MuskogeePhoenix.com, Muskogee, OK

Oklahoma News

June 18, 2014

Judge rules Fallin can withhold documents

— OKLAHOMA CITY — An Oklahoma County judge ruled Tuesday that Gov. Mary Fallin has the legal right to withhold some documents requested by news organizations under Oklahoma’s Open Records Act.

District Judge Barbara Swinton ruled that the “deliberative process privilege” cited by Fallin in withholding the documents is recognized by Oklahoma law and supported by a state Supreme Court ruling as an exception to the Open Records Act.

“The court finds the deliberative process privilege thus may be used by the defendant to protect the content of the documents withheld by the defendant,” Swinton’s decision said.

But the ruling states aspects of the documents and emails other than their contents, including who sent them, the dates they were sent, the recipient and any reference lines, are not exempt from disclosure under the Open Records Act.

Swinton ordered Fallin’s office to prepare a privilege log of the withheld documents within 20 days that includes information that must be disclosed under the law.

Brady Henderson, legal director of the American Civil Liberties Union, which filed the lawsuit on behalf of The Lost Ogle, a satirical news and entertainment website, said an appeal is likely in the case. But Henderson said the decision effectively narrowed the number and kinds of privileges the governor can claim to withhold documents from the public. Fallin also cited executive privilege and attorney-client privilege while withholding the documents.

“The governor effectively went into this hearing with three privileges and came out with one,” Henderson said. “The governor doesn’t get to unilaterally claim: ‘I can withhold what I want to.”’

Henderson said news organizations will still be able to find out who was sending documents and emails to the governor and what they were about from the privilege log.

“Those things alone are important,” he said.

A spokesman for the governor, Alex Weintz, said Fallin’s office was pleased with the ruling.

“We expect today’s ruling to be just the first step in a longer legal process,” Weintz said. “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.”

The ACLU filed the lawsuit last year on behalf of The Lost Ogle, which 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 not expand Medicaid coverage to thousands of low-income and uninsured Oklahomans. The ACLU of Oklahoma is representing The Lost Ogle’s parent company, Oklahoma City-based Vandelay Entertainment, LLC.

Fallin’s office released more than 51,000 pages of emails and other correspondence. But the office 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.”

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