch filed an open records request on March 7 with the attorney general’s office for a list of records requests it received since July. The attorney general has not yet fulfilled that request.
O’Connor’s office currently has 50 pending requests for open records, said Rachel Roberts, director of communications.
“The overwhelming amount of pending requests were received in the past few months and the latter part of 2021,” Roberts said in an email. “All 2020 files have been closed out besides one remaining outlier. Each request requires a varied amount of time depending on its nature and the scope of the search involved.”
Former Attorney General Scott Pruitt, who left office in 2017 to become administrator of the Environmental Protection Agency under former President Donald Trump, was rebuked by an Oklahoma County district judge for taking more than two years to fulfill some records requests.
The case involved emails requested by the Center for Media and Democracy in 2015 between Pruitt’s office and energy companies and trade associations.
“My question to you is, what explanation do you have as a state agency for taking two years to respond and turn over any documents at all?” District Judge Aletia Haynes Timmons asked an assistant attorney general in a February 2017 hearing.
Timmons ordered the release of most of the records. Pruitt’s office at the time claimed some of the documents were allowed to be withheld and asked the court to privately inspect them to make sure.
Those types of delays are unsurprising to Nick Brooke, an Oklahoma City resident and data scientist who asked for emails between the Oklahoma State Department of Health and the governor’s office in the early weeks of the coronavirus pandemic in 2020. Brooke sued the health department and is still waiting for all the records he requested. Brooke is representing himself in the lawsuit. (Oklahoma Watch featured Brooke in a story last year.)
The health department is being represented by the attorney general’s office in the lawsuit and several attorneys have handled the state’s case at various times. Brooke said that has caused several delays as new attorneys tried to get up to speed and find a consistent strategy.
“It’s gotten to the point where I’m trying to make it clear to the court how thoroughly I’m getting jerked around,” Brooke said. “This whole process, they’ve tried to delay and delay and delay.”
The next hearing in his case is April 19. Brooke said he expects the state to appeal if it loses but questions why a state agency is fighting so hard to withhold records.
“To them, I probably look like a crank, and if I was working on an attorney’s schedule, this would not be very high up on my list,” he said. “But that was also the point because I was hoping to fly under the radar. I do think this is a very important issue to resolve. State agencies are jerking reporters around about this all the time and it needs to stop.”
Thomas, with the press association, said he’s hoping to convene several working groups this summer and fall to work on refining the processes for open records requests to present to lawmakers ahead of the 2023 legislative session. Participants would include members of the public, lawmakers, cities, counties, schools and government transparency groups.
“It’ll be messy. But I think everybody who’s going to get around the table has to think differently than we do now,” Thomas said. “Public records are a public good. The basic standard of why we need and have public records shouldn’t change, but the process by which we request and receive them needs to be modernized.”
He said several bills limiting access to public records in this year’s session have been put aside after objections from the public or the media. They include a pair of bills proposed by Sen. Tom Dugger, R-Stillwater. Senate Bill 1272 would have increased fees charged for public records. SB 1256 would have curtailed access to some law enforcement records. Last week, Rep. Jim Grego, a Wilburton Republican, said he wouldn’t pursue House Bill 3475, which would have allowed records custodians to deny requests if they decided they were “excessively disruptive.”
“Transparency has no letter behind its name,” Thomas said. “Government is not them versus us. The government is us; we are a self-governing people. It’s a hard problem, but it’s a problem we’re just going to have to try and solve because everybody’s getting increasingly frustrated.”
Paul Monies has been a reporter with Oklahoma Watch since 2017 and covers state agencies and public health. Contact him at (571) 319-3289 or firstname.lastname@example.org. Follow him on Twitter @pmonies.