An Oklahoma County trial judge ruled Tuesday that Gov. Mary Fallin may keep the content of records secret pursuant to a common law deliberative process privilege. However, District Judge Barbara Swinton gave Fallin 20 days to produce a log revealing the "dates, sender, recipients and re: lines" of 100 documents the governor claims are confidential under the privilege. "Only the content of the emails may be withheld," Swinton said.

The Lost Ogle and the ACLU of Oklahoma are expected to ask the Oklahoma Supreme Court to overturn Swinton's ruling that Fallin may claim a deliberative process privilege.

The Lost Ogle and the ACLU of Oklahoma sued Fallin in April 2013 after she claimed deliberative process and executive privileges to keep secret advice from “senior executive branch officials” on the creation of a state health insurance exchange.

(See Vandelay Entertainment LLC v. Fallin, Mary, No. CV-2013-763 (Okla. Co. April 9, 2013)

Fallin is the first Oklahoma governor to claim those privileges to keep records secret.

The ACLU of Oklahoma last week argued that those privileges do not exist in Oklahoma law. Fallin’s attorney Neal Leader argued that the deliberative process privilege and the executive privilege are implicit in the separation of powers clause in the Oklahoma Constitution.  (OKLA. CONST. art. 4, § 1)

Swinton had to decide if Oklahoma law recognizes the deliberative process privilege.

She said the privilege's main purpose "is to ensure that subordinates within an agency will feel free to provide the decision maker with their uninhibited opinions and recommendations without fear of later being subjected to public ridicule or criticism.”

Swinton took that definition from a District of Columbia case. But unlike Oklahoma's Open Records Act, D.C.’s open records statutes specifically recognize the deliberative process privilege.

In her opinion, Swinton did not address the separation of powers argument. Instead, she treated the deliberate process privilege as a subset of the executive privilege.

Focusing solely on the deliberative process privilege, Swinton held that it exists in Oklahoma as common law because prior Oklahoma cases had relied upon the privilege.

However, Swinton cited only from a plaintiff's motion in a 2009 case, not from the trial judge's ruling. Deliberative process was only one of several arguments made in the motion. The trial judge did not specify his reason for granting the motion to stop a deposition of a state agency's attorney. (Oklahoma Dep’t of Securities v. Global West, 2009 WL 4798886, CJ-09-2773, Dec. 4, 2009)

The trial judge's order did not mention deliberative process and did not show that a prior Oklahoma court had recognized this privilege.

The case did not concern an elected official, such as the governor, and was not an open records case.

Swinton also cited out-of-state cases to support her ruling but did not address a Massachusetts decision in which that state's highest court noted Oklahoma was one of many states whose existing law prevents the innovation of a common law deliberative process privilege. (Babets v. Secretary of Human Services, 403 Mass. 230 (Mass. 1988))

Fallin's spokesman said an appeal of Swinton's ruling is expected.

"The governor welcomes the chance to resolve this issue in court and provide clarity as to the provisions and limits of the Open Records Act. While the legal process plays out, our office continues to be committed to transparency and openness," said Alex Weintz in a written statement to news media outlets.

That commitment is questionable for a governor who is creating a broad open records exemption that no previous state executive sought.

Democracy is founded on the principle that citizens have a right to be fully informed about their government so they can vote accordingly. Swinton's ruling sets back Oklahomans’ right to know how and why their governor makes decisions.

 

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.