An Oklahoma County judge ruled Tuesday in Gov. Mary Fallin’s favor in a dispute with the news media over the openness of records.
The judge ruled the governor can lawfully withhold from the public documents covered by a deliberative process privilege.
At issue in the dispute are 31 documents about a 2011 decision involving Obamacare.
“The court finds the deliberative process privilege is recognized under common law in Oklahoma, and it is supported by Supreme Court rule as an exception to the Oklahoma Open Records Act,” District Judge Barbara Swinton ruled.
“The court finds the deliberative process privilege thus may be used by the defendant to protect the content of the documents withheld.”
An appeal is expected eventually.
“This is only the beginning of our work and we look forward to the next steps in the process to ensure that our client and the people of Oklahoma have the transparency they are afforded by the law,” said Ryan Kiesel, executive director of the American Civil Liberties Union of Oklahoma.
The ACLU of Oklahoma last year sued the governor for the records, on behalf of The Lost Ogle, a satirical online news site.
“We are pleased by the court’s ruling,” said Alex Weintz, a spokesman for the governor.
He said the ruling is expected to be “just the first step in a longer legal process.”
“The governor welcomes the chance to resolve this issue in court and provide clarity as to the provisions and limits of the Open Records Act,” the spokesman said.
“While the legal process plays out, our office continues to be committed to transparency and openness. We have, to date, released over 100,000 pages of documents in response to open records requests, more than all other Oklahoma governors combined,” Weintz also said.
Fallin in 2011 rejected a $54 million federal grant that would have paid for the creation of an online exchange, or marketplace, in Oklahoma for purchasing private health insurance plans.
The governor rejected it after opposition surfaced to establishing the exchange, one of the key components to the new federal health care law known as Obamacare.
Fallin in March 2012 released more than 51,000 pages of documents about her decision in response to open records requests from The Oklahoman, The Associated Press and other news organizations.
She withheld 31 documents totaling 100 pages. Her general counsel claimed those pages were exempt from the state Open Records Act on the grounds of executive privilege, deliberative process privilege and attorney-client privilege.
Brady Henderson, the legal director of the ACLU in Oklahoma, interpreted Tuesday’s ruling as a partial victory.
“The governor went into court with three privileges and she’s come out with one,” he said. “The court said, ‘There’s not constitutional or statutory authority for executive privilege. I’m not going to recognize it.’ Likewise, she does not recognize any properly asserted attorney-client privilege ... so she effectively rejects two of the three arguments by the governor.”
The judge noted in her five-page order that the main purpose of the deliberative process privilege “is to ensure that subordinates within an agency will feel free to provide the decision maker with their uninhibited opinions and recommendations without fear of later being subjected to public ridicule or criticism.”
It was unclear Tuesday if the governor claimed the deliberative process privilege on all of the 31 withheld documents.
The judge gave the governor 20 days to prepare a log listing what privilege was asserted for each document.