SEAN MURPHY Associated Press
March 18, 2014
OKLAHOMA CITY (AP) — Attorneys for the satirical local news website The Lost Ogle asked an Oklahoma County judge on Monday to force Gov. Mary Fallin to turn over documents that her office claims are privileged.
In a motion for summary judgment, the Oklahoma chapter of the American Civil Liberties Union asked District Judge Barbara Swinton to order disclosure and the right of inspection to about 100 pages of materials related to the governor’s decisions on health care that she is withholding from the public.
Swinton’s clerk tentatively scheduled a hearing on the motion for April 25.
The Lost Ogle joined with several news organizations, including The Associated Press, in a request for documents from the governor’s office related to her decisions to reject a state health insurance exchange and Medicaid expansion under the federal health care law. The ACLU of Oklahoma is representing The Lost Ogle’s parent company, Oklahoma City-based Vandelay Entertainment, LLC.
Fallin’s office released tens of thousands of pages of emails and other correspondence but withheld 31 documents consisting of 100 pages of materials that her General Counsel Steve Mullins determined to be part of “executive and deliberative process privileges.”
“It is the position of this administration, as well as past administrations, that not every document is subject to Open Records law,” Fallin spokesman Alex Weintz said in a statement Monday. “We believe both federal and state law are clear on this issue and look forward to making that case as the issue works its way through the legal system.”
Fallin’s attorneys have cited the doctrine of executive privilege is rooted in the separation of powers clause of the Oklahoma Constitution, but the plaintiff’s attorneys and media law experts have said there is no specific reference in the Open Records Act, the Oklahoma Constitution or existing Oklahoma appellate opinions to such privileges.
While executive privileges may be appropriate at the federal level for certain sensitive issues, ACLU attorney Brady Henderson argued in his motion that is hardly the case for the Oklahoma governor.
“This is not to say that the governor of Oklahoma does not deal with significant and sensitive matters, but there is an order of magnitude separating the governor’s ability to call up a National Guard unit after a storm and the president’s ability to engulf planet Earth in nuclear winter using the codebook in his coat pocket,” Henderson wrote.
Henderson and Oklahoma experts on media law have voiced concern that the case has the potential to dramatically weaken the state’s Open Records Act if a court were to side with Fallin.