Open Meeting and Open Records Act 2017 Amendments

A section of the Open Records Act was amended effective November 1, 2017.  The amendment provides additional guidance concerning how a public body may approach producing public records for inspection and reproduction. The amendment is found at 51 O.S. § 24.A.5 (6).  There are two new provisions of this subsection to be aware of.  The amended statutory section now reads:

6. A public body must provide prompt, reasonable access to its records but may establish reasonable procedures which protect the integrity and organization of its records and to prevent excessive disruptions of its essential functions. A delay in providing access to records shall be limited solely to the time required for preparing the requested documents and the avoidance of excessive disruptions of the public body's essential functions. In no event may production of a current request for records be unreasonably delayed until after completion of a prior records request that will take substantially longer than the current request. Any public body which makes the requested records available on the Internet shall meet the obligation of providing prompt, reasonable access to its records as required by this paragraph; and

This first added sentence underlined specifies that delay of access to records shall be permissible in only two situations: (a) preparation time necessary to respond to the request, and (b) if delay is necessary to avoid excessive disruption to the public body’s essential functions.

This second added sentence underlined specifies an impermissible reason for delay in fulfilling an Open Records request for inspection or reproduction. The effect of the provision is to negate a “first in, first out” rule in responding to Open Records requests.  In other words, if a public body had received a prior voluminous request that may take a substantial amount of time to respond to, but then receives a subsequent request for production of records for inspection or reproduction that could be fulfilled more quickly, then fulfilling the subsequent request in a timely manner should be considered, rather than simply filling each request based on the which request was filed first.    This legislation attempts to interject a requirement that Open Record requests be evaluated at the time they are filed based on how quickly the records requested can be collected and made available, rather than simply based on a “first come, first served” approach.   

Open Meetings:

The Open Meetings Act was also amended 25 O.S. § 311 effective November 1, 2017.  This amendment primarily relates to public notice for public meetings being provided through internet websites. The specific language changes to this section can be found at Oklahoma Session Laws 2017, SB 403, c. 105, § 1, eff. November 1, 2017.

Under the prior version of §311 public bodies were required to publish a schedule of regular meetings by December 15th of every year, and then display notice of a regularly scheduled meeting at least 24 hours prior to a regular meeting at the principal office of the public body or the location of the meeting.  The Amendment to this section now provides for notice of a regular meeting by posting on the website of the public body at least 24 hours prior to a regular meeting and at least 48 hours prior to a special meeting.  The requirement of the content of the notice remains unchanged. Under the modified provision public bodies now have two options for providing notice prior to regularly scheduled meetings, but the public body must choose at least one of the following methods:

a. by posting information that includes date, time, place and agenda for the meeting in prominent public view at the principal office of the public body or at the location of the meeting if no office exists, or

b. by posting on the public body's Internet website the date, time, place and agenda for the meeting in accordance with Section 3102 of Title 74 of the Oklahoma Statutes. Additionally, the public body shall offer and consistently maintain an email distribution system for distribution of such notice of a public meeting required by this subsection, and any person may request to be included without charge, and their request shall be accepted. The emailed notice of a public meeting required by this subsection shall include in the body of the email or as an attachment to the email the date, time, place and agenda for the meeting and it shall be sent no less than twenty-four (24) hours prior to the meeting. Additionally, the public body shall make the notice of a public meeting required by this subsection available to the public in the principal office of the public body or at the location of the meeting during normal business hours at least twenty-four (24) hours prior to the meeting.

The remaining language amendments reword or relocate existing requirements for notice, but do not effect substantive changes.  Those requirements include:

The required twenty-four (24) hours’ notice for Regular meetings, or the required forty-eight (48) hours’ notice for Special meetings, shall exclude Saturdays, Sundays and holidays legally declared by the State of Oklahoma. The posting or distribution of a notice of a public meeting through the website of the public body shall not preclude a public body from considering at its regularly scheduled meeting any new business. “New business,” as used herein, shall mean any matter not known about or which could not have been reasonably foreseen prior to the time of the posting.

An additional amendment to 25 O.S. §311.A.9.b was approved by the Legislature effective November 1, 2019 primarily to correct an inaccurate reference to the Statutory provision requiring use of a public body’s website for posting public meeting information as found in 74 O.S. §3106.2.  (See Oklahoma Session Laws 2019, SB 740, c. 376, § 1, eff. November 1, 2019)

With this amendment to the §311, public bodies are still required to give notice of all regularly scheduled meetings by December 15th of each year.  But the twenty-four (24) hour posting of the regularly scheduled meeting may be accomplished through the public body’s website or by posting at the principal place of business of the public body or the location of the meeting.  Similarly, the public body’s website may also be used to publicly post notice the required forty-eight (48) hours’ notice of Special meetings.  The language of the statute makes posting on the public building optional if the website posting is used, but many cities continue to post both on the website and on the public building in order to maximize notice to the public of the upcoming public meeting.    

The information in this bulletin is intended solely for general informational purposes and should not be construed as or used as a substitute for legal advice or legal opinions with respect to specific situations since such advice requires an evaluation of precise factual circumstances by an attorney. OMAG does not represent or endorse any group, site or product that may be mentioned in this article. If you have questions, please contact Jeff Bryant, Associate General Counsel @ jbryant@omag.org.

Body Worn Video and Records Retention

BODY WORN VIDEO AND RECORDS RETENTION
With the popularity and affordability of Body Worn Video (BWV) equipment, many OMAG members are purchasing devices for their police officers.  Members learn quickly that the expense of the equipment purchase doesn’t compare to the cost of storing the video or data. OMAG Legal receives regular inquiries regarding storage/retention requirements and issues when it comes to BWV. As a service to our members, OMAG’s Legal and Risk Management Departments have developed this article addressing the most frequently asked questions regarding BWV retention.  

As of this writing, there is no legal obligation to store body (or dash) camera videos for any length of time. As such, the decision to store or not store is left to the municipality subject to the requirements of State law. The municipality should consider adopting a retention policy that takes into account the legal factors outlined in the statutes discussed below. In particular, if there is video of a use of deadly force (whether it causes death or just injuries or even where no one is actually hurt), those videos should be preserved (OMAG recommendation) and should be sent to OMAG Legal for review. Videos depicting a use of force incident causing significant bodily injury should also be preserved (OMAG recommendation).  The Statute of Limitations for Civil Rights claims is 2 years and there is a 6 month grace period to serve a Civil Rights suit after it is filed. For video capturing incidents which may lead to a Civil Rights claim, a 3 year retention would be ideal and a best practice.

The following Statutes are implicated when determining whether BWV videos should be preserved.

OPEN RECORDS ACT
“In addition to other records which are kept or maintained, every public body and public official has a specific duty to keep and maintain complete records of the receipt and expenditure of any public funds reflecting all financial and business transactions relating thereto, except that such records may be disposed of as provided by law.” 51 O.S. 24A.5. “Except as may be required in Section 24A.4 of this title, this act does not impose any additional recordkeeping requirements on public bodies or public officials.” 51 O.S. §24A.18. So the Open Records Act applies to records already in existence but only requires that financial records be kept. And even financial records can be disposed of “as provided by law.” Law Enforcement records have a specific statute, Section 24A.8, which mirrors this general non-requirement “Nothing contained in this section imposes any new recordkeeping requirements. Law enforcement records shall be kept for as long as is now or may hereafter be specified by law. Absent a legal requirement for the keeping of a law enforcement record for a specific time period, law enforcement agencies shall maintain their records for so long as needed for administrative purposes.” 51 O.S. §24A.8(C); see also Oklahoma Assoc. of Broadcasters v. City of Norman, 2016 OK 119, ¶¶25-30 390 P.3d 689 (Sec. 24A.8 is part of the entire Act and any ambiguities regarding disclosure obligations will be resolved in favor of disclosure). The question is whether any other law would apply because the Act may not require retention but it does specifically limit that “this act” does not impose requirements thus opening the door for other Statutes.

RECORDS MANAGEMENT ACT
“"Local record" means a record of a county, city, town, village, township, district, authority or any public corporation or political entity whether organized and existing under charter or under general law unless the record is designated or treated as a state record under state law.” 67 O.S. §203(c). “The governing body of each county, city, town, village, township, district, authority or any public corporation or political entity whether organized and existing under charter or under general law shall promote the principles of efficient records management for local records. Such governing body shall, as far as practical, follow the program, established for the management of state records. The Administrator shall, insofar as possible, upon the request of a governing body provide advice on the establishment of a local records management program.” 67 O.S. §207. 

“[S]hall, as far as practical, follow the program, established for the management of state records.” The Attorney General has declined twice to say what “as far as practical” means. See 2001 OK AG 46, ¶27, 2002 OK AG 13, ¶8 (in both instances the Attorney General opines that this is beyond the scope of the his opinion authority under 74 O.S. §18b(A)(5)). There is no need to fret: the Act delegates the authority to draft records retention policies to each agency of the state. 67 O.S. §206. The guidance in drafting a policy from the administrator is “How long do I keep records? Each record has its own disposition/retention schedule, which indicates the minimum length of time the record should be kept. A record’s retention period is based on its administrative, fiscal, legal or historical value.” Link. The Act does state “Except as otherwise provided by law, no state record shall be destroyed or otherwise disposed of unless it is determined by the Archives and Records Commission that the record has no further administrative, legal, fiscal, research or historical value.” 67 O.S. §210. §206(A)(1) and (3) arguably create a Cost/Benefit Analysis approach to the adopting of policies on retention: “[Each Agency head shall] Establish and maintain an active, continuing program for the economical and efficient management of the records of the agency” and records can be submitted to destruction when the record is “not needed in the transaction of current business and that do not have sufficient administrative, legal or fiscal value to warrant their further keeping.”

OMAG recommends that each municipality adopt policies on retention that take into account whether the record is needed for current business transactions and, if not, whether the record has administrative, legal, fiscal, research and historical value of records and then provide for their retention based on those factors. 

UNIFORM ELECTRONIC TRANSACTIONS ACT
Two defined terms that are relevant to the discussion are “"Electronic record" means a record created, generated, sent, communicated, received, or stored by electronic means” and “"Governmental agency" means an executive, legislative, or judicial agency, department, board, commission, authority, institution, or instrumentality of the federal government or of a state or of a county, municipality, or other political subdivision of a state.” 12A O.S. §15-102(9) & (11). So the act is going to apply to cities and towns, but the Act is very deferential to government to decide its retention for itself: “Each governmental agency of this state, in cooperation with the Archives and Records Commission, shall determine whether, and the extent to which, it will create and retain electronic records and convert written records to electronic records.” 12A O.S. §15-117. The Commission that is referenced was originally created by 74 O.S. §564, but it’s since been moved to 67 O.S. §305. The statutes limit the jurisdiction of the Commission to the State and its Agencies and does not define State as including political subdivisions.

OMAG’s opinion is that this Act applies to  municipalities and would apply to body cam video, but imposes no affirmative requirements on retention.

BWV CATEGORIES
Police Officers utilizing BWV devices must adhere to a department policy that not only governs the initiation and termination of recording, but also the categorizing of the recording.  At the end of recording, or end of shift, the officer must choose if the video segments are critical, non-critical, or would be considered evidence.   For the purposes of BWV categories, a few examples of critical, non-critical, and evidence are listed below:

I.    Critical
  a.    Vehicle stop where seizure and/or arrest is made
  b.    Injury to an officer or suspect
  c.    Use of force
  d.    Formal or administrative complaint/investigation
  e.    Or as determined by policy
II.    Non-critical
  a.    Warnings
  b.    Tickets
  c.    Routine interactions with public
III.    Evidence
  a.    Any images or video captured that an officer reasonably believes constitutes evidence in a criminal case

OMAG recommends a 3 year retention for a critical category and a 180 day retention for non-critical category.  Evidence should be maintained for the amount of time required by statute, until the case is adjudicated, or all appeals have been exhausted. 

Body Worn Video and Records Retention was written by Matthew Love and Kevin McCullough.  You may contact the authors at mlove@omag.org or kmccullough@omag.org .  The information in this bulletin is intended solely for general informational purposes and should not be construed as or used as a substitute for legal advice or legal opinion with respect to specific situations, since such advice requires an evaluation of precise factual circumstances by an attorney.
 

The Probationary Period

Facts About the Probationary Period

Did you know?

1. Probationary periods originated in union environments. Probationary periods originated to give employers the opportunity to terminate new employees within a reasonable period of time without all the paperwork and hearings contemplated by a collective bargaining agreement.

2. Probationary periods are not required for at-will employers. The at-will doctrine states that absent a contract, either express or implied, to the contrary, an employer can terminate an employee for any reason or no reason at all. In a non-union environment, probationary periods just aren’t necessary.

3. Probationary periods may be construed as an implied contract. A probationary period could create an implied contract. When you tell an employee you have 90 days to show us that you can do the job, what is the employee thinking? “I have a permanent job for at least 90 days.” Or, maybe, “After 90 days I have a job for life.” A written agreement clearly stating that the employment relationship is at-will is the only defense in this situation.

4. Termination during the probationary period does not disqualify employees from receiving unemployment. The probationary period has no bearing on whether an employee is awarded unemployment benefits.

5. Probationary periods do not protect against lawsuits. Probationary employees have the same rights as a non-probationary employee when it comes to filing lawsuits. Probationary employees can file lawsuits alleging wrongful termination, breach of contract, discrimination, harassment, failure to train, etc. And, there are limited situations where probationary employees can sue for due process violations. For example, if an employee is terminated in the probationary period for alleged criminal acts that were made public by the municipality, the municipality would owe this employee a name-clearing hearing in order to protect and defend his or her good name.

Tips for Implementing a  Successful Probationary Period

1. Be clear about at-will employment status. Make sure employees understand the employment relationship is at-will during and after the probationary period. This is vital to the defense of any claim that the municipality created an implied contract with the employee.

2. Be clear about your expectations. Objective goals need to be expressly stated to the employee regarding expectations. Be sure that the employee understands (a) how long the probationary period will last, (b) what needs to be accomplished during that period, (c) how often a review will occur and (d) what standards need to be met in order to successfully complete the probationary period.

3. Give feedback regularly. Supervisors should conduct periodic reviews with the employee to provide feedback about how the employee is progressing and what needs to be improved. If the employee is having performance issues, offer detailed guidance and provide additional training if necessary. Be sure that the employee assigned to provide guidance to the probationary employee is knowledgeable and experienced.

4. Encourage supervisors to ask HR for help if there is a concern. Explain to supervisors that HR is a resource and can help ensure employees are being treated fairly and consistently between municipal departments or with prior supervisors. Give the supervisors examples of what can go wrong when they don’t ask for help. For example, explain the problem created if they place a struggling employee on a one-month probationary period but a former supervisor gave employees three months to improve his/her performance. Or ask, if sued, how does the supervisor want to be perceived by a jury – as the mean supervisor who did not give the employee a second chance or the supervisor who gave the employee every opportunity (within reason) to correct the problem.

5. Document Document Document. Remember, if it’s not written down it did not happen, but if you write it down, you own it! If an employee can’t perform the essential functions of the position, you’ll likely want to terminate the employment relationship. For the best legal defense be sure the supervisor has documented dates, times, locations, witnesses of the employee’s performance, efforts to train, coach and manage, and so on.