Legislator says he opposed bill expanding attorney-client privilege for government

Rep. Earl Sears says he doesn't know how his vote against HB 1559 ended up being recorded as a vote for the bill, which would have expanded the attorney-client privilege for governments in Oklahoma.

"I do not support HB 1559 and voted No and saw it as a RED NO," the Bartlesville Republican told the FOI Oklahoma Blog. "How it got green I will never know.

"I support open government 100 percent," said Sears in an email. "The public has the right to know what we are doing at all times when we are doing the people's business."

Click here to read more about HB 1559.

The House rejected the bill by a 35-64 vote on May 17.

Sears said he didn't know his vote had been recorded as one of the 35 for HB 1559 until he was contacted by a constituent.

"I do not agree with Rep. [Fred] Jordan, the author of this bill," Sears told the constituent in an email. "As a public official I should not hide anything from the public.

"I am glad this bill is dead, and I wish my vote was recorded as No, but it's a Yes," he said. "All I can tell you is I don't support this bill in anyway."


Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications

11 representatives live up to Open Government Pledge as House rejects bill expanding attorney-client privilege for government

Eleven House members lived up to their Open Government Pledge on Tuesday by voting against legislation that would have expanded the attorney-client privilege for government.

The House rejected HB 1559 by a 35-64 vote. The Tulsa World reports that its sponsor, Republican Fred Jordan of Jenks, kept the bill alive by sending it back to the House conference committee.

However, the Oklahoma Press Association official who lobbied against the measure said he believes it is dead for this session.

"Jordan told me he was through with the bill and would not be bringing it back up this session," said Mark Thomas, OPA executive vice president.

Unfortunately, among the voters for a bill that would have restricted the public's right to know were two pledge signers, Democrats Al McAffrey of Oklahoma City and Jeannie McDaniel of Tulsa.

As candidates for the House, McAffrey and McDaniel each pledged "to support at every opportunity 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 so that they can efficiently and intelligently exercise their inherent political power."

McAffrey and McDaniel violated that pledge on Tuesday.

The bill they voted for would give local governments more power to keep documents confidential because it would erase statutory language limiting the circumstances under which public bodies may declare records protected by attorney-client privilege.

Specifically, HB 1559 seeks to amend a state statute that permits the attorney-client privilege for government records only when "the communication concerns a pending investigation, claim or action and the court determines that disclosure will seriously impair the ability of the public officer or agency to process the claim or conduct a pending investigation, litigation or proceeding in the public interest." (OKLA. STATE. tit. 12, § 2502 (D)(7))

The bill would remove that language, allowing the attorney-client privilege to be overcome only if the documents were sought by a multi-county grand jury.

The Oklahoma Municipal League supported the bill. The Oklahoma Press Association opposed it.

The bill also was opposed by councilmen Steve Harrison of McAlester and Tom Kovach of Norman, each of whom has signed the Open Government Pledge.

But credit for defeating this poorly written and wrong-headed legislation should go to the OPA's Thomas, who also is a member of the FOI Oklahoma board of directors.

Thomas, in turn, praised pledge signer Harold Wright of Weatherford for passionately imploring his fellow House members to kill the bill, calling it "bad public policy."

The expanded attorney-client privilege would be exploited by city councils and school boards, predicted Wright, who is a radio station owner, OPA member and former mayor.

Joining Wright in voting against HB 1559 were fellow pledge signers:

• John Bennett, R-Sallisaw
• David Dank, R-Oklahoma City
• Sally Kern, R-Oklahoma City
• Randy McDaniel, R-Oklahoma City
• Jason Murphey, R-Guthrie
• Todd Russ, R-Cordell
• Mike Sanders, R-Kingfisher
• Seneca Scott, D-Tulsa
• Emily Virgin, D-Norman
• Weldon Watson, R-Tulsa

Too bad Al McAffrey and Jeannie McDaniel didn't live up to their promise by doing so as well.

Here is the list of which House members voted for and against HB 1559.


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.

House Committee passes bill expanding attorney-client privilege for government, restricting public's right to know

Without questions or discussion, a House Conference Committee on Thursday passed HB 1559, which limits the public's right to know by expanding the attorney-client privilege for public bodies.

The bill would give state and local governments more power to keep documents confidential because it wipes out statutory language limiting the circumstances under which public bodies can declare records protected by attorney-client privilege.

If a Senate Conference Committee approves the bill, it could be heard on the floors of the Senate and House early next week.

Representatives voting YES to allow the bill out of conference on Thursday were Sue Tibbs (R-Tulsa); Fred Jordan (R-Jenks); Steve Martin (R-Bartlesville); Lewis Moore (R-Arcadia); Dustin Roberts (R-Durant); Dan Sullivan (R-Tulsa); Paul Wesselhoft (R-Moore); and Corey Williams (D-Stillwater).

Refusing to sign the bill out of committee were Republican Mark McCullough of Sapulpa and Democrats Ben Sherrer of Choteau and Richard Morrissette of Oklahoma City.

Absent were Colby Schwartz (R-Yukon) and Paul Roan (D-Tishomingo).

The bill seeks to amend a state statute that permits the attorney-client privilege for government records only when "the communication concerns a pending investigation, claim or action and the court determines that disclosure will seriously impair the ability of the public officer or agency to process the claim or conduct a pending investigation, litigation or proceeding in the public interest." (OKLA. STATE. tit. 12, § 2502 (D)(7))

The bill would remove that language, allowing the attorney-client privilege to be overcome only if the documents were sought by a multi-county grand jury.

The Oklahoma Municipal League is lobbying for the bill. But the Oklahoma Press Association opposes "removing the language because it takes the court review out of the process if there is suspected abuse or corruption between public officials and their attorney," said Mark Thomas, OPA executive vice president.

"As citizens, we MUST have some confidence that corruption is not happening. Having the ability to ask the court to review the attorney-client communications should remain in the law," said Thomas.

"Why does the Tulsa Public School attorney want this changed so badly? Why does the City of Jenks attorney want this changed? Why does the Oklahoma Municipal League want to change this law?" asked Thomas.

The bill goes to a Senate Conference Committee for a vote.

The Senate Conference Committee members will be Republicans Dan Newberry of Tulsa, who sponsored the bill in the Senate; Brian Crain of Tulsa, Jonathan Nichols of Norman and Anthony Sykes of Moore.

Democrats on the committee are Charlie Laster of Shawnee and John Sparks of Norman.

The OPA is urging Oklahomans to ask their state senators and representatives to vote against the bill.

The Press Association should be able to count on 16 legislators who have signed FOI Oklahoma's Open Government Pledge.

House members who signed the pledge are:

• John Bennett, R-Sallisaw
• David Dank, R-Oklahoma City
• Sally Kern, R-Oklahoma City
• Al McAffrey, D-Oklahoma City
• Jeannie McDaniel, D-Tulsa
• Randy McDaniel, R-Oklahoma City
• Jason Murphey, R-Guthrie
• Todd Russ, R-Cordell
• Mike Sanders, R-Kingfisher
• Seneca Scott, D-Tulsa
• Emily Virgin, D-Norman
• Weldon Watson, R-Tulsa
• Harold Wright, R-Weatherford

In the Senate, Josh Breechen, R-Coalgate, Roger Ballenger, D-Okmulgee, and minority leader Andrew Rice, D-Oklahoma City, signed the pledge.

Gov. Mary Fallin also signed the pledge as a candidate, so the OPA should be able count on her to veto the bill if it arrives on her desk.

Each of these politicians promised "to support at every opportunity 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 so that they can efficiently and intelligently exercise their inherent political power."

If you contact one of these elected officials, please remind them of that pledge.


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.

OML lobbies for bill expanding attorney-client privilege for government, restricting public's right to know

The Oklahoma Municipal League wants city officials statewide to tell members of a House Conference Committee to vote for a bill expanding the attorney-client privilege for government and, consequently, limiting the public's right to know in those instances.

"Public sector elected officials and municipal staff should be provided with the legal counsel similar to that granted to private entitles," an OML official said in an action alert e-mailed to OML members on Wednesday.

The House Conference Committee on Public Safety & Judiciary is scheduled to vote on HB 1559 at its 9 a.m. Thursday meeting.

The Oklahoma Press Association opposes the amended bill.

"It basically wipes out the limited privilege for public bodies and replaces it with a multi-county grand jury privilege limitation," OPA Executive Vice President Mark Thomas told the FOI Oklahoma Blog on Wednesday afternoon.

Thomas had previously said of the bill:

Public bodies currently have a limited attorney-client privilege. We think that limitation should stay in place. This bill removes the limitation. Public bodies could hide anything behind their attorney-client privilege.

This bill puts attorneys in charge of everything. That is bad public policy, and we are opposed to it.

The Oklahoma Supreme Court has noted that under state law, the attorney-client privilege "is not generally available to" public bodies. (State ex rel. Cartwright v. Oklahoma Indus. Auth., 1981 OK 47, ¶ 32).

According to the statute: “There is no privilege ... As to a communication between a public officer or agency and its attorney unless the communication concerns a pending investigation, claim or action and the court determines that disclosure will seriously impair the ability of the public officer or agency to process the claim or conduct a pending investigation, litigation or proceeding in the public interest.” (OKLA. STATE. tit. 12, § 2502 (D)(7))

Therefore, a public body or official could claim attorney-client privilege only if the document "concerns a pending investigation, claim or action."

Even then, the document could be kept confidential only if a court said disclosure would "seriously impair the ability of the public officer or agency to process the claim or conduct a pending investigation, litigation or proceeding in the public interest."

Thomas said HB 1559 eliminates the limiting language in the statute.

"Which means public bodies can hide behind conversations with their attorney over anything! The ONLY exception in the bill – public bodies can't use the privilege when called before a grand jury," Thomas said Wednesday.

The members of the House Conference Committee on Public Safety & Judiciary are

Republicans:

Jordan, Fred (405)557-7331 fred.jordan@okhouse.gov
Martin, Steve (405)557-7402 stevemartin@okhouse.gov
McCullough, Mark (405)557-7414 mark.mccullough@okhouse.gov
Moore, Lewis (405)557-7400 lewis.moore@okhouse.gov
Schwartz, Colby (405)557-7352 colby.schwartz@okhouse.gov
Roberts, Dustin (405)557-7366 dustin.roberts@okhouse.gov
Sullivan, Daniel (405)557-7361 danielsullivan@okhouse.gov
Tibbs, Sue (405)557-7379 suetibbs@okhouse.gov
Wesselhoft, Paul (405)557-7343 paulwesselhoft@okhouse.gov

and Democrats:

Morrissette, Richard (405)557-7404 richardmorrissette@okhouse.gov
Roan, Paul D. (405)557-7308 paulroan@okhouse.gov
Sherrer, Ben (405)557-7364 bensherrer@okhouse.gov
Williams, Cory T. (405)557-7411 cory.williams@okhouse.gov

Thomas said he is calling on those committee members to stop the bill.


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.

State Senate committee passes bill to expand attorney-client privilege for public bodies

The state Senate Judiciary Committee on Tuesday voted 6-3 for a bill that would expand the attorney-client privilege between public bodies and their lawyers.

The Oklahoma Press Association opposes HB 1559, which heads to the full Senate for a vote.

"Public bodies currently have a limited attorney-client privilege. We think that limitation should stay in place. This bill removes the limitation. Public bodies could hide anything behind their attorney-client privilege," OPA's executive vice president told the Tulsa World.

"This bill puts attorneys in charge of everything," said Mark Thomas. "That is bad public policy, and we are opposed to it."

On Monday, Thomas noted on the FOI Oklahoma Blog that public bodies already have a broad attorney-client privilege for a "pending investigation, claim or action and the court determines that disclosure will seriously impair the ability of the public officer or agency to process the claim or conduct a pending investigation, litigation or proceeding in the public interest."

The bill by Tulsa Republicans Rep. Fred Jordan and Sen. Dan Newberry was requested by Jenks officials.

"I ought to be able to talk in confidence with my client about a personnel matter without that being exposed," Jenks City Attorney Stephen Oakley told the Tulsa World. "I ought to be able to talk with the city manager or planner about a potential economic development project without that being disclosed until there was a report that was prepared and went before the council. At that point, it is an open record."

Thomas has called for open government advocates to contact their state senators to oppose HB 1559.

Three senators -- Roger Ballenger, D-Okmulgee; Josh Brecheen, R-Coalgate; and minority leader Andrew Rice, D-Oklahoma City -- signed FOI Oklahoma's Open Government Pledge in 2010.

Each man promised "to support at every opportunity ... the inherent right [of Oklahomans] to know and be fully informed about their government so that they can efficiently and intelligently exercise their inherent political power."

The vote on HB 1559 is one of those opportunities.


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.

OPA: OPPOSE HB 1559 that EXPANDS the attorney-client privilege for public bodies!

OPPOSE HB 1559 by Tulsa Republicans Rep. Fred Jordan and Sen. Dan Newberry.

This bill would EXPAND the attorney-client privilege for public bodies! (We want to LIMIT this privilege.) Do not allow public bodies to hide behind their attorney!

HB 1559 goes before the Senate Judiciary Committee at 9 a.m. Tuesday.

Senators on the Judiciary Committee are: Chairman Anthony Sykes, Vice Chair Rob Johnson, Josh Brecheen, Brian Crain, Judy Eason McIntyre, Charlie Laster, Richard Lerblance, Jonathan Nichols and Ralph Shortey.

Call your State Senator today!

This bill does not amend the Open Meeting Act but amends another title of law (12) that deals with all types of attorney-client privilege. If this becomes law it will create a conflict, and this language will prevail.

WHY DO WE OPPOSE HB 1559?

Public bodies currently only have attorney-client privilege for a “pending investigation, claim or action and the court determines that disclosure will seriously impair the ability of the public officer or agency to process the claim or conduct a pending investigation, litigation or proceeding in the public interest.” THAT IS ALREADY A VERY BROAD EXCEPTION.

HB 1559 eliminates the limiting language – which means public bodies can hide behind conversations with their attorney over anything! The ONLY exception in the bill – public bodies can’t use the privilege when called before a grand jury!

If any questions, contact Mark Thomas at 405-659-3966.


Mark Thomas
Executive Vice President
Oklahoma Press Association


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.