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 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.
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.”
Former Oklahoma Gov. Frank Keating, also a former U.S. attorney, said he does not remember rejecting a specific records request, but that he would not release emails that demonstrated behind-the-scenes policy discussions by his staff.
“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.
Kissel 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.”