Wednesday, November 28, 2012

Gov. Fallin claims unprecedented constitutional privileges to hide records from public

Gov. Mary Fallin has claimed at least three times this year that privileges for the executive branch allow her to hide records from public scrutiny.
Most recently, she refused to release emails that could shed light on why she refused to create a state health insurance exchange, The Oklahoman reported Friday.
Fallin's general counsel, Steve Mullins, claimed the records are protected by executive privilege and deliberative process privilege, as well as attorney-client privileges far exceeding what state legislators and the Oklahoma Supreme Court have granted government officials.
On Fallin's behalf, Mullins also made such claims when refusing to release execution procedure-related documents to The Associated Press and denying various records to the Tulsa World.
However, Oklahoma courts have not recognized that executive privilege and deliberative process privilege exist under the state Constitution.
Instead, Mullins has attempted to conjure them by misconstruing state statutes and applying federal case law.
These privileges would turn the state Open Records Act upside down. Under the statute, the government official denying access must cite an applicable state or federal statutory exemption. But under these privileges, the burden would fall on Oklahomans to prove to a court that they should be allowed to see the government records.
These privileges would allow Fallin to claim secrecy for records that would be open to the public if in the hands of local officials because the Legislature has not deemed the information confidential.
Mullins told The Oklahoman that Fallin’s administration is "more open than anybody else has ever been."
But Fallin wants privileges of secrecy that apparently none of her predecessors thought was necessary.
As a gubernatorial candidate seeking public support, Fallin promised that she would "comply with not only the letter but also the spirit of Oklahoma’s Open Meeting and Open Records laws."
Fallin pledged to "support at every opportunity" the state's policy that "people are vested with the inherent right to know and be fully informed about their government so that they can efficiently and intelligently exercise their inherent political power."
But now, Fallin spokesman Alex Weintz says the governor does not believe the Open Records Act was meant to allow access to "conversations between executive branch employees working on draft documents, brainstorming on public policy ideas, offering advice and counsel to the governor, or otherwise acting in an advisory role."
"Eliminating the possibility of private dialogue inside the executive branch would damage the ability of the governor to design and implement good policy and would harm the public interest," he said.
Then why haven't such records been explicitly exempted by the state Legislature or such privileges written into the Oklahoma Constitution?
I urge The Oklahoman, Tulsa World, The Associated Press, other news organizations and public advocacy groups to challenge Fallin's claims in court. Otherwise, Fallin has unilaterally created her own exemptions to the Open Records Act.
Better yet, Fallin should quit claiming these privileges until Oklahomans grant them to her in the state Constitution. If she believes the public interest is best served by keeping these secrets, then she should persuade voters to give her the power to keep such information from public scrutiny.
I don't believe she would be successful. Oklahomans realize that if they are to meaningfully participate in their government and understand the governmental decisions affecting their lives, they must be privy to the deliberative discussions revealing why officials chose one alternative and rejected others.
A point that they should express to the governor now.
Because if Fallin has her way, her legacy as governor will be more government secrecy. Just the opposite of what she promised Oklahomans when she was asking for their votes.

Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications
The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.

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