Fallin claims political influences on state policy should be kept secret

Gov. Mary Fallin is claiming an executive privilege to hide records that reveal political considerations behind her decisions on state policy.
 
Included would be documents telling Fallin "who might be supportive of certain policy agendas in the legislature, both now and in the future, whether such support would exist after an upcoming election, and whether facts exist to help persuade the legislatures and others to support the governor's agenda," according to the formal response to an Open Records Act lawsuit against the governor.
 
The Lost Ogle, represented by the ACLU of Oklahoma, is challenging Fallin's claim that executive and deliberative process privileges permit her to withhold 100 pages of advice from "senior executive branch officials" on the creation of a state health insurance exchange.
 
Fallin is the first Oklahoma governor to claim these privileges even though as a candidate she 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."
 
Fallin's unprecedented use of executive privilege in Oklahoma earned her FOI Oklahoma's annual Black Hole Award in early March.
 
In the court filing May 31, the Attorney General's Office said an "expanded, non-deliberative process component of the executive privilege protects communications needed for the executives to function in pursuit of their policy decisions...." (P. 4)
 
The response contends that The Lost Ogle must show "a substantial or compelling need for the documents" before the judge can privately inspect the records to determine if "the public interest in confidentiality" outweighs "the Plaintiff's demonstrated need for disclosure of each document." (P. 8)
 
For more background on the lawsuit and Fallin's claims of executive privilege:

• Gov. Fallin claims unprecedented constitutional privileges to hide records from public
• FOI Oklahoma calls on Gov. Fallin to drop privilege claims, release records
• Gov. Fallin claims executive, deliberative process privileges to withhold documents related to her reversal on 'Obamacare' policy
• The Lost Ogle, ACLU challenge Gov. Fallin's claim of privileges to withhold records

 
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.

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.
 

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.
 

ACLU of Oklahoma threatens Gov. Fallin with lawsuit over records denial, notes apparent Open Records Act violation by her office

If Gov. Mary Fallin continues to deny access to emails and other correspondence related to her refusal to create a state health insurance exchange, the ACLU of Oklahoma will seek a court order compelling her to release the records, the organization said Wednesday on behalf of The Lost Ogle.
 
The website's Dec. 10 request for the records has been "met with gross indifference, if not outright defiance," ALCU Legal Director Brady R. Henderson said in a letter Tuesday to Fallin's general counsel, Steve Mullins.
 
Henderson said that when he went to the governor's office this past Thursday and asked to inspect "whatever records were available on hand," he was told that Mullins is the only person authorized to release records and that he was out of town for the week.
 
However, the Open Records Act requires that "at least one person shall be available at all times to release records during the regular business hours of the public body." (Okla. Stat. tit. 51, § 24A.5(6))
 
Henderson noted in his letter, "The Open Records Act is quite explicit on this point.
 
"If this violation ... continues following a reasonable period in which to make corrections, there can be no question that it is a willful violation, and thus appropriate for criminal prosecution," Henderson said.
 
Henderson also noted that while The Lost Ogle has "received no substantive response" to it records request, other journalists seeking the same records "have been met with false claims of a non-existent 'executive privilege' to deny them records to which they are lawfully entitled."
 
Coupled with the office's failure to have someone available to release records, Henderson said, the claim of executive privilege "suggests that Governor Fallin not only fails to take the Open Records Act seriously, but fails to understand the broader implications for the citizens of Oklahoma.
 
"Such conduct rides roughshod over the people's right to open and accountable government," Henderson said.
 
(Read the ACLU of Oklahoma press release issued Wednesday.)
 

 
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.
 

FOI Oklahoma's Black Hole Award goes to Gov. Fallin

Gov. Mary Fallin's unprecedented use of "executive privilege" to hide records from the public earned her FOI Oklahoma's annual Black Hole Award, the organization announced Saturday.
 
Two newspapers and a state lawmaker received FOI Oklahoma's top open government and First Amendment awards Saturday during the organization's Sunshine Week Conference at the University of Oklahoma.
 
FOI Oklahoma also announced winners of its third open government-themed essay contest for college students. First place went to Joey Stipek of the University of Oklahoma. The second- and third-place winners were Oklahoma State University students Colton Scott and Andrei Dambuleff. The students won cash prizes of $300, $200 and $100.
 
The Marian Opala First Amendment Award was presented to the Enid News & Eagle, while the Ben Blackstock Award went to the Bartlesville Examiner-Enterprise.
 
State Rep. Jason Nelson, R-Oklahoma City, was presented the Sunshine Award for opening the doors of secrecy at the Department of Human Services.
 
In contrast, Fallin and her general counsel, Steve Mullins, garnered the Black Hole Award, which recognizes someone who thwarts the free flow of information in Oklahoma.
 
Fallin and Mullins have claimed that her communications with her 14 Cabinet members are protected by executive and deliberative process privileges under the state Constitution. Their claims are unprecedented for an Oklahoma governor.
 
Our state courts have not recognized these privileges. Likewise, the state Open Records Act doesn’t screen the governor’s records from public scrutiny.
 
Some of the records could shed light on why Fallin refused to create a state health insurance exchange. Others are related to implementing reforms to the corrections system.
 
The Enid News & Eagle was recognized for its successful lawsuit supporting the public's First Amendment right of access to court records sealed by Judge Ray Linder. The records involved the perjury case of Enid attorney Eric Edwards.
 
For nearly four months, the newspaper, its attorney Michael Minnis, and reporters James Neal and Cass Rains fought with Edwards' attorney, Stephen Jones, over the manner in which the records were sealed and removed from public view.
 
In ordering the records opened, Judge Richard Van Dyck cited the News & Eagle’s First Amendment right to publish the news as the newspaper found it.
 
Van Dyck said the public’s interest in knowing the truth was greater than the need to keep the records sealed, which would only "heighten suspicions."
 
"The public needs to know what its elected officials are up to," Van Dyck said. "The public has a right to know."
 
The Opala Award is named for the late Marian P. Opala, the former Polish freedom fighter who served 32 years on the Oklahoma Supreme Court.
 
The Bartlesville Examiner-Enterprise was presented the Blackstock Award, which recognizes a non-governmental person or organization that has fought for the public's right to know.
 
Video footage of an incident in which two local police officers were accused of assaulting a hospital patient was released because of a lawsuit by the newspaper.
 
Two police officers were charged with assault and battery from the September 2011 incident involving a combative patient at a local hospital. One officer was convicted and fined $1,000. The other was acquitted.
 
A third officer's employment was terminated, and a fourth officer was placed on administrative leave but later reinstated.
 
Nelson was presented the Sunshine Award, which goes to a public official or governmental body, for spearheading efforts to reform the Department of Human Services' tracking and reporting of child deaths and near-deaths.
 
Over time, DHS had developed a closed system and oversight was difficult. Nelson pounded away at unacceptable reports and transparency issues concerning DHS. He and other legislators had to stand firm when federal Health and Human Services officials said Oklahoma could lose millions in federal funding if it opened certain records.
 
Nelson kept asking why other states could disclose the information and still receive federal funding. Eventually, the HHS agreed Oklahoma could release the data without losing funding.
 
This was the sixth year that FOI has presented the Sunshine, Blackstock and Black Hole awards.
 
FOI Oklahoma is a statewide organization that for 23 years has promoted openness in government and First Amendment education. The organization counts among its members journalists, librarians, educators, government officials and private citizens. It also sponsors an annual First Amendment Congress for students.
 

 
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications
 
Lindel Hutson
Past President, FOI Oklahoma
 
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.

VA comm'r wants to throw out state Open Meeting Act

A member of the state commission overseeing the Veterans Affairs Department wants to do more than meet socially with a majority of the board without public notice, which the state Open Meeting Act already allows.
 
Thomas Howell wants legislators to allow the War Veterans Commission to discuss the public's business in secret.
 
"I said just throw it all out and say commissioners can meet whenever they wanted to, to discuss the problem that you have so you can have an answer when you come to these meetings on the problems we are having to address now," Howell said.
 
Howell, who represents Disabled Veteran Americans on the board, said he has spoken with two state senators about proposing a bill allowing a majority of the nine-member commission to meet secretly without violating the Open Meeting Act.
 
The Oklahoman's article didn't identify which two senators might be considering such idiotic legislation. But another news outlet reported that Howell has spoken with Sen. Don Barrington, R-Lawton.
 
Howell's public comments were made Friday during a meeting in which the commission voted to remove "interim" from John McReynolds' job title as executive director of the state's Veterans Affairs Department.
 
Ironically, the commissioners interviewed McReynolds and another candidate during an executive session, which means the public was excluded from that part of the meeting.
 
But the Open Meeting Act prohibits the majority of a public body from meeting without posting advance notice and an agenda telling the public that such an executive session is scheduled. (Okla. Stat. tit. 25, § 303)
 
These requirements exist for good reason. As the state Court of Civil Appeals said in 2008:

The [Open Meeting] Act is designed to ‘encourage and facilitate an informed citizenry's understanding of the governmental processes and governmental problems. … The Act serves to inform the citizenry of the governmental problems and processes by informing them of the business the government will be conducting. (Wilson v. City of Techumseh, 2008 OK CIV APP 84, ¶ 10)

This includes the entire decision-making process, our state Supreme Court has said.
 
"The underlying goals of the 'open meeting laws' can not be seriously challenged. If an informed citizenry is to meaningfully participate in government or at least understand why government acts affecting their daily lives are taken, the process of decision making as well as the end results must be conducted in full view of the governed." (Oklahoma Ass’n of Municipal Attorneys v. Derryberry, 1978 OK 59, ¶ 10)
 
Or as an attorney general opinion later explained, "Public access to a mere 'rubber stamp' vote is all but useless." (1982 OK AG 212, ¶ 7)
 
Howell complained that the Open Meeting Act's requirements cause problems because more than four commissioners are members of the VFW and the American Legion. He apparently believes that the statute prohibits the majority of a public body from gathering at parties, dinners or other social events.
 
In 2007, however, legislators added language to the statutory definition of "meeting" to clarify that a majority of a public body may gather informally as long as "no business of the public body is discussed." (Okla. Stat. tit. 25, § 304(2))
 
But Howell's comments indicate that he believes commissioners should be able to discuss -- and essentially decide -- the public's business far from the prying eyes of the people they're supposed to serve.
 
Fortunately, Commission Chairman Richard Putnam seems to understand the purpose of the Open Meeting Act, saying:

My interpretation is we're not prevented from attending things like conventions where we are all members. We are just prevented from meeting as commissioners during those events. In psychology, we call it face validity. I think in order to have the public's trust we need to demonstrate we will not meet secretly.

The War Veterans Commission and the Veterans Affairs Department need to be building public trust. The agency has been criticized for a "series of premature deaths, abuse and neglect cases" at the seven nursing centers it operates. A former nurse's aid at the Veterans Center in Norman was convicted last week of one count of first-degree rape and two counts of forcible oral sodomy on patients.
 
In August, Gov. Mary Fallin requested an audit to review of the efficiency and effectiveness of the agency's management, the efficiency and effectiveness of the oversight of department operations, the reasonableness of expenditures, and a review of the expenditures of the department's administration for compliance with appropriate state statutes and regulations.
 
Howell of Duncan was one of eight new members appointed by Fallin to the commission in May. He had served on the commission previously as an appointee of Gov. Frank Keating in 1995.
 
Fallin, as a gubernatorial candidate in 2010, publicly said she expected her appointees to public bodies to abide by the Open Meeting and Open Records laws.
 
Fallin should emphasize that to Howell or replace him.
 

 
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. Differing interpretations of open government law and policy are welcome.
 

Gov. Fallin's office says up to 2 months to respond to request for emails regarding health insurance exchange

Gov. Mary Fallin's spokesman said it will take as long as two month to compile emails that could shed light on why she refused to create a state health insurance exchange, The Oklahoman reported today.
 
Fallin will decide which emails she will keep from the public under a claim of executive privilege, Alex Weintz told the newspaper in a meeting Thursday.
 
He estimated that compiling the "hundreds of thousands” of emails covering six months will take 100-plus man-hours.
 
"This is a time-consuming, labor-intensive process, and right now we're processing the request and we haven't denied any documents," Weintz said.
 
Fallin's legal advisers will review the emails individually, but Fallin will decide which records will be considered privileged, Weintz said.
 
FOI Oklahoma and others have criticized Fallin's unprecedented claims of executive branch privileges in response to various records requests since the spring.
 

 
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.

FOI Oklahoma calls on Gov. Fallin to drop privilege claims, release records

 
Dear Gov. Fallin:

I am writing as president of FOI Oklahoma Inc. to express disappointment that you have withheld important records and emails you used in making decisions impacting the citizens of Oklahoma.

Your office has claimed at least three times recently that executive branch privileges allow you to hide records from public view.

This is disappointing because conducting government in secrecy defies the state's Open Records Act and frustrates the ability of citizens to understand basic functions of state government.

Your actions are puzzling because you signed a pledge on March 13, 2010, that you "will comply with not only the letter but also the spirit of Oklahoma's Open Meeting and Open Records Laws."

You also 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."

Your legal advisers have claimed that records requested by various media outlets are protected by privileges that far exceed what the state Legislature and the state Supreme Court have granted government officials.

State courts have not recognized that executive privilege and deliberative process privilege exist under the state Constitution.

Your attorney, Steve Mullins, was quoted in The Oklahoman as saying your administration is "more open than anybody else has ever been."

Yet, you want privileges of secrecy that none of your predecessors thought was necessary.

I ask you to drop the executive privilege claims and release the records withheld under those claims.

Sincerely,

Lindel Hutson
President
FOI Oklahoma Inc. 

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.

AG says agenda item for executive session with attorney must list name of lawsuit being settled

A state agency's agenda was too vague under the Open Meeting Act when it listed an executive session "for the purpose of considering a settlement of a lawsuit(s)," Attorney General Scott Pruitt reportedly said in an informal opinion this week.

The meeting agenda should have listed the name of the parties in the lawsuit and a brief description of the litigation, Pruitt reportedly told the Commissioners of the Land Office.

This is important because other public bodies in the state, including the Oklahoma State Regents for Higher Education, Bartlesville Redevelopment Trust Authority, and Glenpool and Chickasha city councils, have been deliberately vague when conducting closed-door sessions with their attorneys.

The Open Meeting Act permits public bodies to conduct executive sessions to discuss

confidential communications between a public body and its attorney concerning a pending investigation, claim, or action if the public body, with the advice of its attorney, determines that disclosure will seriously impair the ability of the public body to process the claim or conduct a pending investigation, litigation, or proceeding in the public interest. (OKLA. STAT. tit. 25, § 307(B)(4))

But the statute also states, "If a public body proposes to conduct an executive session, the agenda shall:

Contain sufficient information for the public to ascertain that an executive session will be proposed;

Identify the items of business and purposes of the executive session; and

State specifically the provision of Section 307 of this title authorizing the executive session." (OKLA. STAT. tit. 25, § 311(B)(2)(a-c))

However, rather than stating the specific investigation, claim or action to be discussed, these public bodies have provided only the specific statutory authorization for the proposed executive session.

Their attorneys contend that the Open Meeting Act exception is subject to the statute providing for the attorney-client privilege. In other words, these government lawyers contend attorney-client privilege trumps the agenda requirements under the Open Meeting Act.

In contrast, I have contended that the specific investigation, claim or action must be identified on the agenda as required by the Open Meeting Act. I am not alone in this understanding of the statute’s requirement.

Identifying the item of business on the agenda would not nullify or impair the attorney-client privilege, which shields from third parties the content, not the topic, of confidential communications between a client and attorney, said then-Stillwater attorney Doug Wilson. (He is now an assistant district attorney for Tulsa County.)

In fact, identifying the item of business on an agenda is no different from what attorneys must already do to withhold information under the state statute governing discovery in civil lawsuits, Wilson pointed out.

That statute requires the attorney to "describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection." (OKLA. STAT. tit. 12, § 3226(B)(5)(a))

Another attorney with experience in open government cases said identifying the claim "is extremely important."

"Absent the claim or case, the session has no limits. One can talk about whatever they want," said Michael Minnis of Doerner Saunders Daniel & Anderson L.L.P.

Listing the specific investigation, claim or action on the agenda is "intended to allow an initial objective evaluation that the proposed executive session meets the criteria of the cited statute and to allow a subsequent evaluation if someone objects that the executive meeting held under that agenda description exceeded the authorization," said Minnis.

"The latter refers to situations, for example, where the executive session discussed Case 1, not Case 2 as set forth in the agenda," he explained.

(For the complete explanation, read Glenpool City Council agenda omits specific item of business to be discussed with its attorney behind closed doors.)

In June, the district attorney for the Oklahoma Panhandle told a hospital board that public bodies must identify the nature of the claim or investigation on the agenda for an executive session under the Open Meeting Act's attorney-client privilege exemption.

"It is my opinion that the agenda item to consider an executive session must identify either the position or the individual who is the subject of the discussion or the nature of the investigation or claim to be discussed in the agenda that would apprise the public of the matters to be addressed in the executive session," said James M. Boring, district attorney for Cimarron, Texas, Beaver and Harper counties.

Attorney General Scott Pruitt seems to agree.

The Commissioners of the Land Office Sept. 8 agenda item listed simply "for the purpose of considering a settlement of a lawsuit(s)" when commissioners went behind closed doors to discuss a nearly $1.4 million settlement of a royalty case.

A former attorney for the public body objected to the agenda item as insufficient under the Open Meeting Act, reported the Tulsa World.

(The commissioners are Gov. Mary Fallin, Lt. Gov. Todd Lamb, State Auditor Gary Jones, State schools Superintendent Janet Barresi and Agriculture Secretary Jim Reese.)

Fallin's office asked Pruitt for an informal opinion and put the settlement on hold, the Tulsa World reported.

On Friday, Judy Copeland, Fallin's general counsel, told the newspaper:

The Attorney General's Office reviewed the agenda as the governor requested and determined that the agenda item did not sufficiently describe the matter. As a result, the CLO will place the item back on the agenda at its next regularly scheduled meeting so that action can be taken.

Pruitt's advice apparently will improve the commission's future agendas as well.

"In the future, we will list all parties of pending litigation," said Terri Watkins, a spokeswoman for the agency.

Other public bodies should take note of Pruitt's opinion and do so as well.


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.

Will Gov. Fallin fulfill candidate Fallin's open government promises?

As a gubernatorial candidate, Mary Fallin pledged that she and the public bodies she would be elected to govern would "comply with not only the letter but also the spirit of Oklahoma’s Open Meeting and Open Records laws."

She also would hire someone to ensure our state open government laws are enforced, Fallin told FOI Oklahoma's Sunshine Week conference in March.

"As governor, one of the things I will do is to be very forthright in making sure that we enforce our Open Meeting Act and our Open Records Act, and I do think it's important that a governor have someone dedicated full time to making sure enforcement is carried forth," she said.

A model for such a position in the governor's office can be found in Florida. The Office of Open Government was created by Republican Gov. Charlie Crist in 2007 and reaffirmed by new Republican Gov. Rick Scott on his first day in office last week.

Under Scott's executive order, the Office of Open Government will:

• "Facilitate Floridians' right to know and have access to information with which they can hold government accountable;
• Continue to assure full and expeditious compliance with Florida's open government and open records laws; and
• Provide training to all executive agencies under my purview on transparency and accountability."

The Office of Open Government also has "primary responsibility for ensuring that the Office of the Governor complies with public records requests in an expeditious manner."

Republican Fallin said she expects government information to be released "in a timely manner and that information is not withheld intentionally just to forestall the public's right to know."

Fallin also said that as governor, she would:

• Veto legislation exempting public employees birth dates from the state Open Records Act;
• Expect her appointees to public bodies to abide by the Open Meeting and Open Records laws; and
• Support eliminating the state Legislature's exemption from the Open Records and Open Meeting laws.

Fallin signed FOI Oklahoma's Open Government Pledge in which she endorsed "the purpose of Oklahoma’s Open Meeting and Open Records laws to ensure and facilitate the public’s understanding of governmental processes and problems."

She also 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."

Now that Fallin is governor, will she live up to those promises?

Do you believe she will?


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

All 6 gubernatorial candidates: State Legislature should not exempt itself from Open Records Act

The Oklahoma Legislature should be subject to the state's Open Records Act just like the rest of government, the six announced gubernatorial candidates said on Saturday.

Live online audio and video feeds of the House and Senate in session are nothing more than "great window dressing," said Lt. Gov. Jari Askins, a Democratic candidate and former state legislator.

"We will all be better served (with) transparency when the House and the Senate open up the rest of their records and remove their exemption,” Askins told the audience at FOI Oklahoma's third-annual Sunshine Week conference.

The other gubernatorial candidates in agreement were fellow Democrat Drew Edmondson and Republicans state Sen. Randy Brogdon, Congresswoman Mary Fallin, Robert Hubbard and Roger L. Jackson.

Only nine other state legislatures completely exempt themselves from their state open records laws, The Oklahoman reported today.

Oklahoma legislators exempted themselves when the statute was first enacted in 1985.

That means Oklahoman can't see their lawmakers’ e-mails, letters, drafts of bills, memorandums, calendars, phone call logs and other records that might show how those entrusted with the public’s business are doing their jobs, reporter John Estus pointed out.

Current legislative leaders' reasoning for continuing the exemption were galling.

"Protection of the Legislature’s records is vital to the independent functioning of the legislative branch,” a spokesman for Senate President Pro Tempore Glenn Coffee, R-Oklahoma City, said in a statement. "Subjecting the Legislature to open records requirements would chill the flow of communications within and from outside the Capitol."

House Speaker Chris Benge, R-Tulsa, echoed Coffee’s position in a separate statement, Estus reported.

According to Benge and Coffee, what's good for the goose isn't good for the gander. Other legislative bodies -- such as city councils and county commissions -- should operate with public scrutiny but not so for our state Legislature.

Perhaps our legislative leaders don't know that "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 are vested with the inherent right to know and be fully informed about their government," states the Open Records Act's preamble.

"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)

These principles are true whether the public body is a city council or the state Legislature.

Other coverage on the issue:

• Hopefuls call for exemption's end, The Oklahoman, 3.14.10.


• OETA reporter Lori Rasmussen talked to government leaders about the exemption of the state legislature from requirements of the state Open Meeting and Open Records Acts. Also discussion with Mark Thomas of the Oklahoma Press Association about openness in government. (Click on ONR 03-16-10)

Joey Senat, Ph.D.
Associate Professor
OSU School of Journalism

5 gubernatorial candidates would veto bill exempting birth dates of public employees; Edmondson says he would sign legislation

Five of the six announced gubernatorial candidates said on Saturday that if they were governor, they would veto legislation exempting public employees birth dates from the state Open Records Act.

Only Attorney General Drew Edmondson, a Democratic candidate, said he would sign the bill.

The Legislature is entitled under the Open Records Act to decide which information in the personnel files of public employees would be considered "an unwarranted invasion of privacy," Edmondson told the audience at FOI Oklahoma's third-annual Sunshine Week conference.

Edmondson said that did not mean he would concede his veto power each time legislators write an exemption to the state Open Records Act.

State Sen. Randy Brogdon, a Republican gubernatorial candidate, said he would veto SB 1753, which would exempt public employee birth dates from personnel files.

When asked how he had voted when the bill came before the full Senate on Feb. 18, Brogdon said he didn't know.

Brogdon voted for the bill when it passed the Senate by 44-0 vote with no debate on the floor.

After being told how he voted, Brogdon said, "I am not in favor of hiding information so the final product as it comes out I will certainly vote accordingly."

Also saying they would veto the legislation were Lt. Gov. Jari Askins, a Democrat, and Republican candidates Congresswoman Mary Fallin, Robert Hubbard and Roger L. Jackson.
.
The conference was the first time all six announced gubernatorial candidates had attended the same event to speak on a topic.

In the morning sessions, experts on privacy emphasized that birth dates in public records do not pose a threat of identity theft.

In December, Edmondson issued a formal written opinion stating that government employee birth dates are presumed open unless the public body can demonstrate that the employee’s privacy outweighs the public’s interest in disclosure.

In August, Edmondson said publicly that officials should err on the side of transparency regarding the release of dates of birth of employees. Edmondson said it’s difficult to contend that birth dates are private when they are found in a number of public records. He has since disclosed the birth dates of his own employees.

Edmondson has signed FOI Oklahoma Inc.'s Open Government Pledge promising "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.”

Joey Senat, Ph.D.
Associate Professor
OSU School of Journalism

3 more gubernatorial candidates sign Open Government Pledge

Three gubernatorial candidates on Saturday promised that if elected, each would ensure that the governor's office and state agencies would "comply with not only the letter but also the spirit of Oklahoma's Open Meeting and Open Records laws.”

Each also 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.”

Signing FOI Oklahoma Inc.'s Open Government Pledge were Lt. Gov. Jari Askins, a Democrat, and Republican candidates Congresswoman Mary Fallin and Roger L. Jackson, a retired Oklahoma City businessman.

State Attorney General Drew Edmondson had signed the pledge in January as a Democratic candidate for governor.

Askins, Fallin and Jackson signed the pledge at Oklahoma Sunshine '10: Privacy, Politicians and the Public's Need to Know, a conference to kick off national Sunshine Week in the state.

Freedom of Information Oklahoma Inc. invites other candidates for statewide offices and those running for legislative seats, municipal offices and school board seats to sign the pledge.

Instructions and a list of signers for the 2010 elections can be found on FOI Oklahoma’s Web site.

FOI Oklahoma began the Open Government Pledge in spring 2008 as part of the national Sunshine Week effort to spur public commitments to government transparency from candidates for president down to city council contests.


Joey Senat, Ph.D.
Associate Professor
OSU School of Journalism

All 5 gubernatorial candidates to participate in Sunshine Conference

Congresswoman Mary Fallin will join the four other gubernatorial candidates in an open government forum Saturday during the third-annual Sunshine Week conference.

Oklahoma Sunshine ’10: Privacy, Politicians & the Public’s Need to Know will be held at The Oklahoman, 9000 N. Broadway, Oklahoma City.

The conference's afternoon session will feature a question-and-answer session with candidates for governor and attorney general. All the announced candidates were invited to participate.

Fallin will join fellow Republican gubernatorial candidates state Sen. Randy Brogdon and Robert Hubbard, and Democratic candidates Lt. Gov. Jari Askins and Attorney General Drew Edmondson.

Jim Priest, a Democratic candidate for attorney general, also will participate.

Each candidate will be afforded three minutes to initially state his or her position on open government and any proposals regarding government transparency and the state’s open meeting and records laws.

The conference's morning sessions will focus on the issue of birth dates, public records and identity theft. Data privacy expert and former Iowa legislator Richard J.H. Varn will explain how improved identity management technology and practices, along with public education on self-protection measures, would be more effective defenses against identity theft than redacting information from public records.

Dallas Morning News attorney Paul C. Watler and computer‐assisted reporting editor Ryan McNeill will explain the newspaper’s lawsuit over government employee birth dates in Texas and the legislative debate in that state over public access to the information.

Mark Thomas of the Oklahoma Press Association will analyze current bills in the Legislature to limit or expand the public’s right to know in Oklahoma.

A luncheon panel will look back at 20 years of FOI Oklahoma Inc. Recipients of FOI Oklahoma's three annual FOI awards also will be announced.

Wednesday is the deadline for early registrations.


Joey Senat, Ph.D.
Associate Professor
OSU School of Journalism