Saturday, March 30, 2013

Gov. Fallin claims executive, deliberative process privileges to withhold documents related to her reversal on 'Obamacare' policy

Gov. Fallin won't release 100 pages of advice from her "senior executive branch officials" on the creation of a state health insurance exchange, her general counsel told reporters Friday.
Fallin invoked executive, deliberative process and attorney-client privileges to keep the documents from the public, Steve Mullins said in a letter to reporters picking up digital copies of more than 50,000 pages.
Claiming executive and deliberative process privileges to hide records is unprecedented for an Oklahoma governor. Our state courts have not recognized these privileges. The state Open Records Act doesn't include these exemptions.
But Mullins, a former federal prosecutor, contends that Fallin should be allowed to claim the same privileges given to the U.S. president.
The irony is that while many Oklahomans are calling on Fallin to reject what they believe is federal interference in their lives, her attorney is relying in part on federal law to hide government documents from them.
Mullins also asserts that Fallin's executive and deliberative process privileges are grounded in the state Constitution provision creating three branches of government. (OKLA. CONST. art. 4, § 1)
Other attorneys disagree:
"To my knowledge there is no exception in the Open Records Act, nor is there any case law, affording an executive officer in Oklahoma, a public official in the executive branch in Oklahoma, for some kind of executive privilege or deliberative process privilege that is being exerted," media attorney Bob Nelon told The Norman Transcript on Friday.
"They are creating that, in my view, out of whole cloth," Nelon said. "They’re making it up as they go."
ACLU Oklahoma Legal Director Brady R. Henderson agreed with Nelon.
"They're using assertions of executive privilege that aren't in the law to limit people's access to government," Henderson told the Tulsa World on Friday.
"At the end of the day, it's extremely hard, if not impossible, for the public to review that decision. It effectively is the government saying, 'You don't need to see what I'm doing, just trust me.'"
Executive and deliberative process privileges represent a disagreement over the public's fundamental role in overseeing its government, including the formulation of policy on its behalf.
The records released Friday -- and presumably those withheld -- concern Fallin's policy decisions regarding "Obamacare," including her decisions to reject federal funding for Medicaid expansion and not to build a state-based health insurance exchange. Fallin had first accepted a $54 million federal grant to create the exchange, then abruptly reversed course and returned the money.
Knowing why action was taken or not taken is as important as knowing what the outcome is. The public is entitled to evaluate what was considered and why it was rejected. Was it for the best reasons, or just for politics?
Oklahomans should know because it is our government. The state Open Records Act emphasizes:
As the Oklahoma Constitution recognizes and guarantees, all political power is inherent in the people. Thus, 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. (OKLA. STAT. tit. 51, § 24A.2)
As a gubernatorial candidate, Fallin signed FOI Oklahoma's Open Government Pledge, promising to support that right "at every opportunity."
But her legacy will be creating a layer of secrecy for governors to hide behind.

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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