Oklahoma: The story behind the score
By Ziva Branstetter
The story goes that the state seal of Oklahoma was smuggled out of Guthrie, the original capital, in the dark of night, hidden in some dirty laundry or possibly wrapped in brown paper.
The hastily arranged operation on June 12, 1910 that moved the state capital to Oklahoma City set the state on a path that it is still traveling today in regard to transparency. Oklahoma has a populist streak in principle, but power often remains tightly held in the hands of a few who prefer doing the public’s business in the dark. Those few serve a population that now totals nearly 3.8 million.
While Oklahoma has an inclusive open records law, a variety of forces have been chipping away at the public’s right to know in recent years. Exemptions to the state Open Records Act have combined with lax enforcement and underfunded ethics agencies to create a recipe with potential for corruption.
And so Oklahoma ranks 38th with a grade of D and a numerical score of 64 percent from the State Integrity Investigation, a collaborative project of the Center for Public Integrity, Global Integrity and Public Radio International. No state received an A.
Access to records
The Oklahoma Open Records Act, first passed by state lawmakers in 1985, contains sweeping language that seems to put the state far ahead of others in regard to information access.
“It is the public policy of the State of Oklahoma that the people are vested with the inherent right to know and be fully informed about their government,” the law states.
It continues by stating that the act’s purpose is “to ensure and facilitate the public’s right of access to and review of government records so they may efficiently and intelligently exercise their inherent political power.”
The law is theoretically inclusive, essentially assuming records are open unless otherwise closed by statute and requiring “prompt, reasonable access” to records. However, key loopholes were created in the original law, particularly exemptions for the legislature and judiciary.
The Department of Human Services, which investigates allegations of child abuse, also has many exemptions to open records laws. The agency has been criticized for its high level of secrecy, which some say harms instead of protects children.
Additionally, under the law, law enforcement agencies “shall” provide a list of just eight types of law enforcement records. The rest they “may” provide. The narrow law enforcement language has led to denials of many requests for records, including dashboard camera videos of the Oklahoma Highway Patrol in which troopers allegedly used excessive force.
Wayne Greene, senior writer with the Tulsa World and a journalist for more than two decades in Oklahoma, said in general, most agencies and officials are subject to open records laws. Greene expressed concern about the exemptions, however.
"The obvious exception is the Oklahoma Legislature and police. ... I think it has a chilling effect. We don’t ask for records that we know or suspect exist because in a confrontational situation we know they wouldn’t be given to us."
Mark Thomas, executive vice president of the Oklahoma Press Association, says he is concerned about the law enforcement exemptions. However, Thomas said the exemptions for the Legislature and judiciary are an acknowledgement of the constitutional nature of those bodies.
"I think a better approach is to review the House and Senate rules and improve it through their own set of rules."
Delays by some agencies when responding to open records requests are also a problem.
The state Department of Human Services recently took six months to respond to a Tulsa World request. The World asked for the amounts the agency paid to settle lawsuits in cases related to children abused in its care.
The World sued the Oklahoma Highway Patrol in 2001, seeking computerized traffic stop data and other information. The suit took about eight years to resolve and ended with an order for the OHP to turn over nearly all records originally requested by the World.
Thomas noted that Oklahoma's Open Records Act does not have a specified time limit for compliance with requests. Instead, the act says officials must provide "prompt and reasonable access" to their records. Thomas said he favors this type of language over specific timetables.
"We have shied away from trying to define that time because in other states which have tried to define the time ... your request is never fulfilled until the last hour."
Finally, violations of the law are rarely enforced and the only appeal avenue is to district court, which can be expensive and time consuming.
Thomas estimated there are less than a dozen such appeals filed in courts statewide each year because citizens have to pay their own lawsuit costs.
"Maybe if you win a motion on summary judgment you can get your attorney’s fees back."
A records request by the Tulsa World for a list of all criminal charges filed in cases where the Open Records Act was violated yielded zero results.
Because the Oklahoma Legislature and lawmakers are exempt from the definition of public bodies in the state Open Records Act, the level of openness changes from year to year, depending on who holds key positions. This was particularly apparent during the redistricting process that drew new legislative boundaries.
Public hearings were held days after release of the census data, so there was no opportunity for the public to see and provide input on proposed maps. The real work of redistricting was largely done behind closed doors. There was, however, a substantial difference in transparency of the process between the state House and Senate.
The Senate, controlled by Republicans, paid a GOP operative more than $100,000 as a redistricting consultant. The 13-member redistricting committee included four Democrats.
A black state senator issued a press release claiming Democrats had been shut out of the process and that some districts were drawn to dilute or exclude minority voters.
Sen. Jim Wilson, D-Tahlequah, filed a lawsuit challenging the state Senate's redistricting plan.
"The committee that went out and talked about the process, that’s all they did was talk about the process and how this has to happen. ... They didn’t have any maps or any ideas," Wilson said.
The House had very specific rules allowing each member of the House to set up an appointment with staff in charge of redistricting to discuss their requests for their districts. The House redistricting rules and guidelines were published on its website. The Senate issued a total of four press releases during the process: two naming committee members, one listing public hearings (at which no proposed maps were yet available) and one announcing agreement by the Senate on its plan.
Another area in which legislative machinations are hidden from public view has historically been in the conference committee phase, during which the House and Senate try to work out final language in a bill and reconcile differences in versions that emerged from the separate chambers. .
Joel Kintsel, executive vice president of the Oklahoma Council of Public Affairs, said the sometimes informal conference process is "historically where all the funny business has happened.” Last year, he said, the House passed a rule that requires those conference committees to actually meet.
Kintsel said these committees "posted agendas and elaborate conference committee reports to allow public to see what they were going to vote on."
The Senate has not chosen to follow in the House's footsteps in that regard, he said.
During the 2010 legislative session, a state lawmaker added language to a bill creating an $80,000-a-year job allegedly intended for another lawmaker, who had agreed not to seek re-election in return. The lawmaker who sponsored the original legislation said he couldn’t get a final copy of his own bill before a vote in the House and Senate.
The bill was vetoed by Gov. Brad Henry when he became aware of the inserted language. The deal resulted in a bribery charge against the two lawmakers who allegedly arranged the deal, Rep. Randy Terrill and Sen. Debbe Leftwich; the case is still pending. Both have pleaded not guilty
There are also gaps in the information provided about the budgeting process.
After funds are spent, there is a lot of information available to citizens through the state's expenditure site, Openbooks. However detailed budgetary allocations to agencies often are not available because lawmakers tend to give agencies lump sums and let them determine how to spend the funds.
David Blatt, director of the non-profit Oklahoma Policy Institute, said what agency directors are told by lawmakers "more or less explicitly is, 'We are cutting you five percent. Figure it out. We don’t want to get any calls.’"
Oklahoma’s judiciary is almost totally secluded from open government laws. Judges and the panel that disciplines them are excluded from the definition of public bodies in the state Open Records Act.
The Council on Judicial Complaints investigates complaints against judges while the Court on the Judiciary is responsible for considering disciplinary action, including removal from the bench.
The Court on the Judiciary has acted swiftly to remove the worst offenders. A district-level judge, Donald Thompson, was removed from the bench, prosecuted and convicted after complaints about his lewd behavior while on the bench.
The only criticism of the system from citizens, especially journalists, is its extreme secrecy. A request by the Tulsa World for statistics on the number of cases and outcomes by the Council on Judicial Complaints was denied by the House speaker's office, which receives such a report by statute.
However, Allen Smallwood, a criminal defense attorney and past president of the Oklahoma Bar Association, said he believes the level of confidentiality is appropriate. If a formal charge is made against a judge, that becomes public, Smallwood said.
While citizens vote on district and state-level judges, they have little information on which to evaluate the performance of judges. There is no data on judges' performance made available to the public. Appeals court and State Supreme Court judges are initially appointed, and then subject to “retention” ballots through which voters decide whether to keep them or not.
Michael Evans, administrative director of the courts, said the lack of information is a problem at election time.
“I think it’s a mistake that we don’t have something more substantial. What we rely on I suppose is the appointment process. The weakness of that is that once somebody takes office there’s no way to evaluate that person from that point forward."
Ethics and politics
While Oklahoma has enshrined its ethics commission in the state Constitution, many state government observers say the commission has been hobbled by a lack of funding. The commission is the repository for campaign filings required by law. It also sets ethics rules for office holders and state employees and investigates violations of the rules.
While the commission has levied penalties in some high-profile cases, for the most part it lacks the resources to adequately police politicians and state employees, said GOP state Rep. Mike Reynolds.
In 2008, Reynolds discovered a clause slipped into a bill that would have taken away authority of the commission to name its own director and allowed the director’s duties to be defined by the Legislature. That clause was thrown out but lawmakers continue to underfund the agency, “which is the ultimate interference,” Reynolds said.
Bryan Dean, a reporter at The Oklahoman newspaper and past president of FOI Oklahoma, agreed that the commission needs more resources to do its job.
“I think they are somewhat neutered by the lack of staffing and financial resources and some people have questioned whether that’s by design.”
Another concern: loopholes in state laws that prohibiting state officials from arranging jobs for themselves.
There is only one law in Oklahoma related to private sector service by former state executive branch officials. It prohibits an official from being involved in a privatization contract and then going to work for the company that contracts with the state. The prohibition lasts for only one year.
Several former top officials in the state's prison system have gone to work with private prison companies contracting with the state, even after the law was enacted.
A law that prevents former state lawmakers from going to work for state agencies for two years after leaving office has a loophole that has been exploited by several. The law doesn’t apply to agencies supported by fees or federal funds, rather than direct state appropriations, the attorney general’s office has ruled. That has allowed former lawmakers to take lucrative jobs at a power authority, the insurance commission and other agencies.
Oklahoma does have laws in place to prevent state officials from receiving gifts and perks while in office, but several elected officials have flouted those laws.
Former Oklahoma Insurance Commissioner Carroll Fisher resigned in 2004 after he was found to have solicited more than $30,000 in furnishings and other items for his office from people who were regulated by the agency. He was convicted after pleading no contest to accepting bribes from a Texas businessman who was seeking preferential treatment by the agency.
State Auditor and Inspector Jeff McMahan resigned from office after being charged with accepting bribes, expensive gifts and trips from a businessman in the abstract industry, which is regulated by the auditor's office. He was convicted in 2008.
Scandals like these often provoke a predictable cycle: A public outcry prompts officials to posture and promise reform. Laws are proposed, watered down in secret and by the time they pass, the next scandal has distracted the public.
As Oklahoma’s favorite son cowboy comedian Will Rogers said: “People don’t change under governments. Governments change. People remain the same.”
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