Gov. Mary Fallin said Wednesday her office has an executive privilege to withhold certain documents, even though no specific provision is found in the state Open Records Act.
“We do believe that,” she said. “It's been held under other court systems. We certainly want to be as open as we can with materials and documents that we've used to make decisions, but people have given me pros and cons under different issues. … We think that it's more disruptive than it is productive in helping us help the state of Oklahoma function as a government.
“We want to be open and transparent as humanly possible without being disruptive to people being able to candidly and openly express their opinions about an issue,” the governor said.
She said she didn't know whether the stalemate would end up in a legal challenge and the matter decided by the courts.
“We're working towards trying to find a resolution so that we can all function and do our jobs, whether you're in the press or whether I'm a public policy official trying to get good information from my staff in a candid way that won't be misconstrued or twisted around,” she said.
Fallin said her office has released documents that don't contain advice she considers confidential or that fall under the attorney-client privilege.
The governor echoed what her general counsel, Steve Mullins, said last month. He cited executive privilege and attorney-client privilege in stating that releasing electronic communications that pertain to state deliberations on public policy decisions could hurt policymakers' abilities to have productive internal discussions.
His remarks came in response to a records request filed by The Oklahoman for emails that could explain how Fallin decided to create a state health insurance exchange and then later changed her mind.
Fallin said her office has received about a dozen requests for similar records.
“Everybody's kind of piling on, wanting hundreds of thousands of documents which will take time … It's not an overnight process,” she said.
About open records
A 2009 opinion from the state attorney general indicates emails generated while conducting the public's business are open to the public. The Open Records Act does allow public officials to keep personal notes confidential, but those aren't being sought.
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 his decision.
Fallin and her legal advisers have been criticized for claiming that records requested by various media outlets are protected by privileges that exceed what the state Legislature and the state Supreme Court have granted government officials.
“We have a disagreement on how do you allow a state to function and to allow open and honest dialogue between a cabinet secretary to another cabinet secretary to the governor to the policy staff to the legal counsel to the governor, on whatever issue it might be, and have an open, honest opinion that they want to be expressed by that person without it becoming the headline of the paper the next day,” Fallin said.
“We are preparing documents, but we have literally received hundreds of thousands of documents for our office in requests from all kinds of topics,” she said.
Fallin said it will take hundreds of hours of manpower to go through the emails and records being sought to make sure they fall under the requested topic.
The governor said she will go through the documents, even as she is preparing a budget and a legislative agenda to present to lawmakers in early February, and working with state finance officials about the implications to Oklahoma if Congress and the president can't reach an agreement to avoid the fiscal cliff.
“We're trying to be as cooperative as possible, produce documents that we think is the information that people are looking for, but yet also trying to be able to have candid advice,” Fallin said.