Empathy List Archives

JO

Jones, Orval E

Thu, Dec 9, 2021 3:00 PM

As Jon has noted, "51 O.S. § 24A.14 does allow a public official to keep confidential the content of personal communications received by the public official from a person exercising constitutional rights of free speech." I believe that reading may be too narrow. I have always read this provision more broadly to include all complaints to a government official, including, for example, 911 calls. Because this provision has not been authoritatively construed, I would take the broader approach.

The statute provides (note that it is permissive rather than mandatory), "Except for the fact that a communication has been received and that it is or is not a complaint, a public official may keep confidential personal communications received by the public official from a person exercising rights secured by the Constitution of the State of Oklahoma or the Constitution of the United States. The public official's written response to this personal communication may be kept confidential only to the extent necessary to protect the identity of the person exercising the right.."

Consider this AG opinion (1988 OK AG 79):

¶9 If a complaint about a dentist is a personal communication from a person exercising rights secured by the state or federal constitutions, then it falls within this "personal communications" exception.

¶10 We note that the very language of the "personal communications" exception indicates that some kinds of complaints fall within its ambit. The "personal communications" exception contains the word "complaint": "Except for the fact that a communication has been received and that it is or is not a complaint, a public official may keep confidential personal communications...."

¶11 In determining whether a complaint about a dentist is the kind of communication that falls within the "personal communications" exception, we cannot turn to other jurisdictions for guidance because, though many other states have some form of open records or freedom of information laws (see Braverman, "A Practical Review of State Open Records Laws," 49 Geo. Wash. L. Rev. 720, May, 1981), the "personal communications" exception is unique to Oklahoma. White, "Open Records in Oklahoma: Where Are We Now?," 57 O.B.J. 1831, 1838 (1986).

¶12 The plain language of the "personal communications" exception indicates that a personal communication from a "person exercising rights secured by the Constitution of the State of Oklahoma or by the Constitution of the United States" is exempt from the Act's disclosure requirements. If a person who files a complaint about a dentist is exercising a right secured by the state or federal constitution, then such a complaint falls within the "personal communications" exception.

¶13 The federal constitution protects the right of a person "to petition the Government for a redress of grievances." U.S.Const.amend. I. The Oklahoma Constitution provides that "the people have the right . . . to apply to those invested with the powers of government for redress of grievances by petition, address, or remonstrance." Okla. Const. Article II, Section 3.

One more AG opinion (1988 OK AG 87):

¶4 Title 51 O.S. 24A.5(1) (1988) identifies specific records which are required to be kept confidential and are statutorily exempt from the Oklahoma Open Records Act. Moreover the Oklahoma Open Records Act sets forth a number of specific instances whereby records may be deemed confidential and thereby not readily subject to disclosure.

¶5 Correspondence regarding clemency consideration of inmates, however, is not specifically covered by any provision of the Oklahoma Open Records Act unless the correspondence is construed as a personal communication from a person exercising a right secured by the State or Federal Constitution.

¶6 Title 51 O.S. 24A.14 (1988) provides specifically, in pertinent part:

[A] public official may keep confidential personal communications received by the public official from a person exercising rights secured by the Constitution of the State of Oklahoma or the Constitution of the United States.

¶7 It is clear from a literal reading of 51 O.S. 24A.14 (1988) that any personal communication conveyed to a public official pursuant to a State or Federal Constitutional right may be deemed confidential. Both the State and Federal Constitutions guarantee a plethora of rights.

¶8 This statute is vague as to the constitutional rights involved. In determining if the Pardon and Parole Board may deem confidential correspondence regarding an inmate's clemency consideration, the intent of the legislature in enacting 51 O.S. 24A.14 (1988) must be determined, particularly in light of the public policy and purpose of the Oklahoma Open Records Act expounded in 51 O.S. 24A.2.

¶9 Exactly which constitutional rights, both State and Federal, did the Legislature intend to address with the enactment of 51 O.S. 24A.14 (1988)?

It is a cardinal rule that in the construction of statutes the legislative intent must govern, and to arrive at the legislative intent the entire act must be considered, together with all other enactments upon the same subject, and when the intention of the Legislature can be gathered from the entire statute, words may be modified, altered, or supplied to give the statute the force and effect which the Legislature intended.

(Emphasis added). State v. Tapp, 380 P.2D 260, 265 (Okla. 1963). See also Oklahoma Natural Gas Co. v. Corporation Commission, 216 P. 917 (Okla. 1923); Board of Education of City of Okmulgee v. State Board of Education, 200 P.2d 394 (Okla. 1948); Curtis v. Registered Dentists of Oklahoma, 143 P.2d 427 (Okla. 1943); In re Blain, 172 P.2d 795 (Okla. 1946).

¶10 The First Amendment of the United States Constitution provides:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances....

¶11 Likewise, Oklahoma has a provision embodied in Article II, Section 22 of the Oklahoma Constitution, which states in pertinent part:

Every person may freely speak, write, or publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press.

¶12 Further, Article II, Section 3 of the Oklahoma Constitution provides:

The people have the right peaceably to assemble for their own good, and to apply to those invested with the powers of government for redress of grievances by petition, address, or remonstrance....

¶13 The above provisions viewed along with the stated purpose of the Act, that being "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," 51 O.S. 24A.2 (1988), lead to the conclusion that the Constitutional rights, both State and Federal, to which 51 O.S. 24A.14 refers must be interpreted to relate only to those rights associated with the government's power to redress grievances.

¶14 Unquestionably, the Pardon and Parole Board is a public body vested with the limited power to redress grievances through its statutory power to recommend, or not, that inmates be granted clemency by the Governor.

Message: 1
Date: Thu, 9 Dec 2021 14:20:42 +0000
From: Jon Miller JMiller@cityofmustang.org
Subject: [Oama] Re: [CAUTION: SUSPECT SENDER] Re Request for Customer
Information
To: Larry Lenora larrylenora@sbcglobal.net, "oama@lists.imla.org"
oama@lists.imla.org
Message-ID: fe507502a6e34ba186be68e322e9fd4a@cityofmustang.org
Content-Type: multipart/alternative;
boundary="000_fe507502a6e34ba186be68e322e9fd4acityofmustangorg"

Larry,

We have received similar requests in the past. Seems that once the law firm decided that the city would not be fertile ground for obtaining clients to bring claims against the city the requests stopped.

You are on the right track in your analysis. 51 O.S. § 24A.10(D) supports keeping telephone numbers confidential. The requesting party could argue that subsection is intended to provide confidentiality only for utility billing records and that the request is for complaints and not utility records. However, the request asks for telephone numbers and is not limited to telephone numbers that appear solely in a complaint (as opposed to being in the utility record).

51 O.S. § 24A.14 does allow a public official to keep confidential the content of personal communications received by the public official from a person exercising constitutional rights of free speech. However, I don’t think this provision would create a privacy right for complaints to city staff about sewer issues.

Jonathan E. Miller
City Attorney
City of Mustang
1501 N. Mustang Road
Mustang, Oklahoma 73064
Telephone: (405) 376-7746
Facsimile: (405) 376-7721

This email is sent by the City Attorney and may contain information that is privileged or confidential. If you received this email in error, please notify the sender by reply email and delete the email and any attachments. If you are a and officer, employee or agent of the City of Mustang, you should not share this email with others. Sharing this email may result in a loss of the attorney-client privilege.

From: Larry Lenora larrylenora@sbcglobal.net
Sent: Wednesday, December 8, 2021 6:36 PM
To: oama@lists.imla.org
Subject: [CAUTION: SUSPECT SENDER] [Oama] Re Request for Customer Information

My municipality has received an Open Records request from a law firm which is asking for the "names, addresses and contact information for each and every caller corresponding with the date and time the calls were made" by any person that has called regarding sewer complaints or problems for the last two years.

I am concerned that disclosure of addresses and contact information may be a violation of the rights of citizens who have called in with complaints.It appears that 51 O.S. 24A.10 (D) authorizes addresses but not phone numbers. I just want to know if I'm on the right track when responding to this request.

I appreciate all of the benefit I receive from following the posts on this listserv.

Larry K. Lenora
Lenora, Upton & Bridge, PLLC
116 West 8th Street
P.O. Box 337
Chandler, Oklahoma, 74834
405.258.1334
larrylenora@sbcglobal.net mailto:larrylenora@sbcglobal.net

This communication is privileged and confidential. It is an attorney-client communication and may transmit attorney work product. The information included or attached is intended only for delivery to the individual(s) or entity(ies) named above. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or the taking of any action in reliance on the contents of this transmission is strictly prohibited. If you received this transmission in error, please immediately notify us by return email and immediately delete the misdirected email.

-------------- next part --------------
A message part incompatible with plain text digests has been removed ...
Name: not available
Type: text/html
Size: 9167 bytes
Desc: not available

Message: 2
Date: Wed, 8 Dec 2021 22:11:14 +0000
From: Beth Anne Childs bethanne@thechildsfirm.com
Subject: [Oama] Purcell City Attorney Position
To: "oama@lists.imla.org" oama@lists.imla.org
Message-ID: BF59D46D-66C5-4064-B2A5-B8A94FB83500@thechildsfirm.com
Content-Type: multipart/mixed;
boundary="004_BF59D46D66C54064B2A5B8A94FB83500thechildsfirmcom"

Fellow Municipal Attorneys:

The City of Purcell is in the process of recruiting a City Attorney. I have attached the announcement for your review.

Have a great Wednesday!

Beth Anne
-------------- next part --------------
A message part incompatible with plain text digests has been removed ...
Name: not available
Type: text/html
Size: 2201 bytes
Desc: not available
-------------- next part --------------
A message part incompatible with plain text digests has been removed ...
Name: City and Trust Attorney Purcell 2021[1].docx
Type: application/vnd.openxmlformats-officedocument.wordprocessingml.document
Size: 166052 bytes
Desc: City and Trust Attorney Purcell 2021[1].docx

Subject: Digest Footer

Oama mailing list -- oama@lists.imla.org To unsubscribe send an email to oama-leave@lists.imla.org

End of Oama Digest, Vol 25, Issue 18

CONFIDENTIALITY NOTE: This e-mail message and any attachments are intended solely for the person to which it is addressed and may contain privileged and confidential information protected by law. If you have received this communication in error, please notify the sender immediately by telephone or e-mail, destroy this message and delete any copies held in your electronic files. Unauthorized use and/or re-disclosure may subject you to penalties under applicable state and federal laws.

As Jon has noted, "51 O.S. § 24A.14 does allow a public official to keep confidential the content of personal communications received by the public official from a person exercising constitutional rights of free speech." I believe that reading may be too narrow. I have always read this provision more broadly to include all complaints to a government official, including, for example, 911 calls. Because this provision has not been authoritatively construed, I would take the broader approach. The statute provides (note that it is permissive rather than mandatory), "Except for the fact that a communication has been received and that it is or is not a complaint, a public official may keep confidential personal communications received by the public official from a person exercising rights secured by the Constitution of the State of Oklahoma or the Constitution of the United States. The public official's written response to this personal communication may be kept confidential only to the extent necessary to protect the identity of the person exercising the right.." Consider this AG opinion (1988 OK AG 79): ¶9 If a complaint about a dentist is a personal communication from a person exercising rights secured by the state or federal constitutions, then it falls within this "personal communications" exception. ¶10 We note that the very language of the "personal communications" exception indicates that some kinds of complaints fall within its ambit. The "personal communications" exception contains the word "complaint": "Except for the fact that a communication has been received and that it is or is not a complaint, a public official may keep confidential personal communications...." ¶11 In determining whether a complaint about a dentist is the kind of communication that falls within the "personal communications" exception, we cannot turn to other jurisdictions for guidance because, though many other states have some form of open records or freedom of information laws (see Braverman, "A Practical Review of State Open Records Laws," 49 Geo. Wash. L. Rev. 720, May, 1981), the "personal communications" exception is unique to Oklahoma. White, "Open Records in Oklahoma: Where Are We Now?," 57 O.B.J. 1831, 1838 (1986). ¶12 The plain language of the "personal communications" exception indicates that a personal communication from a "person exercising rights secured by the Constitution of the State of Oklahoma or by the Constitution of the United States" is exempt from the Act's disclosure requirements. If a person who files a complaint about a dentist is exercising a right secured by the state or federal constitution, then such a complaint falls within the "personal communications" exception. ¶13 The federal constitution protects the right of a person "to petition the Government for a redress of grievances." U.S.Const.amend. I. The Oklahoma Constitution provides that "the people have the right . . . to apply to those invested with the powers of government for redress of grievances by petition, address, or remonstrance." Okla. Const. Article II, Section 3. One more AG opinion (1988 OK AG 87): ¶4 Title 51 O.S. 24A.5(1) (1988) identifies specific records which are required to be kept confidential and are statutorily exempt from the Oklahoma Open Records Act. Moreover the Oklahoma Open Records Act sets forth a number of specific instances whereby records may be deemed confidential and thereby not readily subject to disclosure. ¶5 Correspondence regarding clemency consideration of inmates, however, is not specifically covered by any provision of the Oklahoma Open Records Act unless the correspondence is construed as a personal communication from a person exercising a right secured by the State or Federal Constitution. ¶6 Title 51 O.S. 24A.14 (1988) provides specifically, in pertinent part: [A] public official may keep confidential personal communications received by the public official from a person exercising rights secured by the Constitution of the State of Oklahoma or the Constitution of the United States. ¶7 It is clear from a literal reading of 51 O.S. 24A.14 (1988) that any personal communication conveyed to a public official pursuant to a State or Federal Constitutional right may be deemed confidential. Both the State and Federal Constitutions guarantee a plethora of rights. ¶8 This statute is vague as to the constitutional rights involved. In determining if the Pardon and Parole Board may deem confidential correspondence regarding an inmate's clemency consideration, the intent of the legislature in enacting 51 O.S. 24A.14 (1988) must be determined, particularly in light of the public policy and purpose of the Oklahoma Open Records Act expounded in 51 O.S. 24A.2. ¶9 Exactly which constitutional rights, both State and Federal, did the Legislature intend to address with the enactment of 51 O.S. 24A.14 (1988)? It is a cardinal rule that in the construction of statutes the legislative intent must govern, and to arrive at the legislative intent the entire act must be considered, together with all other enactments upon the same subject, and when the intention of the Legislature can be gathered from the entire statute, words may be modified, altered, or supplied to give the statute the force and effect which the Legislature intended. (Emphasis added). State v. Tapp, 380 P.2D 260, 265 (Okla. 1963). See also Oklahoma Natural Gas Co. v. Corporation Commission, 216 P. 917 (Okla. 1923); Board of Education of City of Okmulgee v. State Board of Education, 200 P.2d 394 (Okla. 1948); Curtis v. Registered Dentists of Oklahoma, 143 P.2d 427 (Okla. 1943); In re Blain, 172 P.2d 795 (Okla. 1946). ¶10 The First Amendment of the United States Constitution provides: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.... ¶11 Likewise, Oklahoma has a provision embodied in Article II, Section 22 of the Oklahoma Constitution, which states in pertinent part: Every person may freely speak, write, or publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press. ¶12 Further, Article II, Section 3 of the Oklahoma Constitution provides: The people have the right peaceably to assemble for their own good, and to apply to those invested with the powers of government for redress of grievances by petition, address, or remonstrance.... ¶13 The above provisions viewed along with the stated purpose of the Act, that being "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," 51 O.S. 24A.2 (1988), lead to the conclusion that the Constitutional rights, both State and Federal, to which 51 O.S. 24A.14 refers must be interpreted to relate only to those rights associated with the government's power to redress grievances. ¶14 Unquestionably, the Pardon and Parole Board is a public body vested with the limited power to redress grievances through its statutory power to recommend, or not, that inmates be granted clemency by the Governor. ---------------------------------------------------------------------- Message: 1 Date: Thu, 9 Dec 2021 14:20:42 +0000 From: Jon Miller <JMiller@cityofmustang.org> Subject: [Oama] Re: [CAUTION: SUSPECT SENDER] Re Request for Customer Information To: Larry Lenora <larrylenora@sbcglobal.net>, "oama@lists.imla.org" <oama@lists.imla.org> Message-ID: <fe507502a6e34ba186be68e322e9fd4a@cityofmustang.org> Content-Type: multipart/alternative; boundary="_000_fe507502a6e34ba186be68e322e9fd4acityofmustangorg_" Larry, We have received similar requests in the past. Seems that once the law firm decided that the city would not be fertile ground for obtaining clients to bring claims against the city the requests stopped. You are on the right track in your analysis. 51 O.S. § 24A.10(D) supports keeping telephone numbers confidential. The requesting party could argue that subsection is intended to provide confidentiality only for utility billing records and that the request is for complaints and not utility records. However, the request asks for telephone numbers and is not limited to telephone numbers that appear solely in a complaint (as opposed to being in the utility record). 51 O.S. § 24A.14 does allow a public official to keep confidential the content of personal communications received by the public official from a person exercising constitutional rights of free speech. However, I don’t think this provision would create a privacy right for complaints to city staff about sewer issues. Jonathan E. Miller City Attorney City of Mustang 1501 N. Mustang Road Mustang, Oklahoma 73064 Telephone: (405) 376-7746 Facsimile: (405) 376-7721 This email is sent by the City Attorney and may contain information that is privileged or confidential. If you received this email in error, please notify the sender by reply email and delete the email and any attachments. If you are a and officer, employee or agent of the City of Mustang, you should not share this email with others. Sharing this email may result in a loss of the attorney-client privilege. From: Larry Lenora <larrylenora@sbcglobal.net> Sent: Wednesday, December 8, 2021 6:36 PM To: oama@lists.imla.org Subject: [CAUTION: SUSPECT SENDER] [Oama] Re Request for Customer Information My municipality has received an Open Records request from a law firm which is asking for the "names, addresses and contact information for each and every caller corresponding with the date and time the calls were made" by any person that has called regarding sewer complaints or problems for the last two years. I am concerned that disclosure of addresses and contact information may be a violation of the rights of citizens who have called in with complaints.It appears that 51 O.S. 24A.10 (D) authorizes addresses but not phone numbers. I just want to know if I'm on the right track when responding to this request. I appreciate all of the benefit I receive from following the posts on this listserv. Larry K. Lenora Lenora, Upton & Bridge, PLLC 116 West 8th Street P.O. Box 337 Chandler, Oklahoma, 74834 405.258.1334 larrylenora@sbcglobal.net<mailto:larrylenora@sbcglobal.net> This communication is privileged and confidential. It is an attorney-client communication and may transmit attorney work product. The information included or attached is intended only for delivery to the individual(s) or entity(ies) named above. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or the taking of any action in reliance on the contents of this transmission is strictly prohibited. If you received this transmission in error, please immediately notify us by return email and immediately delete the misdirected email. -------------- next part -------------- A message part incompatible with plain text digests has been removed ... Name: not available Type: text/html Size: 9167 bytes Desc: not available ------------------------------ Message: 2 Date: Wed, 8 Dec 2021 22:11:14 +0000 From: Beth Anne Childs <bethanne@thechildsfirm.com> Subject: [Oama] Purcell City Attorney Position To: "oama@lists.imla.org" <oama@lists.imla.org> Message-ID: <BF59D46D-66C5-4064-B2A5-B8A94FB83500@thechildsfirm.com> Content-Type: multipart/mixed; boundary="_004_BF59D46D66C54064B2A5B8A94FB83500thechildsfirmcom_" Fellow Municipal Attorneys: The City of Purcell is in the process of recruiting a City Attorney. I have attached the announcement for your review. Have a great Wednesday! Beth Anne -------------- next part -------------- A message part incompatible with plain text digests has been removed ... Name: not available Type: text/html Size: 2201 bytes Desc: not available -------------- next part -------------- A message part incompatible with plain text digests has been removed ... Name: City and Trust Attorney Purcell 2021[1].docx Type: application/vnd.openxmlformats-officedocument.wordprocessingml.document Size: 166052 bytes Desc: City and Trust Attorney Purcell 2021[1].docx ------------------------------ Subject: Digest Footer Oama mailing list -- oama@lists.imla.org To unsubscribe send an email to oama-leave@lists.imla.org ------------------------------ End of Oama Digest, Vol 25, Issue 18 ************************************ CONFIDENTIALITY NOTE: This e-mail message and any attachments are intended solely for the person to which it is addressed and may contain privileged and confidential information protected by law. If you have received this communication in error, please notify the sender immediately by telephone or e-mail, destroy this message and delete any copies held in your electronic files. Unauthorized use and/or re-disclosure may subject you to penalties under applicable state and federal laws.

JM

Jon Miller

Thu, Dec 9, 2021 3:21 PM

I yield to the man with AG Opinions. Good analysis, Orval. Those opinions do seem to be interpreting that provision fairly broadly.

Jonathan E. Miller
City Attorney
City of Mustang
1501 N. Mustang Road
Mustang, Oklahoma 73064
Telephone: (405) 376-7746
Facsimile: (405) 376-7721

This email is sent by the City Attorney and may contain information that is privileged or confidential. If you received this email in error, please notify the sender by reply email and delete the email and any attachments. If you are a and officer, employee or agent of the City of Mustang, you should not share this email with others. Sharing this email may result in a loss of the attorney-client privilege.

-----Original Message-----
From: Jones, Orval E orval.jones@okc.gov
Sent: Thursday, December 9, 2021 9:01 AM
To: oama@lists.imla.org
Subject: [Oama] Re Request for Customer Complaint Information