Wednesday, April 10, 2013

The Lost Ogle, ACLU challenge Gov. Fallin's claim of privileges to withhold records

The Lost Ogle and the ACLU of Oklahoma followed through Tuesday on their threat to sue Gov. Mary Fallin over her refusal to provide records.
The lawsuit, filed in Oklahoma County District Court, challenges Fallin's claim that executive and deliberative process privileges permit her to keep secret 100 pages of advice from "senior executive branch officials" on the creation of a state health insurance exchange.
(Vandelay Entertainment LLC v. Fallin, Mary, No. CV-2013-763 (Okla. Co. April 9, 2013))
Fallin's general counsel, Steve Mullins, has asserted that her communications with her 14 Cabinet members are protected by these privileges under the state Constitution provision creating three branches of government. (OKLA. CONST. art. 4, § 1)
Mullins also made that assertion in November when refusing to provide the Tulsa World with records related to implementing reforms to the corrections system.
(Also read Mullins' letter to The Oklahoman in November in which he explained various privileges that could be claimed by Fallin.)
ALCU Legal Director Brady R. Henderson emphasized Tuesday that executive and deliberative process privileges are not explicitly found in the Oklahoma Constitution and haven't been recognized by our state courts.
"Mary Fallin is the first Governor of Oklahoma to challenge the people's right to be fully informed about their government," Henderson said. "We filed this lawsuit to make sure she also will be the last."
Fallin's unprecedented use of "executive privilege" in Oklahoma to hide records from the public earned her FOI Oklahoma's annual Black Hole Award in early March.
If recognized by Oklahoma courts, 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 also 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.
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.
If Oklahomans 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.
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.
The purpose of this act 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. (OKLA. STAT. tit. 51, § 24A.2)
As a gubernatorial candidate seeking public support, Fallin pledged to support that policy "at every opportunity."
But if Fallin wins this lawsuit, her legacy as governor will be just the opposite of what she promised Oklahomans when she was asking for their votes. She will be responsible for a new layer of secrecy behind which governors may hide the public's business.

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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