Oklahoma Supreme Court says governors have privilege to keep top-level advice from public view

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OKLAHOMA CITY — Oklahoma's governor has a constitutional privilege to withhold documents related to confidential advice from top officials while deliberating policy and making executive decisions, the state's highest court ruled Tuesday in a decision criticized by advocates for open government.

The Oklahoma Supreme Court wrote in its near unanimous decision that the governor has a unique privilege that isn't subject to legislative acts such as the Open Records Act. The court said the governor can withhold materials related to certain advice from and deliberations with "senior executive branch officials," which it said would include members of her cabinet, general counsel and staff, other elected officials and executive agency heads she appoints.

"I'd say it's another blow against government transparency in this state," said Joey Senat, a journalism professor at Oklahoma State University and a longtime advocate for government openness. "This is a precedent in the state. Gov. (Mary) Fallin's legacy will be that she has won the right for governors to keep secret the reasons why a governor takes a certain policy approach."

Fallin spokesman Alex Weintz says the governor agrees with the court that chief executives should be able to receive candid, private advice from senior advisers.

"As the court ruled today, that right to private advice is protected by the U.S. Constitution," Weintz said. "With that said, the governor remains absolutely committed to transparency in all levels of government. Our office regularly turns over documents in response to Open Records Act requests, and nothing about that process will change."

The decision was handed down in a case filed on behalf of a satirical website that pokes fun at Fallin and other public officials and personalities.

The Lost Ogle website sued after it and several news organizations, including The Associated Press, requested documents from the governor's office related to her decisions to reject a state health insurance exchange and not expand Medicaid coverage in Oklahoma. Fallin's office handed over tens of thousands of documents, but withheld 31 documents consisting of 100 pages that her general counsel determined were part of executive and deliberative process privileges.

Fallin later released the documents, but the American Civil Liberties Union of Oklahoma, which represented the website, moved forward with the litigation, arguing such privileges didn't exist.

The Oklahoma Supreme Court wrote that the governor's privilege applies when the advice is given before a decision is made, involves opinions instead of facts, and involves deliberating policy or making a discretionary decision. The court said the privilege is subject to review by a judge and that the governor must show it meets the criteria set out in the ruling. A judge can also decide that even materials that satisfy the criteria can be subject to disclosure if the requesting party can show a "substantial or compelling need for disclosure."

ACLU Oklahoma Executive Director Ryan Kiesel said he's disappointed the court recognized the governor has such a privilege but grateful the ruling provides an option to challenge a decision to withhold documents.

"Before our client brought this challenge, the governor was simply withholding them and there was no process for challenging that assertion of privilege."


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