Background
- The City of Owasso hired private attorney Guy Fortney to investigate alleged misconduct by the City Manager; Fortney produced a report (the "Fortney Report").
- The City Council approved a settlement under which the City Manager resigned with severance; Councilor Patrick Ross objected and requested the Fortney Report under the Oklahoma Open Records Act (ORA).
- An assistant city clerk denied the request as confidential; Ross sued alleging ORA (and Open Meetings Act) violations; all claims were dismissed by agreement except the ORA disclosure issue.
- At summary judgment the district court held the Report was not subject to disclosure; Ross appealed.
- The Court of Civil Appeals held the Report is a "personnel record" within 51 O.S. § 24A.7(A) (discretionary confidentiality), but found the City Council never formally exercised its discretion by voting to release or withhold the Report, so the decision must be remanded for a council determination.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Fortney Report is a personnel record under § 24A.7(A) | Ross: Report concerns alleged criminal acts and policy violations, so not a personnel record | City: Report concerns internal investigation of City Manager and thus falls within § 24A.7(A) | Held: Report is a personnel record and may be withheld at the City's discretion |
| Whether a confidentiality/non-disparagement agreement bars release under the ORA | Ross: Settlement or confidentiality agreement controls and precludes release | City: Agreement supports nondisclosure | Held: Agreements cannot override ORA; City cannot contract around disclosure requirements |
| Whether placing the Report outside a personnel file or with a private contractor removes ORA coverage | Ross: Report not in personnel file or in City possession, so must be released | City: Report produced by contractor and not in personnel file | Held: Physical location or private custody does not remove ORA coverage; still a personnel record |
| Whether the City properly withheld the Report without a City Council vote; effect of no formal council decision | Ross: City failed to follow § 24A.7 procedure; lack of vote means automatic release | City: "The City" refused disclosure (asserting confidentiality) | Held: Council never voted; failure to act is not automatic release; remand for Council to exercise discretion (then courts may review for abuse of discretion) |
Key Cases Cited
- City of Jenks v. Stone, 321 P.3d 179 (Okla. 2014) (summary judgment standard and appellate review explained)
- Wood v. Mercedes-Benz of Okla. City, 336 P.3d 457 (Okla. 2014) (de novo review of questions of law on summary judgment)
- Carmichael v. Beller, 914 P.2d 1051 (Okla. 1996) (summary judgment principles)
- Okla. Pub. Employees Ass'n v. State ex rel. Okla. Office of Pers. Mgmt., 267 P.3d 838 (Okla. 2011) (public policy and ORA purposes)
- Int'l Union of Police Ass'ns v. City of Lawton, 227 P.3d 164 (Okla. Civ. App. 2009) (abuse of discretion standard for review of withholding under ORA)