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.

News

BY ASSOCIATED PRESS
01/19/2017 04:00 PM
ALBUQUERQUE, N.M. (AP) — An Oklahoma-based American Indian tribe is accusing the National Indian Gaming Commission of shirking a federal court order to reconsider an earlier decision that prohibited the tribe from conducting gambling on its land in southern New Mexico. Attorneys for the Fort Sill Apache filed a motion Tuesday, calling for the commission to be held in contempt. A previous order required the commission to reconsider its 2015 decision as part of a settlement process after receiving an opinion from the U.S. Interior Department on the tribe's eligibility to conduct gaming at Akela Flats, New Mexico. The commission notified the tribe last week there were no grounds for reconsideration. The commission did not immediately return a call seeking comment. Fort Sill Chairman Jeff Haozous says the commission is violating the tribe's right to a speedy resolution of the gaming dispute.
BY ASSOCIATED PRESS
01/19/2017 10:00 AM
SHAWNEE, Okla. (AP) — A Shawnee casino security guard who shot himself after fatally shooting a fellow officer has died. The Oklahoman reports 28-year-old Justin Wells entered the Grand Casino on Jan. 10, shot and killed 22-year-old Matt Palmer and then turned the gun on himself. An online obituary says Wells was hospitalized and died Wednesday. FBI spokesman Terry Weber says that Wells had not yet been arrested. The agency is handling the case because the casino sits on trust land for the Citizen Potawatomi Nation, which also owns and operates the casino. Potawatomi spokeswoman Jennifer Bell says Palmer and Wells were both security guards at the casino, who are not allowed to carry guns. Bell declined to comment on the shooting. The tribe says Palmer was hired in August, and Wells in 2012.
BY WILL CHAVEZ
Assistant Editor – @cp_wchavez
01/18/2017 04:15 PM
GROVE, Okla. – Cherokee Nation, Cherokee Nation Businesses and Grove officials on Jan. 17 dedicated the Cherokee Casino Grove with a ribbon-cutting and grand opening. The tribe’s 10th casino is expected to bring 175 jobs to northern Delaware County. Principal Chief Bill John Baker said the jobs means employees would be able to take advantage of health insurance, retirement plans and other benefits to better their lives. He added that the casino would also bring more sales tax revenue to Grove. Most importantly, he said, the casino means there would be more funding to provide health care in northeastern Oklahoma. “You don’t have to drive very far to the south to see where we took $100 million dollars and used part of it to build a new clinic in Jay, Oklahoma. So each and every one of these employees that work here can come to work each and every day knowing they are making the lives of their parents, their grandparents and their children better because these dollars...go back into services, scholarships for our kids, builds houses for our people and provides better health care,” he said. The facility offers 400 electronic games, a full-service bar, live music venue, dance floor and restaurant serving lunch and dinner. The rustic, lodge-style venue features an outdoor patio and event space for hosting private and community events. CNB CEO Shawn Slaton told casino employees the fruits of their labor are helping Cherokee people. Along with thanking CNB employees, he thanked Grove’s leaders, Delaware County officials, CN administration officials, Tribal Councilors, CNB management and the construction company for their efforts in helping finish the casino in eight months. “We always had our eye on Grove. We felt with the lake here and the population that comes in the summer it was a good area to take a look at. We did our market surveys and market studies and that supported the decision to go forward with an investment in a property like this,” Slaton said. “We worked on this quite a while and finally made it happen. We’re happy to be here, and we hope that this is just the start for what we do with this facility.” He acknowledged the casino does have “a lot of competition” from area tribal casinos, but he expects people from Missouri and Arkansas to frequent the casino. “The one thing we have that they (competition) don’t is the lake right next door, and we know Grove blossoms in the spring and summer and the early fall, and we’re positioned well to take part in that,” Slaton said. The Red Stone Construction Company started work on the 39,000-square-foot casino in March and finished in December. The casino is located near Highway 59 and E. 250 Road, northwest of Grove. “It’s beautiful. Eight months ago...we were here looking to the future to see what this was going to be, and now here it is. What’s more exciting is what we have to look forward to in 10 years or five years or three years,” said Grove Mayor Marty Follis. “I can’t wait for them to knock out a wall in this place and start expanding. We’ve got a big future ahead of us.” Follis said the casino coupled with the popular 64-mile long Grand Lake o' the Cherokees about 200 yards from the casino should be a winning combination. “It’s a great advantage that we have. We are super excited. It’s a great partnership between the city and the Cherokee Nation,” Follis said. Based on what happened in Rogers County when the tribe expanded the Hard Rock Hotel & Casino, the intersection of Hwy. 59 and E. 250 Road in Grove is bound to see tremendous growth, Tribal Councilor Harley Buzzard said. Buzzard, whose district includes Grove, said he is glad casino profits would go toward health care and other services and that the facility created jobs. “We just recently opened a clinic in Jay (about 10 miles south of Grove), which brought over 100 jobs to Jay, so Delaware County is on the move,” he said.
BY STAFF REPORTS
01/18/2017 04:00 PM
TAHLEQUAH, Okla. – More than 30 members of “The Association of Mary,” a Brazilian Christian organization, visited the Cherokee Nation on Jan. 3 to offer prayers for unity and peace in 2017. The group held a cultural and informational exchange with tribal officials. A representative from the association said prayers are offered daily for Indigenous populations in North and South America. Secretary of State Chuck Hoskin Jr. addressed the group and thanked them for traveling to learn firsthand about issues facing tribal citizens in America, including the protection of natural resources. “Now more than ever we should embrace an opportunity to bond with people of goodwill all over the world, people who are praying for our wellness and success,” Hoskin said. “They traveled thousands of miles to learn more about Indian issues, history and spirituality. Seeing this global support reinforces just how important and powerful unity can be.”
BY TRAVIS SNELL
Assistant Editor – @cp_tsnell
01/18/2017 01:15 PM
OKLAHOMA CITY – On Jan. 17, Cherokee Nation citizen and Dist. 86 Rep. Will Fourkiller refused to appear before the House of Representative’s committee that is investigating him and another state representative for sexual harassment claims. The Stilwell native said he would only speak to the Special Investigation Committee if the proceeding was open to the public. According to reports, the committee has been hearing from witnesses in only closed sessions. “Though uncertain of the precise allegation, I am certain I have nothing to hide,” Fourkiller told Rep. Josh Cockroft, R-Wanette, in a letter. Cockroft chairs the committee. “A confidential, closed-door proceeding does not provide the equitable forum to repair my character and reputation.” Fourkiller is under investigation for a sexual complaint lodged against him in April 2015 by a female high school page. “That was the extent of what I was told,” Fourkiller said on Jan. 17 of his 2015 meeting with a House attorney and an employee of the House chief clerk. “The page was not identified and I did not inquire. I denied anything improper but immediately shied away from my normal interaction and role with the page program for that week out of an abundance of caution.” According to the program, high schools students from the state server as pages for a week during regular legislative sessions and do interact with legislators. Fourkiller on Jan. 11 said he was made aware in 2015 that a page had indicated he had said something that made her uncomfortable and he had apologized. “I do not know what I did or said, but whatever it was I certainly didn’t mean to do it, and I apologized,” he said. He added that the 2015 incident is the only one that he was made aware of by House staff. The House has declined to release the complaint, citing personnel reasons. Cockroft on Jan. 17 defended the investigation and said making the committee meetings public would discourage wronged employees from coming forward. “The sole reason for holding these meetings in private is to protect the confidential information of victims and unelected witnesses — not to protect lawmakers,” he said. “In order to have a workplace where employees feel protected and valued, it is vital that we guard the privacy of those who make claims of harassment and discrimination.” Cockroft said the committee would make its findings public and that it could recommend the House take disciplinary action against a member, including up to expulsion. According to reports six Republicans and three Democrats comprise the committee. However, Democrats – Rep. David Perryman, Rep. Steve Kouplen and Rep. Meloyde Blancett – have refused to be involved because of the committee’s secrecy rules. The committee was formed in response to public outrage over a settlement paid to a fired legislative assistant who had accused Rep. Dan Kirby, R-Tulsa, of sexual harassment. The former assistant, Hollie Anne Bishop, complained the House fired her in November 2015 in retaliation for reporting Kirby had sexually harassed her. Former House Speaker Jeff Hickman approved the $44,500 settlement of her wrongful termination claim shortly before he left office. Officials said there was no financial settlement in the complaint against Fourkiller. Fourkiller said he and his family were leaning on God through the ordeal. “We have not lost faith. In fact, it is growing stronger. We know that God is good and at the end of all this there is something great waiting for us.” Fourkiller was first elected to the Dist. 86 seat in 2011. He was re-elected in 2013 and 2015. He also ran for principal chief of the CN in 2015, finishing third at 10.58 percent with 2,040 votes.
BY JAMI MURPHY
Senior Reporter – @cp_jmurphy
01/16/2017 10:00 AM
TAHLEQUAH, Okla. – The Cherokee Nation’s Election Commission continues to prepare for the 2017 Tribal Council elections with less than a month before people begin filing for candidacy. At the commission’s Jan. 10 meeting, records showed that 40 people had picked up or requested candidate packets from the commission. According to records, three people who picked up packets but do not intend to file are Lisa Trice, who got a packet for education purposes; Commissioner Martha Calico, who got one for reference; and Cherokee Phoenix Senior Reporter Jami Murphy, who got a packet for the news organization. The candidacy filing period is scheduled for Feb. 6-9. At the Jan. 10 meeting, EC Administrator Brooke Tillison reported that there were 66,433 CN citizens registered to vote, which is more than 200 less than the previous month after removing voters who had died but were still registered. Also during the meeting, Commissioner Carolyn Allen asked to be recognized and requested to speak on her own behalf. “There were some comments that were made last month in the December meeting that I consider to be a direct attack on my character. And I thought long and hard about how to address this issue, but I have chosen and I’m going to take the high road on this issue,” Allen said. At the December meeting, Commissioner Teresa Hart read a statement regarding her motion to accept new resumes for the fifth commissioner’s spot that is in holdover after the expiration of Allen’s term. At that meeting, Hart said “we need to vote whether to cast a vote to keep seat No. 5 as is or move to open it up for replacement.” She also read a statement regarding Allen and her actions while on the commission. <a href="http://cnmediav1.cherokee.org/vod/Phoenix/News/2017/vid_170111_CNECregMtg_rjg_wc.mp4" target="_blank">Click here to watch</a>the January meeting <a href="http://cnmediav1.cherokee.org/vod/Phoenix/News/2016/vid_161213_CNECregularMeeting_rjg_wc.mp4" target="_blank">Click here to watch</a>the December meeting.