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Oklahoma Association of Municipal Attorneys

Open Records - Status of Contract

Jared Harrison

Thu, Jul 10, 2025 3:12 PM

Good morning everyone.

I had an question come up in one of my cities and while I think I know the answer, I wanted to check here for additional insight especially in case I am missing something somewhere.

The city is working on a city manager’s employment contract. A draft of the proposed contract has been sent to the council for review and potential approval at a later date, although there are likely still negotiations and changes that might occur. Since people know it is out there, in draft form, there has been an open records request filed for that draft. Since it hasn’t been approved yet, is it an open record? It is obviously somewhat personnel and still not the official and final document, but it has been shared out to the council for review.

I’m not sure that the City is necessarily wanting to try to keep it confidential at this point, but they asked me if it was technically a record at this point and I didn’t have a great answer for them.

Any insight or guidance would be greatly appreciated.

Thanks,

Jared Harrison
Harrison & Mecklenburg, Inc.
202 N. 6th Street
P.O. Box 658
Kingfisher, OK 73750
(Phone) 405-375-6484
(Fax) 405-375-6413
Email: jared.harrison@hmlawoffice.com mailto:jared.harrison@hmlawoffice.com
Website: www.hmlawoffice.com http://www.hmlawoffice.com/
HM

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Good morning everyone. I had an question come up in one of my cities and while I think I know the answer, I wanted to check here for additional insight especially in case I am missing something somewhere. The city is working on a city manager’s employment contract. A draft of the proposed contract has been sent to the council for review and potential approval at a later date, although there are likely still negotiations and changes that might occur. Since people know it is out there, in draft form, there has been an open records request filed for that draft. Since it hasn’t been approved yet, is it an open record? It is obviously somewhat personnel and still not the official and final document, but it has been shared out to the council for review. I’m not sure that the City is necessarily wanting to try to keep it confidential at this point, but they asked me if it was technically a record at this point and I didn’t have a great answer for them. Any insight or guidance would be greatly appreciated. Thanks, Jared Harrison Harrison & Mecklenburg, Inc. 202 N. 6th Street P.O. Box 658 Kingfisher, OK 73750 (Phone) 405-375-6484 (Fax) 405-375-6413 Email: jared.harrison@hmlawoffice.com<mailto:jared.harrison@hmlawoffice.com> Website: www.hmlawoffice.com<http://www.hmlawoffice.com/> HM [AY8OaK+2H4ydAAAAAElFTkSuQmCC] CONFIDENTIALITY NOTICE: This e-mail transmission, and any documents, files or previous e-mail messages attached to it, may contain information which is legally privileged and/or confidential, and is solely for the use of the intended recipient(s). If you are not the intended recipient, any review, disclosure, copying, distribution or use of the information contained in or attached to this transmission is strictly prohibited. If you have received this e-mail transmission in error, please destroy it and notify us immediately at (405) 375-6484.

John Hammons

Thu, Jul 10, 2025 6:40 PM

I take the position that the draft employment agreement is a record.

Because the Open Records Act defines records broadly and almost anything in its possession is presumptively a record, the city would first have to convince a reviewing court that is not even "record" at all. Given that it deals with the (admittedly contingent) expenditure of public funds through the City Manager's compensation package, I think to claim it is not a "record" would likely not be warmly received by a reviewing court. The most compelling case I've been able to find is IUPA v. Lawton, 2009 OK CIV APP 85, 227 P.3d 164. In Lawton, the police union wanted to inspect a "draft" copy of the city's audit. City did not produce it, claiming it was exempt. Civil Appeals Court disagreed. They found the internal designation of a record as "preliminary" or "final" was not dispositive of the issue of discoverability under the Open Records Act. Instead, it took a totality of the circumstances approach to determining whether the document was a "record" as opposed to a non-record which just happened to be in the city's possession. Factors to be considered were whether the document was created by the city and how the city was using the document, with a heavier emphasis on the city's use. While Lawton was fact specific, the holding seems to be that if the city is actually using the document in the furtherance of public purposes, its a "record" even if self-styled as a "draft."

Because the draft employment agreement is likely a "record," you need to consult Section 7 (51 OS 24A.7) to see if it can be exempted as a personnel record. Under the guidance issued by the Attorney General, the city, if it wishes the exempt the document from disclosure, must balance the public's substantial interest in having access to the record against the legitimate interest of the employee against unwarranted invasions of personal privacy. Oklahoma Attorney General Opinion No. 2009-33 (December 8, 2009) at 7. Unfortunately, the Open Records Act does not define what constitutes a clearly unwarranted invasion of personal privacy. Because the public has a right to ensure governmental employees are “honestly, faithfully, and competently performing their duties” (51 OS 24A.5(3)(b)), I've always employed the following test for measuring the balancing test:

If disclosure of the requested document reasonable relates to the public’s ability to determine if the government is properly discharging their duties, then the disclosure of the record does not constitute a clearly unwarranted invasion of personal privacy and the same must be disclosed.

Stated another way, if the information contained in the document will reasonably assist the public in “efficiently and intelligently exercising their inherent political power" at the ballot box (51 OS 24A.2) , then it likely is not exempt. However, as stated above, this is inherently a factually intensive inquiry.

I hope this helps.

JTH

John Tyler Hammons

HAMMONS HAMBY & PRICE

312 N. 4th Street

Muskogee, OK 74401

O: (918) 683-0309

F: (918) 686-7510

E: JTH@HammonsPrice.com mailto:JTH@HammonsPrice.com

CONFIDENTIALITY NOTICE

This e-mail transmission and the documents accompanying may contain confidential information which is protected by the attorney-client privilege, other privileges, or by law. The information is intended only for delivery to the individual or entity named above. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distributing or the taking of any action in reliance on the contents of this transmission is strictly prohibited. If you have received this transmission in error, please immediately notify my office by telephone ay (918) 683-0309. Wrongful use of the information contained herein may subject you to criminal prosecution and penalties, as well as civil penalties.

From: Jared Harrison via Oama oama@lists.imla.org
Sent: Thursday, July 10, 2025 10:12 AM
To: Oama List oama@lists.imla.org
Subject: [Oama] Open Records - Status of Contract

Good morning everyone.

I had an question come up in one of my cities and while I think I know the answer, I wanted to check here for additional insight especially in case I am missing something somewhere.

Any insight or guidance would be greatly appreciated.

Thanks,

[AY8OaK+2H4ydAAAAAElFTkSuQmCC]

I take the position that the draft employment agreement is a record. Because the Open Records Act defines records broadly and almost anything in its possession is presumptively a record, the city would first have to convince a reviewing court that is not even "record" at all. Given that it deals with the (admittedly contingent) expenditure of public funds through the City Manager's compensation package, I think to claim it is not a "record" would likely not be warmly received by a reviewing court. The most compelling case I've been able to find is IUPA v. Lawton, 2009 OK CIV APP 85, 227 P.3d 164. In Lawton, the police union wanted to inspect a "draft" copy of the city's audit. City did not produce it, claiming it was exempt. Civil Appeals Court disagreed. They found the internal designation of a record as "preliminary" or "final" was not dispositive of the issue of discoverability under the Open Records Act. Instead, it took a totality of the circumstances approach to determining whether the document was a "record" as opposed to a non-record which just happened to be in the city's possession. Factors to be considered were whether the document was created by the city and how the city was using the document, with a heavier emphasis on the city's use. While Lawton was fact specific, the holding seems to be that if the city is actually using the document in the furtherance of public purposes, its a "record" even if self-styled as a "draft." Because the draft employment agreement is likely a "record," you need to consult Section 7 (51 OS 24A.7) to see if it can be exempted as a personnel record. Under the guidance issued by the Attorney General, the city, if it wishes the exempt the document from disclosure, must balance the public's substantial interest in having access to the record against the legitimate interest of the employee against unwarranted invasions of personal privacy. Oklahoma Attorney General Opinion No. 2009-33 (December 8, 2009) at 7. Unfortunately, the Open Records Act does not define what constitutes a clearly unwarranted invasion of personal privacy. Because the public has a right to ensure governmental employees are “honestly, faithfully, and competently performing their duties” (51 OS 24A.5(3)(b)), I've always employed the following test for measuring the balancing test: If disclosure of the requested document reasonable relates to the public’s ability to determine if the government is properly discharging their duties, then the disclosure of the record does not constitute a clearly unwarranted invasion of personal privacy and the same must be disclosed. Stated another way, if the information contained in the document will reasonably assist the public in “efficiently and intelligently exercising their inherent political power" at the ballot box (51 OS 24A.2) , then it likely is not exempt. However, as stated above, this is inherently a factually intensive inquiry. I hope this helps. JTH John Tyler Hammons HAMMONS HAMBY & PRICE 312 N. 4th Street Muskogee, OK 74401 O: (918) 683-0309 F: (918) 686-7510 E: JTH@HammonsPrice.com<mailto:JTH@HammonsPrice.com> CONFIDENTIALITY NOTICE This e-mail transmission and the documents accompanying may contain confidential information which is protected by the attorney-client privilege, other privileges, or by law. The information is intended only for delivery to the individual or entity named above. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distributing or the taking of any action in reliance on the contents of this transmission is strictly prohibited. If you have received this transmission in error, please immediately notify my office by telephone ay (918) 683-0309. Wrongful use of the information contained herein may subject you to criminal prosecution and penalties, as well as civil penalties. ________________________________ From: Jared Harrison via Oama <oama@lists.imla.org> Sent: Thursday, July 10, 2025 10:12 AM To: Oama List <oama@lists.imla.org> Subject: [Oama] Open Records - Status of Contract Good morning everyone. I had an question come up in one of my cities and while I think I know the answer, I wanted to check here for additional insight especially in case I am missing something somewhere. The city is working on a city manager’s employment contract. A draft of the proposed contract has been sent to the council for review and potential approval at a later date, although there are likely still negotiations and changes that might occur. Since people know it is out there, in draft form, there has been an open records request filed for that draft. Since it hasn’t been approved yet, is it an open record? It is obviously somewhat personnel and still not the official and final document, but it has been shared out to the council for review. I’m not sure that the City is necessarily wanting to try to keep it confidential at this point, but they asked me if it was technically a record at this point and I didn’t have a great answer for them. Any insight or guidance would be greatly appreciated. Thanks, Jared Harrison Harrison & Mecklenburg, Inc. 202 N. 6th Street P.O. Box 658 Kingfisher, OK 73750 (Phone) 405-375-6484 (Fax) 405-375-6413 Email: jared.harrison@hmlawoffice.com<mailto:jared.harrison@hmlawoffice.com> Website: www.hmlawoffice.com<http://www.hmlawoffice.com/> HM [AY8OaK+2H4ydAAAAAElFTkSuQmCC] CONFIDENTIALITY NOTICE: This e-mail transmission, and any documents, files or previous e-mail messages attached to it, may contain information which is legally privileged and/or confidential, and is solely for the use of the intended recipient(s). If you are not the intended recipient, any review, disclosure, copying, distribution or use of the information contained in or attached to this transmission is strictly prohibited. If you have received this e-mail transmission in error, please destroy it and notify us immediately at (405) 375-6484.