Gov. Mary Fallin's office won't release emails on health care decision

Citing executive privilege, Oklahoma Gov. Mary Fallin's office won't release emails explaining the decision to not set up a health insurance exchange.
BY ZEKE CAMPFIELD zcampfield@opubco.com Published: November 22, 2012
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Gov. Mary Fallin's office will not publicly release emails that could shed light on how she decided to create a state health insurance exchange and then changed her mind.

Last year, she accepted $54 million from the federal government to set up an exchange, an online insurance marketplace under the Affordable Care Act. She later rejected the money under pressure from Republican colleagues.

Monday, she said the state will not set up such an exchange, meaning the federal government will step in to create one for Oklahoma.

In response to a records request from The Oklahoman, Fallin's general counsel, Steve Mullins, said these emails involve the governor's deliberative process and won't be released.

Open records advocates say that there is no exemption in the state's Open Records Act for these emails and that her office is trying to redefine state law to limit public access.

“Governor Fallin wants a privilege of secrecy that apparently none of her predecessors thought was necessary,” said Joey Senat, a media law professor at Oklahoma State University.

Citing executive privilege and attorney-client privilege, Mullins said releasing electronic communications that pertain to state deliberations on public policy decisions could hurt policymakers' abilities to have productive internal discussions.

This marks at least the third time this year the governor's office has refused to release public records despite pledging in 2012 that she would respect the act and its spirit. Public records requests by the Tulsa World and The Associated Press were rejected earlier this year for similar reasons.

Fallin's spokesman, Alex Weintz, said Fallin does not believe the act was meant to allow access to “conversations between executive branch employees working on draft documents, brainstorming on public policy ideas, offering advice and counsel to the governor, or otherwise acting in an advisory role.”

“Eliminating the possibility of private dialogue inside the executive branch would damage the ability of the governor to design and implement good policy and would harm the public interest,” he said.

Court rulings

A 2009 opinion from the Oklahoma attorney general's office indicates emails generated while conducting the public's business are open to the public:

“Emails, text messages, and other electronic communications made or received in connection with the transaction of public business, the expenditure of public funds or the administration of public property, are subject to the Oklahoma Open Records Act.”

Similar rulings have been made in Pennsylvania, Iowa, Colorado, Tennessee, Florida, North Carolina and California, and elsewhere.

A 2008 records request in Detroit led to the release of text messages written and received by that city's mayor and ultimately exposed corruption, leading to his ouster.

In 2009, Alaska released more than 24,000 of former Gov. Sarah Palin's emails despite initial claims that they were exempt.

Mullins, who previously worked for the U.S. attorney's office in Oklahoma City, cited federal law and U.S. Supreme Court decisions in explaining the rejection.

He also said verbiage within the act allows exemption for attorney-client communications and for personal notes created by government employees.

“I'm sure I'm influenced by my past — I'm not saying that's not true — but I think this is a fair reading of the state law,” Mullins said.

“The privileges that are in litigation in Oklahoma are no different from the privileges that are in litigation in the federal courts.”

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