Gov. Mary Fallin may keep secret the advice that “senior executive branch officials” give her to shape government policies and decisions, the state Supreme Court ruled today.
The court said a deliberative process privilege belongs “to the governor’s constitutional office as head of the executive branch and is protected by the separation of powers clause” in the Oklahoma Constitution.
The group of officials whose “personal opinions” Fallin could keep secret “would reasonably” include her general counsel and staff, her 14 Cabinet members, “executive branch officers elected statewide, and executive branch agency heads appointed by the governor,” the court said.
Eight justices also left open the possibility that such a “privilege extends to advice solicited from parties outside of state government.”
However, all nine justices agreed that the privilege — at least as applied to advice from senior executive branch officials — is not absolute. Even if the governor proves that the privilege applies to requested records, a trial court could determine that a “substantial or compelling need for disclosure … outweighs the public interest in maintaining the confidentiality of the executive communication,” the justices said.
Fallin is the first Oklahoma governor to claim such a privilege to withhold records from public scrutiny. In 2012, she made the claim when refusing to release execution procedure-related documents to The Associated Press and when denying various records to the Tulsa World.
Hiding Political Considerations
In 2013, The Lost Ogle and the ACLU of Oklahoma filed a lawsuit challenging Fallin’s claim that executive and deliberative process privileges permitted her to keep secret 100 pages of emails on the creation of a state health insurance exchange.
In a formal response to that Open Records Act lawsuit, the Attorney General’s Office said executive privilege was needed to hide records revealing political considerations behind Fallin’s 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.”
In June, an Oklahoma County trial judge ruled that Fallin could keep the content of the emails secret under a common law deliberative process privilege.
Even though the trial judged had ruled in her favor, Fallin released the documents in August. Most of the emails revolved around the political cost of accepting federal funds for health care, the Tulsa World reported. Also included was a political analysis of state Senate races filled with pointed criticisms of some candidates, the newspaper reported.
Despite the documents having been released, the Supreme Court said Tuesday it agreed to hear the appeal because “this issue is a matter of broad public interest and there is a likelihood of future repeated conflicts between the Governor’s claim of privilege and the Open Records Act.”
The Supreme Court said it disagreed with the trial judge’s reasoning that the deliberative process privilege claimed by Fallin “rests solely upon common law.”
The justices said the state Constitution provision vesting the governor with “Supreme Executive power” had preserved the common law privilege for the governor’s office.
“In using the word ‘supreme’ to modify the term ‘executive power,’ we believe the people intended to vest the Governor with the complete or full-range of executive powers that were recognized at the time the Oklahoma Constitution was adopted,” wrote Vice Chief Justice John Reif for the majority. “In other words, executive privilege is not just a vestige of common law, but is an inherent power of the Governor.
“The sheer number, diversity and magnitude of discretionary decisions entrusted to the Governor demonstrate that public interest is best served by the Governor seeking and receiving advice to aid in deliberations and decision-making.”
The state justices then agreed with the U.S. Supreme Court that those paid to advise our top elected officials won’t do so candidly, objectively and even bluntly if the public is privy to that advice. (See United States v. Nixon, 418 U.S. 683, 703.)
“An Oklahoma Governor has no less need than the President of the United States to receive ‘candid, objective and even blunt or harsh opinions’ provided by ‘senior executive branch officials’ as well as the need to refuse to disclose such advice that was solicited or received confidentially,'” wrote Reif.
“This subject mater is so ultimately connected and bound up in the Governor’s executive branch function that the right to regulate receipt and disclosure of such advice by way of a privilege naturally and logically belongs to the executive branch,” he wrote. “Stated another way, a privilege to protect confidential advice provided by ‘senior executive branch officials’ is essential to the existence, dignity and functions of the Governor as chief executive and lies within the Governor’s inherent power.”
The state Constitution’s separation of powers clause “protects this privilege from encroachment by Legislative acts, such as the Open Records Act,” Reif wrote.
“By vesting the Governor with supreme executive power and delegating discretionary decision-making authority to the Governor, we believe the people placed checks on their access to certain types of confidential advice the Governor considers, and on legislative power to mandate disclosure of such advice,” he wrote.
However, the majority also ruled that the deliberative process privilege is qualified.
If Fallin’s claim regarding particular advice from “senior executive branch officials” is challenged, the governor must prove to a court that the advice was “pre-decisional” and “deliberative (i.e., involved personal opinions, as opposed to purely factual investigative material).”
The governor also will have to show that:
- She “solicited or received advice from a ‘senior executive branch official’ for use in deliberating policy or making a discretionary decision”;
- She and the “‘senior executive branch official’ knew or had a reasonable expectation that the advice was to remain confidential at the time it was provided”; and
- That confidentiality “was maintained by the Governor and the ‘senior executive branch official.'”
If the governor proves that the privilege applies to the document, the person requesting the documents must prove a “substantial or compelling need for disclosure … outweighs the public interest in maintaining the confidentiality of the executive communication.”
He contended that the process will protect the public, explaining:
In place of on demand disclosure, in camera review and judicial balancing of competing public interests provide a middle ground accommodation when there is a question over whether the privilege exists or should be enforced. These safeguards fully protect the public from abuse of the privilege, while shielding communications ultimately found to warrant protection from public disclosure.
He said a “reason to believe that documents may shed light on government wrongdoing may present a substantial or compelling need for disclosure that would outweigh the need for confidentiality.”
Reif and the majority said they weren’t determining the “full scope of the deliberative process component of executive privilege,” only what the governor must prove when the advice was from “senior executive branch officials.”
“We leave for a more appropriate case the issue of whether the privilege extends to advice solicited from parties outside of state government,” Reif wrote.
Justice Douglas Combs disagreed. He argued that extending the privilege to “unsolicited advice and lobbying directed at the Governor that comes from outside the office of the chief executive, even if such advice factored into the decisional process on an issue … would make the privilege overbroad and allow it to grow beyond its role in protecting the unique role of the chief executive.”
Combs distinguished between the qualified “chief executive communications privilege” described by the U.S. Supreme Court in Nixon and a common law deliberative process privilege relied upon by the Oklahoma County judge and “adopted by the majority” of his colleagues.
Combs said the “chief executive communications privilege” applies only to the governor but the common law deliberative process privilege “can apply to other executive branch entities besides the chief executive.”
Also, he said, the “chief executive communications privilege should not be construed so as to extend privileged status to all communications that may be made to the Governor.”
Falin’s Legacy is More Secrecy
The privilege recognized by the state Supreme Court turns an operating principle of the Open Records Act upside down. Under the statute, the government official denying access must cite an applicable state or federal statutory exemption. But under this privilege, the burden falls on Oklahomans to prove that they should be allowed to see a government record.
This privilege also allows Fallin to claim secrecy for records that would be open to the public if in the hands of local officials because state legislators have not deemed the information confidential.
However, the Oklahoma Supreme Court’s decision is not surprising. Just three years ago, the same court said the public had no interest in distinguishing one government worker from another so as to track them across government jobs or determine which ones have committed crimes, evaded paying taxes, filed for bankruptcy or made political contributions.
But this decision comes about only because Fallin and her chief legal counsel — Steve Mullins — have made unprecedented claims of privilege for an Oklahoma governor.
Deliberative process privilege represents a disagreement over the public’s fundamental role in overseeing its government, including the formulation of policy on its behalf. Fallin and Mullins — and now the state Supreme Court — believe that state officials won’t give candid opinions if what they say – or at least what they put in writing – can become public knowledge through an open records request.
But if Fallin’s Cabinet members – whose salaries range from $65,000 to $90,000 – can’t be candid with the public, she’s hiring the wrong people.
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?
As a gubernatorial candidate seeking public support in 2010, Fallin promised 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 has failed repeatedly to live up to that promise. Her unprecedented use of executive privilege in Oklahoma earned her and Mullins the annual Black Hole Award from FOI Oklahoma in 2013. She received the award again this year for delaying access to records that should be easily available.
Now, Fallin is responsible for a new layer of secrecy behind which her successors may hide the public’s business.
Joey Senat, Ph.D.
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.