Former Fallin employee sues governor for access to own personnel file

Oklahoma's Open Records Act grants each public employee "a right of access to his own personnel file,"  but Gov. Mary Fallin's former Tulsa office director has had to sue to get her own. In a lawsuit filed in Oklahoma County District Court on Tuesday, Wendy Gregory seeks her personnel and employment records, as well as the office's policies and procedures manual, The Oklahoman reports.

Gregory needs her personnel file to support her claim that she was wrongfully fired by Fallin two weeks before Christmas.

In a wrongful termination lawsuit filed Jan. 31, Gregory claims that Fallin's chief of staff, Denise Northrup, ordered her to turn in her keys and smartphone on Dec. 10 because the Governor's Office had received an IRS garnishment against Gregory.

That lawsuit notes that federal law prohibits the firing of an employee whose earnings are subject to a single garnishment in a single year. The case was moved to federal court in late May.

(Gregory also is claiming intentional infliction of emotional distress, defamation and false light.)

Gregory's termination lawsuit says the garnishment was the result of a child custody dispute between her husband and his former wife. The garnishment was quickly cleared and Gregory had "received  positive employee reviews" prior to being fired, according to the lawsuit.

Hence, Gregory wants her personnel file to support her wrongful termination claim.

The Open Records Act states, "Except as may otherwise be made confidential by statute, an employee of a public body shall have a right of access to his own personnel file." (OKLA. STAT. tit. 51, § 24A.7(C))

The statute permits public agencies to keep confidential those personnel records relating to “internal personnel investigations including examination and selection material for employment, hiring, appointment, promotion, demotion, discipline, or resignation.” (OKLA. STAT. tit. 51, § 24A.7(A)(1))

The provision granting employees access to their own personnel files is an exception, according to a 1986 state attorney general opinion. (1986 OK AG 39)

"It is clear in the foregoing provisions of 24A.7, that the Legislature intended to create two separate classes of persons whose right of access to personnel files depends upon the class to which such persons belong," according to the opinion. "While members of the general public may not have access to all personnel records . . . , the Legislature has conferred greater rights to an employee of a public body, whose access to his own personnel file is unrestricted by subsection A, but governed instead by subsection C. (Id. ¶ 2)

"Clearly, then, subsection C operates as an exception to the authority of a public body to keep some personnel records confidential by providing the employee access to his or her own records, unless, elsewhere in the law, an exception may be found." (Id. ¶ 3)

The law is clear. But Gregory's attorney, Anthony Mareshie, told The Oklahoman that the governor's office has “stonewalled” him.

“I've been sitting around for the past six or eight months with a client who has basically been slandered and defamed,” he said.

“Everyone who reads about this case will think that she was fired for cause. Where are the records? There should be something in the file that reflects why she was terminated.”

The Open Records Act case has been assigned to Judge Patricia G. Parrish.

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.