Oklahoma Watch reporters provide deeper insight into their recent or upcoming stories: Paul Monies reports on Oklahoma’s challenges with timely responses to public records requests; Whitney Bryen discusses her revelation that at least 537 unreported nursing home deaths from COVID; Rebecca Najera explains why Sen. George Young wants to create a Race and Equality Commission and the resistance he’s encountered. Ted Streuli hosts.
Public Records: What’s a ‘Prompt and Reasonable’ Time For Meeting Requests
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 of Long Story Short, I’m talking to Paul Monies who covers state government for Oklahoma Watch. As part of last week’s Sunshine Week stories on government transparency, Paul looked at a persistent problem with the state’s Open Records Act: the lack of defined time limits for responses by state and local government. Paul, what prompted you to take a look at this particular part of the Open Records Act?
Paul Monies: This has been an issue for me as a requester for quite a while. But what really prompted the story was a couple of weeks ago, the state’s attorney general John O’Connor joined 13 other attorneys general and sued the Biden administration under the federal Freedom of Information Act.
Ted Streuli: How does the state’s guidance on time limits for responses differ from those in federal law?
Paul Monies: There’s a big difference because Oklahoma’s standard is prompt and reasonable, which obviously means different things to different people depending on which side of the issue you’re on. With the federal guidance, there are several timelines, but the main one is the agency you’re requesting records from has to respond within 21 days in some way —that doesn’t mean giving up the records. And then there’s an extra kind of 10-day business day window too. So that’s what the attorney general did in his lawsuit. He used the federal timelines to sue after not getting records from the Biden administration.
Ted Streuli: Your story mentioned that there’s plenty of frustration from both the requesters of public records and the government officials charged with finding and providing those records. How did it get so bad?
Paul Monies: When the Open Records Act was enacted in 1985, that was kind of the compromise they made at the time — this prompt and reasonable standard. That was made to give some grace on both sides of the issue. There’s no defined time limit. If there had been a 20-day time limit, pretty much everything would’ve lasted at least 20 days for request. That was put in as a compromise, but over time either lack of resources or lack of attention to the law by government agencies has eroded that feeling of prompt and reasonableness. Some requesters have seen that they get ignored sometimes, unfortunately, unless they actually finally file a lawsuit, which costs money.
Ted Streuli: How do other states handle response times?
Paul Monies: Several states have defined limits. They range from three to five business days to seven days to three weeks. It’s really kind of the gamut across the states. Some states do a dual track in terms of the complexity of the request. Simple grabbing a document or a budget document after a meeting would be one kind of track and then more complex ones like emails over a period of time to pull from a system would be another track. That’s something that we’ve looked at here in Oklahoma, but nothing’s been enacted of course.
Ted Streuli: Has there been any legislation proposed this year that would’ve changed that standard?
Paul Monies: Sen Julia Kurt of Oklahoma City had a bill that basically said agencies should respond within five business days to any request. But unfortunately, that bill did not get a hearing out of committee and is basically dormant right now in the legislature.
Ted Streuli: Did her bill require the responder to produce the records within five days?
Paul Monies: No. It was just a response within five days or a reason why they couldn’t get it within that time limit.
Ted Streuli: Your story had some extreme examples of very long waits for records, some two years or more after they were requested. What happened in those instances?
Paul Monies: We highlighted a couple of cases. One with the former Attorney General Scott Pruitt, which was several years ago. His office had received a request in 2015 from a watchdog group in Wisconsin, looking for emails from his office to energy companies (and) energy trade associations. They basically responded and then said nothing for two years and so they took him to court. In fact, his office at the time was rebuked by an Oklahoma County district judge, saying you can’t go two years and not say anything to a requester. They basically ordered him to give up the records at that time. And then we also highlighted a case of Nick Brooke, who was an Oklahoma City resident. We talked to him last year for Sunshine Week. He had filed in the early days of the pandemic in 2020 to get some records from the health department. He went to court soon afterward and is still litigating with the state health department on that issue right now.
Ted Streuli: What solutions are being proposed to help address some of those long waits for public records?
Paul Monies: There are lots of ideas out there. We talked to Mark Thomas, who’s the executive vice president of the Oklahoma Press Association. Obviously, he’s seen this issue firsthand at the Capitol, talking to lawmakers, talking to people who are having problems with the law from the public side too. He is planning on convening a series of groups this summer and fall to take a wholesale look at the process by which we do this. He said it’s going tp be pretty messy, involve all kinds of groups — from all sides of government to public watchdog groups, transparency groups — and try and get a better process in place. He just says there’s just a ton of frustration right now.
Why Oklahoma’s Miscount of Nursing Home COVID-19 Deaths Matters
Ted Streuli: In this segment of Long Story Short, I’m with Whitney Bryen, who covers vulnerability for Oklahoma Watch, and few were more vulnerable to COVID-19 than nursing home residents. While reporting on the state health department’s plan to change the way it collects and publishes COVID nursing home data, Whitney found 537 resident and staff deaths were missing from state reports. Whitney, how did you discover that the state total was short?
Whitney Bryen: The state had stopped collecting its own data and started reporting data from the federal agency that oversees those nursing homes. And so when I pulled the federal data to see what they had been collecting, I knew immediately there was a big discrepancy each just by looking at that total number. It turned out that the state had been missing about 512 nursing home resident deaths and about 25 staff deaths from its reports.
Ted Streuli: How did the state miss so many deaths?
Whitney Bryen: State officials said they knew that their numbers were inaccurate because they’re relying on individuals and families to report that information. So anytime a positive COVID test was reported to the state health department, they had investigators who literally called every single person on those forms to ask questions about their positivity, for instance, whether they live in a high-risk setting, like a nursing home. So if that person doesn’t answer the phone or didn’t want to talk to them or didn’t return a call, then they were just left out of the data completely.
Ted Streuli: What’s the fallout from putting out such low inaccurate numbers?
Whitney Bryen: A lot of folks were relying on state data to make decisions about what they should and shouldn’t be doing during COVID. So data was being used for instance, by the governor and by mayors to make decisions about mass mandates and other COVID precautions. Families who have loved ones in these facilities relied on that data to decide whether or not they could visit a nursing home. Before the nursing homes reopened — they were locked down for so long during COVID —yThey relied on that information to know what was happening to the facility that their loved one was in. A lot of times, staff were so busy just trying to keep up with outbreaks and literally keeping people alive that they didn’t have enough time to answer the phone when a family member called to ask how things were going.
Ted Streuli: You found those missing cases by looking at federal data. Is that data any more reliable than the state data?
Whitney Bryen: The federal agency that regulates nursing homes is the Centers for Medicare and Medicaid Services. They actually require nursing homes to report their COVID cases and deaths on a weekly basis. They’re also tracking things like vaccinations by facility and whether or not they have a staff shortage since COVID. There’s a lot of information being collected and nursing homes that are not reporting face penalties that could affect their federal funding. So they definitely have an incentive to report accurate information to this agency.
Ted Streuli: That’s still a huge task. Are there any gaps in the federal data?
Whitney Bryen: Absolutely. This kind of reporting is completely new to every agency and every nursing home that’s having to report. COVID was unprecedented and this kind of reporting is as well. So there are still many challenges. For instance, there’s a retired farmer who lived at Beadles Nursing Home in Alva. He died in February after having COVID for the second time and had been out of quarantine for about two weeks before he died. So the nursing home did not report his death as a COVID death because he had tested negative for COVID before he passed away. But the nursing home administrator said he saw his death certificate last week and that showed COVID was the cause of death. So now he has to go back and change that information. But a lot of administrators don’t see those death certificates, so they may never know that a death was misreported.
Ted Streuli: Is the federal database tracking every long-term care facility in the state?
Whitney Bryen: The federal data database is only tracking nursing homes. So nursing homes make up about 300 of our facilities here in the state, but we have 660 total. So that includes things like assisted living facilities, retirement communities, veteran centers, which had some of the state’s worst outbreaks during COVID. So those facilities are not being captured by federal data. And the state is saying that they’re no longer tracking individual cases in those facilities either. So that means Oklahoma will never have information on those facilities going forward.
Ted Streuli: And we’re two years into the pandemic. This month, what’s been the toll on nursing homes so far?
Whitney Bryen: Nursing homes are reporting 17,346 COVID infections since March of 2020. And we know at least 2,375 residents and 47 staff have died in those facilities.
Ted Streuli: We’ve talked a lot about numbers and data because we’re Oklahoma Watch and we love data. But what’s the takeaway from all that?
Whitney Bryen: The takeaway is that Oklahomans never really had a full and accurate picture of COVID’s toll on our long-term care residents and staff. And now that the state is easing up on its data collection, we’re never going to know how many people were lost to the pandemic across these facilities.
Ted Streuli: It sounds from what you found as though it’s going to be underreported no matter how we look at it.
Whitney Bryen: Absolutely. You might have heard earlier when I was rattling off the total numbers, I said, at least this many residents and that’s because again, even the federal agency is not gonna get this 100% accurate because nursing homes themselves have a lot of challenges in reporting these deaths. It’s really tough to get an absolute, 100% accurate count of this. But certainly, the federal data seems to be a lot more accurate so far than what we were getting from the state.
Does Oklahoma Need a Race Commission?
Ted Streuli: In this segment of Long Story Short, I’m talking to Rebecca Najera, who covers race and equity for Oklahoma Watch. State Sen. George Young, an Oklahoma City Democrat, has tried to pass legislation that would create a statewide commission on race and equality. He’s tried to do that multiple times, but it has yet to gain any traction. Rebecca talked to Sen. Young about what that commission would look like and why he and others think the state needs one. Rebecca, could you explain what the commission on race and equality is?
Rebecca Najera: Most recently it was proposed with Senate Bill 1204. The commission would be made up of 30 members. Some would be appointed by the governor, some by the senate pro tem, speaker of the house of representatives and the legislative Black caucus. And what this commission would do is meet once a month or every other month to allow Oklahomans to come forward with any issues or complaints they have when it comes to race and equality. It would also act as an advisory board when it comes to these issues and it would monitor legislation to make sure nothing is being passed that could be discriminatory toward any specific race. And it would also hold meetings and seminars that support its mission.
Ted Streuli: Why do Sen. Young and others feel the state needs something like that?
Rebecca Najera: Sen. Young has received complaints from constituents when it comes to not only things like law enforcement and criminal justice, but other state agencies like the Department of Human Services, where people have felt they’ve been treated differently based on their race. Last fall, I actually attended a Senate Appropriations Committee meeting where Young had proposed a commission and he had had three people give presentations to support the argument for one. The first one was a doctor. She actually attended by Zoom. I think she delivered a baby before or right after, so she couldn’t be there in person. But one of the main things she talked about was medical and health disparities among the Black community and how Black women experience more complications when it comes to childbirth here in Oklahoma and have a higher maternal death rate. Another speaker was a teacher who talked about how different opportunity levels and educational levels vary from school to school. And then another person talked about Oklahoma’s racial wealth gap and economic disparities. And then all of these were backed up with data to support their arguments.
Ted Streuli: What are the obstacles that keep those bills from going forward?
Rebecca Najera: When I attended that meeting, I talked to Young and he had actually told me about how he proposed it multiple times. But this time around, it just didn’t receive a hearing. He said he thinks the committee chairs don’t really seem pressed to add it to the docket. He first proposed this legislation after George Floyd’s murder in 2020. And he feels like others may see bills talking about race may be too controversial. Something he did bring up to me though was the Holocaust Education Bill that was in the news these last few weeks. Obviously, that’s something that had a heavy impact on people. But he said something along the lines of “if we can pass legislation related to something that happened decades ago and had an effect on people, one would think we could pass legislation on issues that affect people to this day,” but people just seem to act like there aren’t race issues here in Oklahoma.
Ted Streuli: How would it work? How would people voice their complaints to the commission?
Rebecca Najera: The meetings would be held once a month or once every other month people could attend in person to voice their complaints or they could submit a written report. Then the committee could also call those people back to give their account before the board. And then if the commission sees that it’s something to be investigated, they’ll do so. If it ends up being a policy issue, lawmakers are the ones who created the board. So it kind of serves that issue on a plate for them to take a look into.
Ted Streuli: How about other states? Are there any similar commissions out there? What do those look like?
Rebecca Najera: That’s part of the reason why Young thought he could get some legislation passed in 2020, because others did adopt similar legislation after George Floyd was killed. For example, Kansas’ governor issued an executive order that created the Governor’s Commission on Racial Equity and Justice, and their commission kind of functions the same way Young’s would. It’s just made up of different people. So like a judge, chief of police people from the DA’s office. I spoke to the co-chair. She is actually the superintendent for Topeka Public Schools. So it’s people from all different walks of life.
Ted Streuli: And those commissions in other states, do they have a track record? Have they made a difference?
Rebecca Najera: Dr. Anderson, the woman I talked to, said that the (commission) has held different listening sessions and educational webinars and has provided the yearly reports. The most recent report came back came out in December. One of the biggest things that stood out to me was her saying it’s difficult to have transformation and change if you don’t have the conversation and everything doesn’t have to become a law overnight. So the reports were divided into things on the legislative level, but also things at the local municipal level and things that you can do within your community. And an example of some legislation past is a bill where the attorney general has to coordinate with law enforcement for training whenever it comes to missing and murdered indigenous people, which is something Oklahoma could look at, given that we have a large indigenous population as well.