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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:
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 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 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.
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.
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.
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. 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.
