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
01/30/2015 12:00 PM
STILWELL, Okla. – A disabled Cherokee Nation citizen with a love for hunting was able to partake in hunts thanks to the assistance of a local game warden and an eye surgeon from Sherman, Texas. Oklahoma Game Warden Jared Cramer knew of CN citizen Rick Tabor’s love of hunting and his desire to hunt even though he was born disabled and confined to a wheelchair. With the help of Cramer and eye surgeon Bob Burlingame, Tabor was able to realize his dream of hunting elk this past fall. “Cramer had come to know Rick, and because of Rick’s desire to hunt, despite physical disabilities that would sideline most, he was determined to give this bright young man an opportunity to hunt,” Burlingame said. Burlingame purchased a ranch in Sequoyah and Adair counties and turned it into a wildlife haven while maintaining it as a timber and cattle ranch. Four years ago, Burlingame and Cramer met when Cramer visited Burlingame’s ranch. From that meeting, Burlingame said, Cramer and Tabor were to form an unusual alliance, the purpose of which was to enable Tabor to pursue his hunting dreams. Sam Munholland of the Oklahoma Youth Hunting and Shooting Sports Association assisted Burlingame and Cramer in locating a device that would allow Tabor to hunt. The wheelchair device was procured from beadaptive.com, a web-based company specializing in devices designed to aid disabled hunters. It was equipped with a brand new 30-06 rifle topped with a pistol scope and presented to Tabor for high school graduation this past spring. Cramer and Tabor wasted no time in sighting in the new rifle. After dispatching several hogs on Burlingame’s ranch later in the summer, Tabor’s first fall hunting trip in November proved successful after he harvested a buck and a doe. Cramer again visited with Burlingame regarding hunting possibilities for Tabor. Cramer and Tabor hoped to have a more challenging hunt. Three years previously, Burlingame had stocked Hunt Mill Hollow Ranch with elk, and a trophy bull was on the agenda as Tabor’s next hunting adventure. In December, the team of Cramer, Tabor, Burlingame and fellow hunter B.J. Latta waited patiently for an opportunity. Cramer, who had long wanted Burlingame to hunt with Tabor, gave up his spot in the hunting blind, taking a position farther south to watch the action. “Suddenly B.J. hoarsely whispered, ‘I see horns.’ Sure enough, a large bull loomed in the short brush adjacent to the trail they were hunting. After 30 tense minutes of wondering whether the massive bull would step out, B.J. once again exclaimed, ‘He’s stepping out,’” Burlingame said. “Rick readied himself for the shot, guiding his gun with a special aligning device that he operates with his mouth. After lining up his crosshairs just behind the bull’s shoulder, he coolly announced ‘I’m about to take the shot.’ The rifle roared, and the bull staggered as Rick’s bullet found its mark, a perfect hit. He followed up with a second shot to put the bull down for good.” Tabor’s hunting friends celebrated back at Burlingame’s barn. The bull was a true trophy for Tabor, Burlingame said. “Thus ended a fantastic hunt by a gutsy young man with physical challenges that most would consider insurmountable. It should be noted that none of this would have occurred without the hard work and dedication of Jared Cramer, who befriended Rick and tirelessly worked to make his hunting dreams a reality,” Burlingame said.
BY STAFF REPORTS
01/29/2015 12:17 PM
WEST SILOAM SPRINGS, Okla. – The eighth annual Reindeer Games Poker Tournament at Cherokee Casino & Hotel West Siloam Springs helped raise $1,000 for the Oaks Indian Mission. The funds were raised to ensure that children would be able to celebrate important milestones in 2015. “We are very happy that Cherokee Nation Entertainment and Cherokee Nation Businesses continue to support the children we care for,” Oaks Indian Mission Executive Director Vance Blackfox said. “Gifts such as this and the ongoing support from casino employees and guests are crucial to providing the children with structure, a place to call home and educational opportunities that will bring hope for them and their futures.” Those participating in the tournament were given an opportunity to purchase additional poker chips. The money generated from the rebuy was designated as a contribution to OIM, raising approximately $1,000. “I’m proud to see our employees working hard to make sure the children of Oaks Indian Mission feel special throughout the year,” Tony Nagy, Cherokee Casino & Hotel West Siloam Springs general manager, said. “This is something they have continued to be passionate about. Making birthday memories is important for any child, but these children especially need loved during their special day.” Aside from the donation of money, CNE, CNB and OIM collaborate year round to help better the lives of each child at the mission. Employees from CNE and CNB volunteer at the mission and serve as storytellers, mentors and tutors. Cherokee Casino & Hotel West Siloam Springs employees also provide monthly birthday cakes to the youth at OIM. OIM cares for Native American youth ages 4 to 18. They house approximately 36 youth during the school year with a majority of them staying during the summer months. For more information, visit <a href="http://www.oaksindianmission.org" target="_blank">www.oaksindianmission.org</a>.
BY STAFF REPORTS
01/27/2015 04:00 PM
TAHLEQUAH, Okla. – Cherokee Nation officials have told tribal employees that they will now text or call employees regarding possible office closings or late start times. “This administration wants to ensure our employees are informed, and quickly, about decisions that affect their work day,” Principal Chief Bill John Baker said. “In the past, when a foot of snow or ice patches covered the ground, our employees called our complex early that morning to listen to an operator recording to see if tribal offices would be open at 8 a.m., or they would text co-workers or bosses to ask.” To alert employees earlier the tribe will use Blackboard Connect, “a mass notification service.” “This is how it works: the system allowed our IT department to plug in all Cherokee Nation issued employee cell phones into a call list. When inclement weather strikes and our administration makes a decision to close the complex, or start work later than normal, employees will receive a phone call or text message, or both, as early as possible with such updates recorded by our Communications office,” according to a CN Communications release. “School systems, such as Fort Gibson, and city governments, such as Tahlequah, use similar messaging systems to keep their stakeholders informed.” CN employees who use a personal cell phone can send a name, title, department and phone number to communications@cherokee.org if they would like to receive the same notifications. “We realize it may take using this system a few times before it’s seamless, but I believe this will be another tool that increases the safety for employees and keeps you all better informed,” the release states. “Employees may also check Cherokee Nation Facebook and Cherokee Nation Twitter for the latest inclement weather related work updates as well.”
BY ASSOCIATED PRESS
01/27/2015 11:01 AM
Tahlequah Sequoyah certainly has picked a proper time to peak during the season. The Indians and Lady Indians have taken advantage of a grueling January slate. The boys (11-5) are riding a seven-game win streak and the girls (13-3) have a six-game win streak of their own, too. Saturday, Jan. 24, Sequoyah claimed the boys and girls championship trophies at the Tri-State Classic in Jay. That type of domination couldn’t have come at a better time with No 1 boys and girls’ basketball teams in Class 4A coming to Sequoyah on Tuesday, Jan. 27. Fort Gibson is a combined 27-1, as it has dominated its opponents throughout the season consistently. The girls game will start at 6:30 p.m. and the boys will follow at 8 p.m. The same night, Sequoyah will honor a group who helped pave the way for basketball success at SHS--the Native American “Dream Team,” of 1998. “This was the team that broke the ice, being the first SHS team to reach the state basketball tournament,” Sequoyah Athletic Director Marcus Crittenden said. Leroy Qualls, who is now a superintendent, was the head coach of the boys team. Also, Cherokee Nation Tribal Councilor David Walkingstick was a member of the team, too, among notables. In addition to the ceremony honoring the team, an autographed basketball from a notable Oklahoma City Thunder guard can be won, too. “Thanks to a generous donation from BancFirst of Tahlequah, we have a basketball autographed by Russell Westbrook that we will raffle off the same night,” Crittenden said.
BY JAMI MURPHY
Reporter
01/27/2015 08:15 AM
CATOOSA, Okla. – The Cherokee Nation and Cherokee Nation Entertainment purchased three properties each in 2014. The properties total approximately 152 acres with the largest being in Rogers County. CNE purchased 89.98 acres on Sept. 30 from John and Velma Mullen. According to Rogers County records, the cost was $3.7 million. The land is located west/northwest of CNE’s Cherokee Hills Golf Course. The golf course is located at the Hard Rock Hotel & Casino Tulsa. The Cherokee Phoenix reported in September that the acquired property would be used for the golf course. According to artist renderings, “Cherokee Outlets” a premium outlet shop and entertainment and dining zone that was announced on Sept. 10 is expected to be built behind the Hard Rock and could possibly use land occupied by the golf course and its clubhouse. CNB officials said they were awaiting a master plan for “Cherokee Outlets” as well as a plan from a golf course architect. “We are in the process of negotiating with the golf course architect. I anticipate getting that agreement in place in the next couple of weeks and starting to do some preliminary work there,” CNB Executive Vice President Charles Garrett said in September. According to CNE Communications, CNB officials are still planning work to be done on the golf course. CNE also purchased approximately 6 acres for $256,500 in Sequoyah County, according to county records. Cherokee Nation Property Management purchased the land from Benjamin and Judy Cowan and later deeded it to Cherokee Nation Construction Resources for housing. CNCR will build 23 homes that the Housing Authority of the Cherokee Nation will purchase after construction is complete. On July 2, Jim and Connie Jolliff sold 57.75 acres in Delaware County to CNPM for $85,000, according to county records. “This property is directly south/east of and abutting the Saline District Courthouse property owned by the Cherokee Nation,” CNE Communications officials said. However, CNB officials did not release the land’s intended use citing “competitive information exemption.” The three properties the CN bought are located in Cherokee County. Two properties were purchased from HLD Investments, a corporation in Tahlequah owned by the Mason and Minor families. On Nov. 3, the CN purchased a property and its building known as the “Clinic in the Woods,” which is located near W.W. Hastings Hospital off Boone Street. According to CN Communications, the tribe paid $1,078,500 for the 1.536 acres, and the building’s anticipated use will be for the tribe’s Behavioral Health Program. Also purchased on Nov. 3 was the Cascade property totaling less than 1 acre. It’s located near Northeastern Health System Tahlequah and Hastings Hospital. The property cost $771,500 and will be used for Health Services. The tribe also bought property located at 120 E. Balentine Road in Tahlequah for its motor vehicle tag office. It was purchased on Jan. 30 from Don Smith for $300,000, according to county records.
BY STAFF REPORTS
01/26/2015 03:45 PM
LINCOLN, Neb. – Vision Maker Media will be offering summer, or fall, 10-week, paid internships for Native American and Alaska Native college students at various public TV stations. “Providing experience for Native students in the media is vitally important to ensure that we can continue a strong tradition of digital storytelling,” Shirley K. Sneve, Vision Maker Media executive director, said. “We are grateful for the support of local PBS stations in helping us achieve this goal.” During the internship at least two short-form videos on local Native American or Alaska Native people, events or issues for on-air or online distribution should be completed. With major funding from the Corporation for Public Broadcasting, the purpose of this paid summer internship is to increase the journalism and production skills for the selected college student. One of the major goals of the internship will be to increase the quantity and quality of multimedia reporting available to public television audiences and other news outlets. Students interested in applying for this internship opportunity must apply online at <a href="http://www.visionmakermedia.org/intern" target="_blank">www.visionmakermedia.org/intern</a> by March 24. The application process requires submission of a cover letter, resume, work samples, an official school transcript and a letter of recommendation from a faculty member or former supervisor. Top applicants will be notified in late April with the internships spanning between May 1 and Dec. 18. Up to 10 public television stations will be selected to host an intern and an award of $5,000 to the station will be used to provide payment to the intern, cover any travel expenses and administrative fees. Stations that would like to be considered for hosting a public media intern must apply online at <a href="http://www.visionmakermedia.org/intern" target="_blank">www.visionmakermedia.org/intern</a> by Feb. 3.