Freedom Of Information Act was first in Indian Country

BY TESINA JACKSON
Reporter
06/12/2014 10:30 AM
TAHLEQUAH, Okla. – The Cherokee Nation enacted its Freedom of Information and Rights of Privacy Act in 2001, becoming the first Federally recognized tribe to allow citizens access to public records of a public body. Governmental bodies in the United States, including some tribes, have similar laws governing the availability of information contained in public records.

“Native Americans have as much right as anybody else to get information from their government,” Kevin R. Kemper, former journalist and University of Arizona assistant professor of social and behavioral sciences, said. “When a tribe doesn’t have a freedom of information law, it’s extremely tough for journalists and the public.”

Kemper, who also serves as a Native American Journalists Association Legal Hotline intake liaison, said he believes strongly in freedom of information and tribal sovereignty.

“Each tribe needs to have the opportunity to have a freedom of information act, incorporate freedom of information as a way of helping the people,” he said.

According to the CN FOIA, a public record includes all books, papers, maps, photographs, cards, tapes, recordings or other documentary materials regardless of physical form or characteristics prepared, owned, used, in the possession of, or retained by a public body.

“The requirements under FOIA are that (a request) be in writing to the department with a specific request for the document you are requesting,” CN Attorney General Todd Hembree said. “The department will take it, the process is to have it reviewed by the Attorney General’s Office to see if it meets the requirements of FOIA, and we handle it according to process.”

However, Hembree said there are documents, such as meeting minutes of a public body, that don’t need a formal request.

Each department of the tribe’s executive and legislative branches, after receiving a records request, has 15 business days to fulfill the request. According to the act, if written notification of the response is neither mailed nor personally delivered to the person requesting the documents within the 15 days, the request must be considered denied and the requestor may appeal the denial.

After reviewing the CN FOIA, Joey Senat, Oklahoma State University School of Media & Strategic Communications associate professor, said if a record is obviously public information then the person handling it should know that.

“Anyone should be able to walk up and make a request right there,” Senat, who served on the Society of Professional Journalists Freedom of Information Committee, said. “If the law was written so it was effective, it would allow anyone in the tribe to walk up to a public agency and make a request for a record that’s with that agency or with that official.

“If the record is right there and it can be made a copy, it should be provided on the spot, under the ways our law is written,” he added. “Having a 15-day delay wouldn’t be acceptable under (Oklahoma) state law.”

Hembree said he hasn’t received any complaints about the current process so he assumes it’s working fine. However, he said his staff has been overwhelmed by an increase of requests that come from a select group of people.

“The purpose of the act ¬– and it’s a great purpose – is to make sure that citizens know how their government is run, know how their money is made, know how their money is spent and the system has worked greatly up until October 2011, at which time there had been a dramatic increase in the amount of FIOA (requests),” he said. “That’s always been my number one goal, people will have that right and I, for one, will never stand in the way of that right.”

But Senat said because the CN FOIA gives tribal citizens the right to know what their government does the costs and number of requests shouldn’t matter.

“God forbid that the citizens know what their government is doing and that they want to find out,” he said. “It costs too much and there’s an increase? Well God forbid that the public actually put into effect the statute that says they have a right to know. That’s the purpose of these statutes and people should put them into effect and make requests. That’s why they’re there.”

Senat added that a list of all record requests should also be a public record and anyone should be able to ask for it.

“It’s a way to provide a paper trail so that the public can judge how well their government is responding to records requests,” he said. “Every time they have gotten a request, that’s a record.”

What records are public?

Public records are documents or pieces of information that are not considered exempt or confidential. Under the CN FOIA, certain categories are specifically made public information, however the use of the information for commercial solicitation is prohibited.

Public information includes the names; sex; race; title and dates of employment of all employees of public bodies; administrative staff manuals and instructions to staff that affect a member of the public; final opinions; documents identifying persons confined in any jail, detention center or prison; statements and interpretations of policy; statute and the Constitution; written planning policies and goals and final planning decisions; final CN audits and of its subsidiaries; information in or taken from any account; voucher or contract dealing with the receipt or expenditure of public or other funds by public bodies; the minutes and votes of all proceedings of all public bodies; and reports that disclose the nature, substance and location of any crime or alleged crime reported as having been committed.

“Tribal people expect transparency and accountability from their leaders, and there are a lot of great leaders throughout Indian Country,” Kemper said. “The best leaders tend to recognize transparency.”

The Nation’s FOIA states that any person has a right to inspect and/or copy public records.

“That’s one of the problems with how it is written now,” Senat said of the tribal law. “It should say ‘have the right to inspect and copy.’ It shouldn’t say ‘or.’ You should have the right to inspect a record and make your own copy if it means with a pencil and paper, to write down what you’re reading. Even with technology today, with a cell phone, the simplest thing is to take a photograph of a document.”

Some record copying may require a fee

According to the act, a public body – which is any CN board, commission, agency, authority, any public or governmental body or political subdivision of the Nation, including any organization or agency supported in whole or in part by public funds – may establish and collect fees that do not exceed the actual cost of searching for or making copies of records.

However, records must be furnished at the lowest possible cost and be provided in a form that is both convenient and practical for use by the person requesting copies of the records concerned. Fees may not be charged for examination and review to determine if the documents are subject to disclosure.

Open meetings and their rules

According to Robert’s Rules of Order, an executive session is a meeting or portion of a meeting that is convened in private. Only members of the governing body are entitled to attend but they may invite others to stay at the pleasure of that board, council, committee or commission. A motion is required to go into executive session and a majority must approve it. Those present must maintain the confidentiality of the discussion.

The regular meeting minutes should indicate when the board went into an executive session, what the primary reason was, any formal decisions that were made in executive session and when the board, council, committee or commission came out of executive session.

Investments or other financial matters may be in executive session if disclosure of the deliberations or decisions would jeopardize the ability to implement a decision or to achieve investment objectives.

A record of the board or of its fiduciary agents that discloses deliberations about or a tentative or final decision on, investments or other financial matters is exempt from disclosure as long as its disclosure would jeopardize the ability to implement an investment decision or program or to achieve investment objectives.

The panel may discuss, deliberate on and make decisions on a portion of the annual investment plan or other related financial or investment matters in executive session if disclosure would jeopardize the ability to implement that portion of the plan or achieve investment objectives.

A record of the panel that discloses discussions, deliberations or decisions on portions of the annual investment plan or other related financial or investment matters is not a public record to the extent and so long as its disclosure would jeopardize the ability to implement that portion of the plan or achieve investment objectives.

Matters exempt from disclosure

A public body may, but is not required to, exempt from disclosure information of a personal nature that would constitute unreasonable invasion of personal privacy, trade secrets, records of law enforcement under investigation and documents to proposed contractual arrangements and proposed sales or purchase of property.

Specific, individual salaries are also exempt from disclosure but annual budgets contain position listings without names.

Senat said omitting salaries from the public eye is “fodder for corruption.”

“You can go down to OSU and you can ask to see what I get paid as a state employee,” he said. “There’s no way to figure out who’s getting paid what? The public is the employer. The tribal citizens are the employer. They’re the ones paying the bill. They should be entitled to know who’s being paid what specifically. It should be open because that’s one way to fight corruption. That opens it up to favoritism, political patronage, basic corruption.”

Information that would violate attorney-client relationships, the identity of the maker of a gift to a public body if the maker requests to be anonymous and the identity of an individual who makes a complaint, which alleges a violation or potential violation of law or regulation also may be exempt from disclosure.

Memoranda, correspondence and working papers in the possession of individual members of the executive and legislative branches or their immediate staff are exempt. However, nothing may be construed as limiting or restricting public access to source documents or records, factual data or summaries of factual data, papers, minutes or reports.

Other memoranda, correspondence, documents and working papers relative to efforts to attract business or industry to invest within the CN may be exempt from disclosure. However, any record that is requested and is exempt and not disclosed or is disclosed and marked confidential should have a statement explaining the reasons for that determination.

“It does has a lot of common exemptions,” Senat said. “This is a strength under the law where it says that if they’re going to deny it they have to explain why something is exempt. These statutes can be very strong, but if they’re not enforced they’re worthless.”

Photographs, signatures, addresses, race, weight, height, Social Security number and digitized images from a driver’s license or personal identification cards are also not considered public records.

“Some leaders keep things secret and that could violate the right of the people,” Kemper said. “You see a lot of that throughout Indian Country and the tribe will have to sort that out.”

Kemper added that he believes there are some understandable exceptions such as sacred knowledge.

“Every tribe’s culture is different, that’s why it’s important to create freedom of information that’s a cultural match,” he said.

Penalties for not providing records

Any CN citizen may look to the District Court for a declaratory judgment and injunctive relief in FOIA cases as long as the application is made not later than one year following the date on which the alleged violation occurs or one year after a public vote in public session.

The court may order equitable relief as it considers appropriate and a violation must be considered to be an irreparable injury for which no adequate remedy at law exists.

If a person or entity seeking such relief prevails, they may be awarded reasonable attorney fees and other costs of litigation. If they prevail in part, the court may award them reasonable attorney fees or an appropriate portion.

According to the act, any person or group of persons who willfully and maliciously violates the provisions of the FOIA may be found guilty of a crime and upon conviction shall be fine not more than $100 or imprisoned for not more than 30 days for the first offense. For the second offense, the fine shall not be more than $200 or imprisoned for not more than 60 days and shall not be fine more than $300 or imprisoned for not more than 90 days.
About the Author
Born in Dayton, Ohio, Tesina first started working as an intern for the Cherokee Phoenix after receiving the John Shurr Journalism Award in 2009. Later that year, Tesina received her bachelor’s degree in journalism from Ball State University in Muncie, Ind., and in 2010 joined the Phoenix staff as a reporter.    

In 2006, Tesina received an internship at The Forum newspaper in Fargo, N.D., after attending the American Indian Journalism Institute at the University of South Dakota. She also attended the AIJI summer program in 2007 and in 2009 she participated in the Native American Journalists Association student projects as a reporter. Tesina is currently a member of NAJA and the Investigative Reporters & Editors organization.
TESINA-JACKSON@cherokee.org • 918-453-5000 ext. 6139
Born in Dayton, Ohio, Tesina first started working as an intern for the Cherokee Phoenix after receiving the John Shurr Journalism Award in 2009. Later that year, Tesina received her bachelor’s degree in journalism from Ball State University in Muncie, Ind., and in 2010 joined the Phoenix staff as a reporter. In 2006, Tesina received an internship at The Forum newspaper in Fargo, N.D., after attending the American Indian Journalism Institute at the University of South Dakota. She also attended the AIJI summer program in 2007 and in 2009 she participated in the Native American Journalists Association student projects as a reporter. Tesina is currently a member of NAJA and the Investigative Reporters & Editors organization.

News

BY STAFF REPORTS
03/27/2015 04:00 PM
OKLAHOMA CITY – On April 2, the public is invited to the Oklahoma State Capitol’s first floor rotunda for a program concerning violence against Native women, which will be followed with the Monument Quilt viewing on the capitol’s east lawn. The Monument Quilt is described as a bright red, hand-sewn story of survival. It is made up of numerous 4-square-foot pieces that are created by survivors of sexual assault or domestic violence. There will 400 stories displayed on the lawn for others to read. Survivors and supporters will have the chance to add their stories on their own quilt square following the program and viewing. According to a press release, the Monument Quilt is a physical space that provides public recognition to survivors and reconnects them with their community. The Monument Quilt seeks to change the public perception of who experience sexual violence by telling many stories, not just one. The release states, Native American women suffer from the highest rate of sexual assault in the country, and non-Natives commit 80 percent of those assaults. A staggering 39 percent of Native women will experience domestic violence in their lifetime. The Native Alliance Against Violence is Oklahoma’s tribal domestic violence and sexual assault coalition. NAAV serves tribal programs that provide victims with the protections and services they need to have safe and happy lives. FORCE and the NAAV are partnering to put on the event with hopes of bringing attention to the state of violence against Native women and to reconnect survivors to their community. The April 2 program is at 10:30 a.m. to noon and the quilt viewing is from noon to 3 p.m.
BY STAFF REPORTS
03/27/2015 02:00 PM
PARK HILL, Okla. – The Friends of the Murrell Home Gift Shop have launched a brand new online store, which carries a variety of items relating to Cherokee history and nineteenth century life in Indian Territory. The museum gift shop, housed at the Murrell Home Historic Site, sells history and language books, maps, historic toys, handmade reproductions, souvenirs and more. A new line of heirloom seeds are also available in-store and online. These vegetable, flower and herb seeds are provided by Seed Savers Exchange, which is a non-profit organization dedicated to the preservation of historic seed varieties. The varieties sold at the Murrell Home are representative of nineteenth-century flora that would have been grown in Indian Territory. These vegetables and herbs will be planted in the historic site’s kitchen garden beginning this spring. Cherokee Trail of Tears beans, bloody butcher corn, Cherokee purple tomatoes and Moon & Stars watermelon are just a few of the twenty-four varieties now available for purchase. All of the proceeds from the gift shop and online store benefit the Friends of the Murrell Home, the support organization for the Murrell Home Historic Site. To view the new online store, visit <a href="http://www.mkt.com/murrellhome" target="_blank">mkt.com/murrellhome</a> or <a href="http://www.facebook.com/murrellhome" target="_blank">facebook.com/murrellhome</a>. The historic site is located at 19479 E. Murrell Home Road, three miles south of Tahlequah. The museum store is open from 10 a.m. to5 p.m., Tuesday through Saturday. For more information, call 918-456-2751.
BY STAFF REPORTS
03/27/2015 10:00 AM
WASHINGTON – On March 25, Principal Chief Bill John Baker delivered testimony before the U.S. House Interior Appropriations Subcommittee in Washington, D.C. Baker addressed the necessity for increased Indian Health Service funding and the significance of contract support costs. “Cherokee Nation and other tribes have successfully litigated three cases before the U.S. Supreme Court. These cases established the federal government is legally obligated to fully fund BIA and IHS contract support costs,” Baker said. “Last year, we negotiated a $29.5 million settlement with IHS to collect nearly a decade’s worth of underpaid contract support costs. Unlike the IHS claims, resolution to BIA’s case has been slow. We request that the Subcommittee encourage BIA to work harder to reach a settlement with tribes. We also request that the Subcommittee support the president’s fiscal year 2016 proposal to fully fund IHS and BIA contract support costs.” Baker also discussed the CN’s commitment to invest its own $100 million for new and improved health facilities, but said IHS needs to pay its share for staffing doctors and nurses. “We have invested more than $100 million from our casino profits to build, expand and renovate our health care facilities. We are the largest tribal health provider, seeing more than 1 million patient visits in 2014. Last year, I testified before this Subcommittee and requested the IHS Joint Venture Construction Program be reopened,” he said. “We are deeply grateful to Rep. Cole, Ranking Member McCollum, and members of the Subcommittee for your efforts that resulted in IHS reopening the program in fiscal year 2014. Cherokee Nation was selected as a Joint Venture project, and the tribe will fund construction of a new health care facility. We request that the Subcommittee ensure IHS meets its obligation by funding the staffing and operations for our Joint Venture facility.” Rep. Chris Stewart (R-Utah) chaired the hearing. He was joined by ranking members Betty McCollum (D-Minn.), Rep. Tom Cole (R-Okla.) and Rep. Derek Kilmer (D-Wash.).
BY STAFF REPORTS
03/26/2015 04:00 PM
TAHLEQUAH, Okla. – To help with staffing, travel and community members in need, the Cherokee Nation donated $30,000 to Friends of the Murrell Home, War Pony Community Outreach and the CN Color Guard. Friends of the Murrell Home support and promote the Murrell Home Historic Site in Park Hill. The Murrell Home was built following the Trail of Tears for then CN Chief John Ross’ niece, Minerva Ross Murrell. The group uses donations to help cover museum staffing. “Without this donation from the Cherokee Nation, a Cherokee citizen who works for us in the Living History Program would be out of a job,” said Murrell Home Site Manager David Fowler. “Because of that, we’re very appreciative of the help the tribe provides.” War Pony Community Outreach is a nonprofit organization in Cherokee County dedicated to helping people across the tribe’s 14-county jurisdiction with living expenses. The group plans to use the donation to buy beds, washers, stoves and other household appliances. “Whatever a community member that qualifies needs, we help provide it,” said Raymond Vann, who works with the outreach. Making appearances at public events, funerals or other venues across the country, veterans who act as cultural ambassadors for the tribe make up the CN Color Guard of Native American. The Color Guard will use the donation for travel expenses.
BY WILL CHAVEZ
Senior Reporter
03/25/2015 02:00 PM
WELLING, Okla. – A non-Cherokee couple that recently tried to partake in a new master-apprentice Cherokee language course offered by the tribe’s Cultural and Community Outreach is saying they were asked to leave the course after three sessions. Doug and Judy Cotter of Welling tried to participate in the program in February after receiving a call from a participant. Doug said the pilot program pays three Cherokee speakers to interact with four students, so he said there was plenty of room in the classroom for him and his wife. “I received a call from one of the participants that knew we were interested in the Master-Apprentice Program. They stated they would like for us to come sit in just as another example of people that could learn the language because he knew we had been studying it several years over here at NSU (Northeastern State University),” Doug said. “We were tickled to death and jumped at the chance.” However, after three sessions, Doug said CCO Director Rob Daugherty called them into his office and told them they could no longer attend classes. Doug added that he and Judy never got a straight answer as to why they couldn’t attend anymore. “He (Daugherty) said ‘when my students start complaining I have to do something. This is for people who are being paid to be here. It’s for participants only, and you guys just can’t be here,’” Doug said. He said he could not imagine that he and his wife somehow disrupted the classes they attended because mainly they just sat and listened to the Cherokee speakers. The program aims to teach Cherokee Nation citizens to become second-language Cherokee speakers so that they can go into their respective communities and teach others in an effort to revitalize the language, Daugherty said. Citizens will meet eight hours per day on weekdays through this fall, according to the program. “It’s a very demanding schedule,” Daugherty said. “As CCO’s director, when it was brought to my attention by other participants that Mr. and Mrs. Cotter were attending classes regularly and not merely observing, nor were they Cherokee Nation citizens, or a member of any federally-recognized tribe that I know of, I simply explained to the couple that our program is for Cherokee Nation citizens, and we simply did not have the space, nor funding to allow them to be participants.” Daugherty said the class is taught in a small office space and participants are paid stipends. Occasionally there are visitors who observe a class, and the Cotters were allowed to observe by one of the instructors. Doug said he went in strictly as a volunteer and he and his wife did not expect to get paid. “You have to be a member of the Cherokee Nation to even be considered for payment, so I didn’t expect to get paid,” he said. “I just think it would be a privilege to get to participate.” He said he was even willing to teach the language for two years after completing the program, which is required of all students enrolled in the program. “We welcome sharing our Cherokee language, and there are other online and community Cherokee language courses that are free and open to the public that the Cotters can utilize,” Daugherty said. “Moving forward, in our application for this program, we require participants be Cherokee Nation citizens, apply, be accepted and sign a contract with CCO, in an effort to avoid any public confusion.” Doug said at first he was angry because he was invited to partake in the program and then was told he couldn’t. “I didn’t understand. You’re volunteering, and you’re not causing any problems. Why would they not want someone to learn the language? In my opinion, the more people that learn it, the better. If the language is in dire straits, and we all know it is, the more people that can learn it and share it and spread it and teach it, the better off you’re going to be,” he said.
BY JAMI MURPHY
Reporter
03/25/2015 12:00 PM
TAHLEQUAH, Okla. – The Cherokee Nation’s Election Commission, candidates and representatives of candidates drew for ballot order during a March 24 special meeting after the EC ruled on candidate eligibility a day earlier. Candidates, their respective representatives and volunteers drew from a jar containing numbered chips that determined the order in which candidates would appear on the June 27 general election ballot. This year, 36 candidates are vying for eight Tribal Council seats as well as the principal chief and deputy chief positions. Those elected take office on Aug. 14. For the principal chief seat, candidate Will Fourkiller, a representative in the state House, received the first spot. Deputy Chief S. Joe Crittenden drew the second ballot spot for Principal Chief Bill John Baker. Former CN Community Services Group Leader Charlie Soap drew the third spot, while former Principal Chief Chad Smith will be fourth on the ballot. For the deputy chief seat, Tribal Councilor Lee Keener drew the first spot followed by incumbent S. Joe Crittenden for the second position. Smith, Tribal Councilor Julia Coates’ representative, drew the third spot. Coates has appealed to the tribe’s Supreme Court an EC decision that states she is not eligible to run for the deputy chief seat because she did not meet residency requirements. However, the EC still drew her ballot placement in the chance the court rules in her favor. If the court rules against Coates, her name would be removed from the ballot. For the Dist. 1 Tribal Council seat, a representative drew the first spot for Rex Jordan and candidate Ryan Sierra drew the second spot. For Dist. 3, Brandon Girty got the first spot, which was drawn by his daughter. Incumbent David Walkingstick’s representative drew the second spot. Kathy Kilpatrick drew the third spot, while Brian Berry’s representative drew the forth spot. Larry Pritchett drew the last spot. For Dist. 6, Natalie Fullbright’s representative drew the first spot for her, while Bryan Warner drew the second position. B. Keith McCoy got the third slot, and Ron Goff drew the fourth. For Dist. 8, Corey Bunch drew the first spot, while a representative for Shawn Crittenden drew the second. For Dist. 12, incumbent Dick Lay drew the first spot and his opponent Dora Smith Patzkowski got the second. For Dist. 13, a representative drew the first spot for former Tribal Councilor Buel Anglen, while another representative drew the second spot for Kenneth Holloway. For Dist. 14, a representative for Keith Austin, a former Cherokee Phoenix Editorial Board member, drew the first spot, while William “Bill” Pearson drew the second position. For the No. 1 At-Large seat, Wanda Hatfield drew the first spot, while Tommy Jones drew the second. Pamela Fox got the third spot, while Betsy Swimmer drew the fourth. Benjamin McKee drew the fifth spot, and Trey Brown drew the sixth. Deborah Reed got the seventh spot, while Linda Leaf-Bolin got the eighth. Former CN Supreme Court Justice Darell Matlock drew for the ninth spot, and Shane Jett got the last position on the ballot. After drawing for ballot positioning, the EC also drew for watcher names that were provided by candidates for some voting precincts. More than 40 names were drawn. Two names, if available for that precinct location, were drawn as well as an alternate, if possible. The EC also drew several watchers for the four days of in-person absentee voting in Tahlequah. For more information, visit <a href="http://www.cherokee.org/OurGovernment/Commissions/ElectionCommission.aspx" target="_blank">http://www.cherokee.org/OurGovernment/Commissions/ElectionCommission.aspx</a> or call 918-458-5899.