By Angel Ellis/Reporter
OKMULGEE, Oklahoma —If a free press is watchdog of the people’s democracy then a Freedom of Information Act (FOIA) emboldens with penalties and appeals processes are the hound’s tooth. When the Muscogee (Creek) Nation passed it’s first ever FOIA law in July it could have set new precedence for citizen empowerment through government transparency.
MCN NC Rep. Mark Randolph began championing NCA 20-017 introduced on March 9. It was passed with a unanimous support July 23, and later adopted into law.
“NCA 20-017 is a great service to the Muscogee (Creek) people by creating transparency in the tribal government,” Randolph said about the bill. “Mvskoke Citizens are equal stakeholders in the business of the Nation and for that reason have the right to information pertaining to the affairs of this government.”
The bill was not immediately adopted when first introduced. It took collaboration between lawmakers and the MCN Attorney General Office.
“I would like to thank the Attorney General’s office and Alicia Stroble for all the research and time that went into this bill,” Randolph said.
Some exchanges of information were protected under other laws. The FOIA law is the first and most comprehensive law to ever be adopted that outlines, the process of requesting documents, which documents can be requested, which documents are not considered public record, how a citizen can request those documents and it even outlines the process to appeal if a citizen feels they have been wrongfully denied access to information.
MCN Assistant Attorney General Kevin Dellinger said the bill is about reinforcing transparency in government.
“The purpose of the law is to ensure equal access to public records by our citizens,” Dellinger said. “Things that need and should be shared, it gives citizens the ability access things that they haven’t been able to access in the past.”
“The law does a good job of defining what is public record and what is considered confidential.”
The law states, ‘It is the official policy of the Muscogee (Creek) Nation that all citizens shall have access to the public records of the Nation’s department and programs and other records including, but not limited to resolutions, ordinances, minutes, all transactions involving loans, descriptions of tribal lands, the leasing and exchanging of tribal lands and records regarding any tribal contractor.’
The law also lists about 26 specific types of documents that would be considered public unless deemed confidential for a reasons outlined in the law.
“One misconception might be that confidential information would be given out but it’s not written for that purpose,” Dellinger said. “There are for instance restrictions on health records, personnel, some fragile historic documents that are deemed fragile to be copied, culturally protected sites, are a few things withheld.”
While some record access has always been a provision of MCN law, this law more clearly defines what is accessible, and it provides provisions for appeal
According to Dellinger there are some simple steps to make a request for records. The law outlines the process.
First a citizen who would like request records would simply submit their request to the department responsible for that information. It can be done electronically, by facsimile, or even through written letter.
‘Provide a written request, which must include the date, name, address, telephone number and signature of the requesting citizen along with a copy of citizenship card,’ are components required according to the law.
“There will eventually be a form that can be filled out for the requests but that is still being finalized,” Dellinger said.
Once a request has been submitted, it will then be transferred to the MCN Attorney Generals Office to determine if that request is a public record. The citizen making the request ‘Shall receive a response within 20 business days.’
The response should let the requesting party know if their request is granted or denied, whether or not they have requested information from the proper entity, or if an extension of an additional 20 days is needed for the request to be fulfilled.
The law also specifically designates an employee within the Office of the Attorney General as an Information Officer who will be responsible for facilitating, gathering, tracking and responding to FOIA requests. The position will serve as a liaison to citizens seeking information.
The law also provides legal avenues to appeal if a person feels their request has been unreasonably denied. A citizen who receives a denial of record request may challenge the denial my making a claim for record access in Court within ninety days from the denial date.
The court would then review the claim and on its determination the decision could be made to deny, disclose in part or whole the public record if determined not to be exempt.
“The appeal could even elevate to the MCN Supreme Court,” Dellinger said.
MCN FOIA also imposes penalties for unlawful disclosure of protected or confidential information under the FOIA law. Disclosing information that is deemed confidential or destroys a record could be fined $1,000 to $5,000. The same penalties could be implemented for anyone who does not fulfill a records request that is deemed valid.
One exception and perhaps the closest legal language the tribe has every seen resembling a whistleblower clause is SS-9-112 subsection C. It protects an employee who has reasonable belief they are exposing corruption.
The law states, ‘It is a defense to a civil action under subsection A of this section that the public employee release of protected information in a reasonable belief that the disclosure of the information was necessary to expose a violation of law involving government corruption, abuse of office or misappropriation of public funds or property.’
The Executive Branch of MCN has made a statement in support of the move towards transparency through the Director of Communications Jason Salsman.
“FOIA is essential to any government that wishes to provide transparency and accountability to citizens and we are privileged to be one of the few tribal Nations to have such a law,” Salsman said.
Citizens who have an interest in requesting documents through FOIA processes are encouraged to review the law outlining the procedures to submit requests.
To review the laws in full see http://www.mcnnc.com/images/pdf2020/bills/NCA20-017.pdf