Lawmakers’ emails to lobbyists, calendars, call logs and other records that could give the public insight into the bills they craft are set to remain secret for at least another year.
A bill that would’ve ended Oklahoma’s status as one of a handful of states that allows the legislature to exempt itself from open records and meeting laws quietly, and with little fanfare, failed to clear a key legislative deadline.
Hopes for House Bill 3525 faded when a GOP-led House committee did not give the proposal a hearing by the March 4 cut-off date.
The proposal from Minority Leader Rep. Emily Virgin, D-Norman, would have ended a decades-old exemption that allowed the Legislature to ignore the open records and meeting laws that city councils, county commissioners, school boards and other state governing bodies must follow.
In addition to opening the records to public scrutiny, the bill would have required legislative committees to publish meeting agendas, blocked lawmakers from voting on measures while in closed caucus sessions and opened a more formal way for the public to comment on bills.
“I think my experience in the Legislature has shown me that it’s really hard for me to keep up with the legislation that we are moving through the process,” said Virgin, who after 12 years, will be term-limited after this year. “And what that tells me is that it would be even harder for folks at home to keep up with what we are doing.”
Many Proposals, Little Debate
Such proposals have been introduced before in the Legislature.
An Oklahoma Watch review of bill filings over the past decade found at least seven bills introduced that would remove the blanket open meeting and records exemption.
Only one received any type of vote. A 2012 proposal passed out of committee, 8-3, but failed to get a vote in the full House or Senate.
Since then, both Republicans and Democrats have continued to push proposals that have generated little discussion at the Capitol beyond a few mentions in the media.
Joey Senat, an open government and media law expert at Oklahoma State University, said he believes few in the public are aware of the Legislature’s rare exemption. Lawmakers also don’t want to make their job more difficult or open themselves to more public scrutiny.
“You know it’s a lot easier to operate in secret,” he said. “It’s easier to have your backroom deals or work out deals in the hallway instead of having real discussion in front of the public or letting the public see your written correspondence to lobbyists and other lawmakers.”
Senat said open government proposals traditionally have seen high public support. He pointed to a 2012 SoonerPoll survey that found 85% of likely Oklahoma voters polled said they would support the legislation to remove the open records and meeting exemption for the Legislature. Only 7.8% said they opposed the legislation and 7.2% had no opinion.
But even getting legislative leaders to comment on the idea can be difficult.
Senate Pro Tem Greg Treat, R-Oklahoma City, House Speaker Charles McCall, R-Atoka, did not return requests for comment from Oklahoma Watch. Rep. Jeff Boatman, R-Tulsa, who chairs the House Committee on Government Modernization that could have heard Virgin’s bill this year also did not respond to an interview request.
Legislative leaders previously have raised concerns about their communication with their constituents being made public, potentially slowing the legislative process and increasing costs. (Still, some past proposals specifically exempted those records.)
Members of both parties have opposed changes in the past.
Democrat Rodger Randle, who was the state Senate leader when the Oklahoma Open Records Act was passed in 1985, was later quoted in the Oklahoman saying that the legislative exemption is necessary “to allow policymakers an opportunity to freely debate options in the process of coming up with a proposal.” When he was asked by the paper why lawmakers never included themselves in that act, he reportedly chuckled and said, “we are not a dumb group.”
As Oklahoma Resists Changes, Other States Take Different Action
According to a 2018 survey by the nonprofit investigative news project MuckRock, Oklahoma is just one of four states that do not subject their legislatures to public records laws. The others: Iowa, Minnesota and Massachusetts.
A recent paper in the Journal of Civic Information found that as many states have updated their open records and meeting laws in recent years, Oklahoma remains in the “minority” of states that have not.
The study found that while most permit some basic level of access to legislative records, 38 states have now adopted statutes permitting access to legislative access. Some states even allow “unrestricted” access.
The paper goes on to conclude that, “the clear trend is to provide access to legislative branch records and, in cases of textual ambiguity, to favor public access.”
“It’s definitely been a hot issue in some states,” said Ryan Mulvey, one of the authors of the study who is also counsel at the Cause of Action Institute, a Virginia-based nonprofit group.
Mulvey said legal challenges or ambiguity about some laws have prompted states to clarify or expand what records can be made public. Some have crafted compromise legislation offering to keep private certain records, such as emails to constituents, he said.
It’s increasingly difficult for lawmakers to oppose closing off all records, Mulvey said.
“That’s a hard policy to oppose,” he said. “And it’s a left, right and center winner to talk about politically. So when you get these moments when it becomes an issue it’s hard to be on the side of ‘no, we are not going to to this.’”
Mulvey added that public pressure from the media, open advocates or others can also compel states to act.
Senat said lawmakers’ views on transparency and open government often change when they take office. That’s why he helped launch an “open government pledge” several years back when he was with Freedom of Information Oklahoma.
That has largely fallen by the wayside. Only a couple of sitting lawmakers have signed the pledge in recent years. Senat said he hopes this election season, the media and other transparency advocates work to bring up the issue and then hold lawmakers accountable if they get elected.
If lawmakers continue to resist changes, Senat said voters always have the citizen-led ballot initiative process to try to change the law themselves.
“I’m not optimistic (about changes) unless we decide to put the energy and effort into it,” he said. “But it’s not going to happen on its own, I’m sure of that.”