Ross v. City of Owasso

481 P.3d 278

Patrick D. ROSS, an individual, Plaintiff/Appellant,

v.The CITY OF OWASSO, a municipal corporation, Defendant/Appellee.

Case No. 117,321

Court of Civil Appeals of Oklahoma, Division No. 4.

FILED APRIL 30, 2020

Mandate Issued: December 30, 2020

Christopher L. Camp, CAMP LAW FIRM, D. Mitchell Garrett, Jr., GARRETT LAW CENTER, PLLC, Tulsa, Oklahoma, for Plaintiff/Appellant

David L. Weatherford, BIRMINGHAM, MORLEY, WEATHERFORD & PRIORE, P.A., Tulsa, Oklahoma, for Defendant/Appellee

OPINION BY P. THOMAS THORNBRUGH, PRESIDING JUDGE:

¶1 Patrick D. Ross appeals a decision of the district court finding that, pursuant to the Open Records Act, the City of Owasso properly refused disclosure of a record known as the "Fortney Report." On review, we reverse the judgment of the district court in this matter, and hold that City failed to meet its burden under the Act to show why the Report should not be made available. We remand this matter with instructions to the district court to order City to comply with Ross's open record request regarding the "Fortney Report."

BACKGROUND

¶2 The matter initially arose from alleged misconduct by the Owasso City Manager. City commissioned a private attorney, Guy Fortney, to investigate these allegations. Fortney produced a report (Report or Fortney Report) allegedly identifying possibly criminal actions and violations of City policy by the City Manager. After approximately three meetings of the Owasso City Council, the Council approved a settlement with the City Manager under which the City Manager would resign and be provided with substantial severance pay. Plaintiff Ross, a resident of the City, objected to this settlement and use of public funds on the grounds that the City Manager's contract explicitly required the forfeiture of any right to severance pay if the City Manager's employment was severed for cause. Ross made a request for the Report through the Open Records Act (ORA). The request was apparently denied by an assistant city clerk on the grounds that the report was confidential.

¶3 In August 2013, Ross sued City alleging violations of the Open Meetings Act and a violation of the ORA. City countersued, alleging that Ross had breached confidentiality requirements and attorney-client privilege by filing his petition. In October 2015, the parties jointly dismissed all claims with prejudice, excepting only the issue of City's refusal to disclose the Report pursuant to the ORA. In June 2016, the district court granted summary judgment to City, finding that the Report was "not subject to disclosure." Ross appealed.

¶4 This Court found, in Ross v. City of Owasso , 2017 OK CIV APP 4, 389 P.3d 396 ( Ross I ) that "the Report is a ‘personnel record’ " and that "release of the Report is neither mandatory nor prohibited under the facts presented." We concluded that a public body has discretion on whether to keep such a report confidential pursuant to § 24A.7(A). We noted that the subsequent inquiry would be whether the City Council abused the discretion granted in § 24A.7(A) by refusing to release the Report. We could not answer that question in Ross I , however, because it was undisputed that the decision to release or withhold the record must be made by the City Council and it appeared that an assistant city clerk, not the City Council, had made a decision not to release. We remanded this matter with instructions that the City Council properly respond to Ross's ORA request, at which point any "decision to withhold or release the Report will be ripe for examination by the courts."

¶5 In December 2016, the Owasso City Council formally decided to deny release of the report. In February 2017, City filed a "Motion to Enter Judgment Pursuant to Mandate of Appellate Courts." This motion essentially alleged that the only action required by our opinion in Ross I was for the City Council to make a decision whether to release the report, and, as City had now made a decision , "there is no issue remaining to be decided as the City Council has acted within their discretion."¹ In June 2018, the district court issued a "Judgment Pursuant to Mandate" stating that the City Council acted within its discretion. Ross now appeals that decision.

STANDARD OF REVIEW

¶6 Because of the City's unusual procedural posture, the standard of review here requires some analysis. Our decision in Ross I clearly did not hold that the City Council would be within its discretion as a matter of law if it refused to release the report, but held that that issue of discretion would not be ripe for examination until the City Council had actually made a decision to release or withhold as required by the ORA. Merrill v. Oklahoma Tax Com'n, 1992 OK 53, ¶ 7, 831 P.2d 634, notes that a suit involving disclosure pursuant to the ORA constitutes a "suit for declaratory and injunctive relief" and the standard of review applicable to the ruling is whether it is clearly contrary to the weight of the evidence. Nonetheless, the City did not file a motion for declaratory judgment, but filed a "Motion to Enter Judgment Pursuant to Mandate of Appellate Courts" requesting judgment pursuant to a "mandate" this Court did not make. We will treat City's motion as one for declaratory judgment that it acted within its discretion in refusing to release the report.

¶7 Pursuant to 12 O.S.2011 § 1654, declaratory judgments are "reviewable in the same manner as other judgments." Okla. City Zoological Tr. v. State ex rel. Pub. Emp. Relations Bd., 2007 OK 21, ¶ 5, 158 P.3d 461 ; Lockett v. Evans , 2014 OK 34, ¶ 3, 330 P.3d 488. "A suit for declaratory judgment pursuant to § 1651 is neither strictly legal nor equitable, but assumes the nature of the controversy at issue." Macy v. Okla. City School Dist. No. 89 , 1998 OK 58, ¶ 11, 961 P.2d 804 ; see also Carpenter v. Carpenter , 1982 OK 38, ¶ 17, 645 P.2d 476 (whether declaratory judgment is legal or equitable depends on "essential nature" of case). Thus, determining the proper standard of review in a declaratory judgment action requires that we evaluate the nature of the case generally considering the relief sought, the pleadings filed, and the parties' rights and remedies. See Wickham v. Simpler , 1946 OK 357, ¶ 13, 180 P.2d 171.

¶8 In this case, two possible rationales for the trial court's decision are evident: either the court believed that City's decision to withhold the report could not be challenged as a matter of law, or it found that City acted within its discretion based on the facts. The first rationale requires a de novo standard of review; the second appears to require an abuse of discretion standard of review.

ANALYSIS

THE BURDEN UNDER THE ORA

¶9 The purpose of the ORA is to ensure and facilitate the public's right of access to, and review of, government records so they may efficiently and intelligently exercise their inherent political power. 51 O.S. § 24A.2. "Because of the strong public policy allowing public access to governmental records, we must construe the Act's provisions to allow access unless an exception clearly applies, and the burden is on the public agency seeking to deny access to show a record should not be made available." Oklahoma Ass'n of Broadcasters, Inc. v. City of Norman, Norman Police Dep't , 2016 OK 119, ¶ 15, 390 P.3d 689, 694 ; Citizens Against Taxpayer Abuse, Inc. v. City of Oklahoma City , 2003 OK 65, ¶ 12, 73 P.3d 871. Unless a record falls within a statutorily-prescribed exemption in the Act, the record must be made available for public inspection. The public body urging an exemption has the burden to establish the applicability of such exemption. Citizens Against Taxpayer Abuse, Inc. v. City of Oklahoma City , 2003 OK 65, ¶ 12, 73 P.3d 871, citing Merrill v. Oklahoma Tax Comm'n , 1992 OK 53, ¶ 8, 831 P.2d 634.

¶10 Title 51 O.S. § 24A.7(A)(1) states that, "A public body may keep personnel records confidential ... [w]hich relate to internal personnel investigations including examination and selection material for employment, hiring, appointment, promotion, demotion, discipline, or resignation." Section 24A.7(A)(2) also allows records to be withheld "where disclosure would constitute a clearly unwarranted invasion of personal privacy." Subsection 24A.7(B) also states that "all personnel records not specifically falling within the exceptions provided in subsection A of this section shall be available for public inspection and copying."

A. The Phrase "May be Released" Indicates Discretion

¶11 A public body may keep personnel records confidential. The word "may" is generally used in a statute to indicate either a discretionary choice, or that an act is neither mandatory nor prohibited.² Words will be given their common meaning unless a contrary legislative intent plainly appears. 25 O.S.2011 § 1 ; Welch v. Crow , 2009 OK 20, ¶ 10, 206 P.3d 599. Section 24A.7 appears to create a class of records that shall be released (records that do not fall within the exceptions of subsection A) and a class of records that may be released (records that do fall within the exceptions of subsection A). City's interpretation of § 24A.7(A)(1) is that the statutory phrase, "A public body may keep personnel records confidential," indicates that a public body has unlimited discretion to refuse to release personnel files mentioned in § 24A.7(A)(1).³ This interpretation appears contrary to the majority of legislative and Supreme Court statements regarding the ORA.

¶12 It is the "public policy of the State of Oklahoma that the people are vested with the inherent right to know and be fully informed about their government." 51 O.S. § 24A.2. "The Legislature's emphatic message to government agencies is, unless otherwise specifically excluded, the public must have prompt and reasonable access to records." Oklahoma Ass'n of Broadcasters, 2016 OK 119, ¶ 15, 390 P.3d 689, citing Fabian & Associates, P.C. v. State ex rel. Dep't of Pub. Safety , 2004 OK 67, ¶¶ 11-12, 100 P.3d 703 ; City of Lawton v....