“I always would want to err on the side of full disclosure and transparency, however staff advice to the governor as the chief executive of the state is not the governor's opinion,” Keating said.
“That should be a matter of confidential deliberation and debate, because otherwise nobody's going to give you their candid opinion if they think it's going to be on the front page of the newspaper.”
The critics' take
But Senat said once a personal note or memo becomes a recorded conversation or directive, it's no longer considered personal. And executive privilege, he said, applies to the federal government and is not listed as an exemption under Oklahoma law.
“This ain't the White House,” he said.
“Our statute is very clear: If there's not a state statute that applies directly to those records, then it's open. What he's claiming is so broad it would defeat the very purpose of the Open Records Act.”
Senat said Fallin's policy would also shift the burden of proving a record is exempt from public disclosure from the record holder to the record requester, contrary to state law.
Another critic of Mullins' decision, Mark Thomas, executive vice president of the Oklahoma Press Association, said he was troubled and puzzled by the rejection.
“Historically when legal counsel throws up a phalanx of privileges to protect the executive branch, there is something amiss,” Thomas said.
“We would think, knowing the financial ramifications of the health care exchange, that she would be pushing out every scrap of information, factual and deliberative, to help the public understand why she is right on this issue.”
Kelly P. Kissel, Associated Press news editor for Arkansas and Oklahoma, said Mullins rejected a request last spring for documents related to the state's execution procedures.
He said the bureau was eventually able to get the information from Department of Corrections, but that Mullins' initial denial slowed the organization's reporting for several months.
“We were able to get some documents from her office which Mullins described as non-privileged, but they did withhold some documents,” Kissel said.
“She claimed executive privilege, which under the constitution and in state law she does not have.”
Mullins said Fallin's administration is “more open than anybody else has ever been.”
“I'm not sure that anybody was ever clear to the press before that such documents exist,” he said.
“What we're doing is we're saying we're not going to hide the ball from anybody. We're trying to be transparent as we can as far as producing a document, and when we don't produce it, we're trying to tell you why.”
Robert D. Nelon, who has practiced media law in Oklahoma City for 35-plus years, said he's never heard of an Oklahoma governor refusing to release public records on the basis of executive privilege, though he conceded it is unlikely that anyone would know unless it went to court.
“Certainly Mullins' approach to transparency is more transparent, but still if you don't get the documents the Open Records Act requires you to produce, then transparency is pretty meaningless,” he said. “That is a radical departure from what has happened in the past.”
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