IS there something Gov. Mary Fallin doesn't want the public to know about how she came to the decision last year not to accept a $54 million grant from the federal government?
Fair or not, that question lingers following Fallin's decision not to provide The Oklahoman with emails she sent or received in early 2011 when she at first decided to accept the money, then changed her mind following blowback from fellow conservatives.
The grant would have been used to establish an online marketplace called a health care exchange as part of the Affordable Care Act, President Barack Obama's signature piece of legislation during his first term. Obamacare has been unpopular in Oklahoma from the day it began to take shape, and the partisan way in which the law was approved by Congress made it all the more distasteful.
Oklahoma, like all states, regularly gets federal grant money for a variety of purposes. Yet the idea of doing so to create a state-based health care exchange that was part of Obamacare quickly became poisonous. So Fallin and GOP legislative leaders who had signed off on the grant did an about-face.
This newspaper requested email records from that period but was told by Fallin's general counsel, Steve Mullins, that because they involve the governor's deliberative process, they won't be released. Mullins cited executive privilege and attorney-client privilege. He said releasing emails tied to state deliberations on policy issues could hamper policymakers' ability to have productive internal discussions.
How's this for a solution? Pick up the phone and call the other person! Otherwise, you're bound by a 2009 opinion from the Oklahoma attorney general's office. That opinion couldn't have been more clear: “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.” (Our emphasis added.)
A federal grant, regardless of size, is public business. The money comes from the pockets of taxpayers. And it's not like Oklahoma is breaking new ground in this arena. Similar open records rulings have been made in a number of states, including Colorado, Florida, California, Iowa and Pennsylvania.
If the administration's thinking about the grant changed dramatically — and clearly it did — then Fallin should be prepared to discuss how and why that happened instead of pretending it didn't. The reasons she cites today for declining to build an exchange — too many federal strings attached, etc. — were being raised at the time she accepted the money.
Oklahoma State University professor Joey Senat, an expert in Oklahoma's open records laws, points out that public officials' personal notes or memos are no longer considered personal once they become a recorded conversation or directive. As for executive privilege, that relates to the federal government, not state government. “This ain't the White House,” Senat said.
Is Fallin hiding something about the health care exchange? Hard to say. But stonewalling the media on this issue leaves a bad impression and only ensures that the question, and others like it, will remain.