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 TRAVIS SNELL
Assistant Editor – @cp_tsnell
02/11/2016 11:30 AM
STILWELL, Okla. – According to Adair County court records, a Cherokee Nation marshal on Jan. 12 arrested CN employee Joshua Lee Littlefield, 26, for claiming ownership of tribal equipment that was pawned at a shop in Stilwell. Court documents state that James Harper, a Cherokee Nation Marshal Service investigator, arrested Littlefield for pawning an Infocus projector to H&H Pawn Shop on or about Dec. 7 and signing an ownership certificate for the projector when it belongs to and was stolen from the CN. According to state law, any person selling or pledging property to a pawnbroker who uses a false declaration of ownership shall be guilty of a felony, upon conviction. The fine for a violation shall not exceed $500. Court documents show District Court Judge Liz Brown on Jan. 11 issued an arrest warrant and a $3,000 bond. Records state the warrant was served on Jan. 12 and that Littlefield posted bond that day. According to court records, Littlefield on Jan. 20 pleaded not guilty to one felony count of false declaration of ownership to a pawnbroker and that he was to reappear on Feb. 17 in Adair County District Court. In a Feb. 10 email, Chrissi Nimmo, CN senior assistant attorney general, said the CNMS was investigating possible theft of electronic equipment but did not state if Littlefield was the focus of that investigation. “Regarding…inquiry regarding J. Littlefield, and his state arrest for ‘false declaration of ownership of pawn,’ I can tell you that the Marshal service has an open investigation regarding possible theft of electronic equipment. Because it is an open investigation, we are unable to release any additional details at this time,” Nimmo wrote. Human Resources officials said Littlefield, as of Feb. 10, still worked for the tribe as a health technical analyst for Health Services’ Information Technology department. CN Communications officials added that Littlefield was on leave, but didn’t specify what type. As of publication, the Cherokee Phoenix attempted to contact Littlefield for comment but was unable to reach him. Court records show no attorney listed for Littlefield.
BY JAMI MURPHY
Reporter – @cp_jmurphy
02/10/2016 02:30 PM
TAHLEQUAH, Okla. – The Cherokee Nation’s Election Commission on Feb. 9 voted to recommend election law changes that will go before the Tribal Council’s Rules Committee on Feb. 17. Election Commissioner Carolyn Allen made a motion that the EC adopt the law changes that were discussed during the EC’s Policy Committee meeting. Allen then made a motion to recommend those changes to the Tribal Council. One election law change the EC recommended defines “term” to mean a full four years in which the elected or appointed officer may perform the functions of office…and shall not include the remainder of any unexpired or partial year. Another recommendation adds language that fines $5,000 to any person who fails to file as a candidate for office after receiving in-kind contributions and/or raised funds in excess of $1,000. Also on Feb. 9, the EC voted to purchase a safety deposit box and selected the commissioners and staff needed to be able to retrieve the box. The Rules Committee is scheduled to meet at 1 p.m. on Feb. 17. The election law amendment item is No. 8 under New Business, according to the Rules Committee agenda.
BY STAFF REPORTS
02/09/2016 04:30 PM
CLAREMORE, Okla. – Steve Gragert, former Will Rogers Memorial executive director, will open the 2016 Milam Lecture Series telling about his Aug. 15 visit to the plane crash site that claimed the lives of Will Rogers and Wiley Post. Rogers and Post died Aug. 15, 1935, in Point Barrow, Alaska. The lecture will be at 7 p.m. on Feb. 18 in the Will Rogers Memorial Museum Theatre in Claremore. Admission is free and open to the public. Gragert, who started his involvement with Will Rogers in 1967 working on the Will Rogers Research project at Oklahoma State University, was named museum director in 2006, serving until 2014. He edited or co-edited 17 of the 22 volumes in the scholarly series “The Writings of Will Rogers,” published by OSU and two volumes of “The Papers of Will Rogers.” Gragert is also expected to share his most recent research on Will Rogers the humanitarian. For more information, call 918-341-0719 or toll free 1-800-324-9455.
BY JAMI MURPHY
Reporter – @cp_jmurphy
02/09/2016 01:15 PM
GLENPOOL, Okla. – Deputy Principal Chief S. Joe Crittenden and Cherokee artist Bill Glass Jr. were honored at the 2016 Greater Tulsa Indian Art Festival on Feb. 5 at the Glenpool Expo Center. As part of its 30th anniversary, the GTIAF honored veterans and Native Code Talkers. Crittenden, who served in the U.S. Navy during the Vietnam War, said he was surprised and humbled at being selected as the honorary chairman of the GTIAF. “The theme of this year’s festival was honoring our veterans and Code Talkers,” he said. “CNB (Cherokee Nation Businesses) represented the Cherokee Nation with a sponsorship at the Bear level, $5,000.00. It is my understanding that we have helped with this event in the past.” According to the GTIAF program, Crittenden is a champion for the rights and privileges of American military veterans, and during his tenure as deputy principal chief he has supported programs to better serve the brave men and women who have served the United States. Among the featured artists was Glass, who was honored as the elder artist. According to the GTIAF, the festival annually honors a Native American artist whose support of American Indian art has been extraordinary throughout his or her lifetime. “It’s an honor and its fun to see the new artists that are coming up and doing so good. I always think of art as cultural retention for our tribes,” Glass said. “This is the first time in a long time that I’ve been here. Some friends nominated me and it’s an honor to be selected.” This year’s featured artist was Choctaw Nation citizen Gwen Coleman Lester, who paints and draws Choctaw history, legends and culture. According to the GTIAF, “Lester began her artistic career in the commercial sector and gradually moved to fine art working in colored pencil, charcoal, pastel, watercolor, acrylic, and occasionally oils.” A primary mission of the festival has been to provide scholarships to Native students. Money raised via sponsorships and auctions helps aid that cause. The weekend event included an art market, cultural demonstrations, silent and live auctions, honor dances and Cherokee fiddling. “Today the Greater Tulsa Indian Art Festival is a national premier juried art show, which showcases Native art, cuisine and entertainment. Most importantly, many Native students have been recipients of the Festival’s scholarship program. Scholarships began in the early 1990s,” a GTIAF official said. The art festival is a project of the National Indian Monument and Institute, a national non-profit 501(c)(3) organization.
BY TRAVIS SNELL
Assistant Editor – @cp_tsnell
02/09/2016 08:45 AM
TAHLEQUAH, Okla. – Officials with the Cherokee Nation’s Election Commission are urging CN citizens who want to vote in the 2017 Tribal Council elections to register to vote or ensure that their voter registration information is correct at the Election Commission Office. “The 2017 election year is fast approaching and we would like to encourage the Cherokee citizens who would like to vote in the 2017 Council elections to register to vote,” an EC press release states. “Registered voters of the Cherokee Nation who have had an address or name change should also complete a voter registration form and submit to the Election Commission Office to update your registration information.” According to the release, a registered voter living in the tribe’s jurisdiction who has moved to a new district and wishes to change precincts within his or her district shall re-register for a new district and/or precinct on or before the last business day in March of the election year. In 2017, that day will be Friday, March 31. According to CN law, every resident registered voter shall be registered to vote in the district of his or her residence. Also, a resident registered voter shall have the right to vote only for a Tribal Council candidate of the district in which the voter resides and cannot vote for a candidate of any other district. Tribal Council seats that are up for election next year are districts 2, 4, 5, 7, 9, 10, 11, 15, and one At-Large seat. EC officials said At-Large registered voters should be registered to vote in the At-Large District, unless a voter has elected to remain a voter in a district pursuant to Article VI, Section 3 of the CN Constitution. At-Large voters who move to new at-large address should provide the EC their new addresses for registration and mailing purposes. At-Large voters who move to addresses within a jurisdictional district should reregister within the district of their new addresses. EC officials also stressed that tribal citizenship cards do not automatically register citizens to vote in CN elections and that citizens wanting to vote must register with the EC. According to CN law, one must be 18 years old as of the election day to register to vote. Also, a person must be registered to vote no later than the last business day in March of the election year. Registration and change of address forms are available at the EC Office located at 22116 S. Bald Hill Road or online at <a href="http://www.cherokee.org/election" target="_blank">www.cherokee.org/election</a>. For more information, call 918-458-5899 or toll free at 1-800-353-2895. One can also email <a href="mailto: election-commission@cherokee.org">election-commission@cherokee.org</a> or visit <a href="http://www.cherokee.org/election" target="_blank">www.cherokee.org/election</a>. The EC’s mailing address is P.O. Box 1188 Tahlequah, OK 74465.
BY STAFF REPORTS
02/08/2016 01:30 PM
VIAN, Okla. – Volunteers are needed to help plant river cane at the Sequoyah Wildlife Refuge near Vian from 10 a.m. to 4 p.m., Feb. 19, 22 and 23. The refuge can be reached by taking exit 291 (Gore exit) off I-40. Go approximately one mile south until one sees Red Gate on the right. Volunteers may work one day, two days or all three days. The tribe began a River Cane Initiative in 2010 to preserve, map and perpetuate the growth of river cane in the tribe’s jurisdiction in northeastern Oklahoma. Cherokee Nation administrative liaison Pat Gwin and researcher for the initiative, Roger Cain, have located and cataloged river cane on more than 60 acres of tribal land. However, not much of the river cane found on the 60 acres of tribal land is fit for “traditional art” such as baskets, Cain said, because it has not been taken care of and is attempting to grow under the canopy of trees. River cane once grew 40 feet tall in the area, he said, but now cane growing only approximately 20 feet tall can be found. River cane was the Cherokees’ plastic, Cain said. It was used for shelter, weapons (bows, arrows, knives, blowguns), mats, chairs, food, and supplied material for baskets. Also, research has found river cane riparian zones significantly reduce nutrient loads into area streams, creeks and rivers. This research has implications for the controversial issue of local poultry farmers allegedly polluting the Illinois River with runoff containing poultry waste. Large areas of river cane known as canebrakes were once abundant along river bottoms in the southeastern United States. Canebrakes are now considered critically endangered ecosystems due to agriculture, grazing, fire suppression and urbanization. A 98 percent decline in canebrakes has occurred since Europeans first made contact with Native people in North America about 500 years ago, Cain said. Gwin said canebrakes also would likely lesson the affects of flooding in low-lying areas if they still existed next to streams and rivers in urban areas. For more information, call Gwin at 918-453-5704 or email <a href="mailto: pat-gwin@cherokee.org">pat-gwin@cherokee.org</a>, Sequoyah Wildlife Refuge biologist Dustin Taylor at 918-773-5251 or email <a href="mailto: dustin_taylor@fws.gov">dustin_taylor@fws.gov</a> or call Cain at 918-696-0521 or email <a href="mailto: rivercane@gmail.com">rivercane@gmail.com</a>.