ACLU has filed lawsuit over governor’s exemptions to state’s Open Records Act
By Sean Murphy\
Associated Press
OKLAHOMA CITY (AP) — Even though Gov. Mary Fallin remains locked in two separate legal battles over her office’s refusal to release documents, her top lawyer insists Fallin’s administration is the most transparent Oklahoma has ever seen.
Fallin signed a pledge while running for office to uphold both the spirit and the letter of the state’s open government laws, but critics say she is falling far short, and a statewide organization dedicated to supporting the state’s sunshine laws gave both Fallin and her general counsel its annual “Black Hole Award” this year for thwarting the free flow of information.
“I really passionately believe that we’re the most transparent administration you’ve ever seen,” Steve Mullins, Fallin’s general counsel, told The Associated Press in an interview at the governor’s office. “The reason I say that is that we do not hide documents.”
Mullins, a longtime federal prosecutor before joining Fallin’s administration, suggested some state officials in the past may have simply failed to produce documents that were incriminating.
“If there’s a document that we don’t want to give you, we tell you that the document exists,” Mullins said. “I can tell you the general stories I’ve been told about the past is that when certain documents would be problematic, they would perhaps be lost.”
When several news organizations, including the AP, requested documents from the governor’s office earlier this year on her health care decisions, Mullins released thousands of pages of emails and other correspondence but withheld about 100 pages of documents that he claims fall under “executive and deliberative process privileges.”
The Oklahoma chapter of the American Civil Liberties Union responded with a lawsuit claiming such privileges do not exist. Brady Henderson, ACLU Oklahoma’s legal director, said he expects oral arguments will be heard by a district court judge over whether such an exemption to the state’s Open Records Act exists.
But Henderson said he believes the case has the potential to dramatically weaken the state’s Open Records Act if a court were to side with Fallin.
“Any time the government operates in secret as a decision-maker, that’s problematic and potentially very dangerous to any democracy,” Henderson said. “The best weapon the people ever have against a government that becomes abusive or corrupt is information. They have to know what’s happening and what their leaders are doing.”
Fallin’s office currently is processing separate requests under the Open Records Act from several organizations, including the AP, for emails and documents related to the Justice Reinvestment Act, a sweeping criminal justice measure approved by the Legislature in 2012. The documents, which the AP requested in March, still haven’t been produced, although Mullins said the request should be completed in the next couple of weeks.
He blamed the delay on the extensive nature of the documents requested and a small staff that is available to process records requests.
“We’ve gone through both paper files and email files, and then we have to go through all the documents, and then we’ll produce them. But there are thousands of them. We’re talking about tons of documents,” Mullins said. “Basically, I have an attorney and a paralegal who work on the request until it’s done.”
The governor’s office has implemented a new policy under which requests for documents are processed in the order in which they are received. Because the request for the criminal justice documents is so extensive, Mullins said more than two dozen subsequent requests for records have not been fulfilled.
“I think we’re going to be able to go through the next group quickly, because they’re not thousands and thousands of pages,” Mullins said.
Fallin’s office also has been sued by Wendy Gregory, a former employee in her Tulsa office, who claims the governor is refusing to release Gregory’s employee and personnel file in violation of the Open Records Act.
Joey Senat, a journalism professor at Oklahoma State University and an expert in media law, said Fallin is not living up to the pledge she signed as a candidate for governor to support both the spirit and the law of open government in Oklahoma.
“She’s the first governor to make these constitutional claims to keep information secret, and if she ends up winning in court, that will be her legacy — to create a whole exemption for the governor’s office that would not apply to records in the hands of any other government entity in the state,” Senat said. “Open government has not been an emphasis of hers. It’s been the opposite.”
