An Oklahoma County trial judge said Thursday she expects to rule "by the end of the week" on whether executive and deliberative process privileges permit Gov. Mary Fallin to keep records secret from the public. Because Fallin is the first Oklahoma governor to claim these privileges, Oklahoma courts have never addressed the issue.

“I am just trying to find out how much authority I have out there to rely on,” District Judge Barbara Swinton told Fallin's attorney during heard oral arguments Thursday.

The Lost Ogle and the ACLU of Oklahoma sued Fallin in April 2013 after she claimed these privileges allow 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 decision to reject Medicaid expansion funding affected about 250,000 Oklahomans.

The phrases “executive privilege” and “deliberate process privilege” do not exist in Oklahoma’s Constitution or in any Oklahoma statute.

Fallin's attorney Neal Leader argued Thursday that these privileges are implicit in the separation of powers clause in the Oklahoma Constitution.  (OKLA. CONST. art. 4, § 1)

The senior assistant attorney general also likened the position of governor to that of the U.S. president and relied on a 1974 U.S. Supreme Court ruling to argue his position.

Candid advisory communications are essential to the functions of the governor’s office, Leader said.

Rejecting the privileges would “subvert the integrity of the governor’s decision-making process,” he said.

In response, the ACLU of Oklahoma's legal director argued that Oklahoma law has consistently recognized nothing is more essential to the operation of state government than an open and accountable government.

Brady Henderson pointed out that enforcement of the law, not deliberation, is the core function of the governor’s office. The Oklahoma Constitution states, “The Governor shall cause the laws of the State to be faithfully executed….” (Okla. Const. art. 6, § 8)

Leader told Swinton that no other state has declined these privileges. But Henderson noted that the Massachusetts Supreme Judicial Court refused to recognize executive privilege as inherent in the separation of powers. (Babets v. Secretary of Human Services, 403 Mass. 230 (Mass. 1988))

Leader reiterated that the privileges are essential to protecting the operations of the executive branch and argued that recognizing the privileges would ultimately benefit Oklahomans.

Henderson described that as “a vague assertion of need and nothing to back it up.”

He said this case is about the public’s right to know how the governor’s decisions are made and who influences the governor.

This case is about a governor’s accountability to the people who elected her.

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)

Swinton’s decision will either strengthen Oklahomans’ inherent right to know or strengthen their governors’ ability to work in secrecy and keep Oklahomans in the dark.

 

Nicole Nash, J.D.

(Editor's Note: Nash served as a legal intern for the ACLU of Oklahoma in 2013.)

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.