About our open records battle with the Governor’s Office (Updated)

Back in December, we announced that we were taking a ride on the Mary Fallin Open Records Bandwagon. We, like other media organizations, simply wanted to view emails (a.k.a. public information) from the Governor’s office that would shed some light on Mary Fallin’s decision to not accept federal healthcare funding; emails the Governor’s office refused to release.

In my post, I highlighted five reasons why we filed the request. These were the final three:

3. “Wait a second. You all don’t even claim to be ‘real’ journalists. Why are you  doing all this?” Because someone has to. Some of the larger media outlets in our state, especially ones with conservative agendas like the Oklahoman and News 9, probably have too much to lose by taking on the Governor’s office in the courts. For smaller outlets, suing the Governor’s office to release the information may be cost prohibitive. Since we have a) nothing to lose and b) the legal backing of the ACLU, we’re the ideal outlet for this type of action.

4. Hopefully, though, it doesn’t get to that point. Once again, if any of our requests are denied, we’re taking this to the courts. And according to just about every lawyer or media law expert out there, we’re likely going to win. The Governor’s office can save everyone a bunch of time and hassle by releasing the records.

5. Like that’s going to happen. Logic and reason have never been Mary Fallin’s strong point.

Since that post was published, a lot of people have asked me for an update. “Have you got the records yet?” “Are you going to sue her?” “Has your hair turned pink?” Unless I was speaking to a drunk girl at the bar, I couldn’t really tell them anything. And if it was a drunk girl, I’d just lie about sneaking into the Governor’s Mansion and breaking into the open records vault like a spy and dodging laser beams and all that stuff. That’s because there was really nothing to report. We were getting the runaround. Dealing with the Governor on this thing has been more frustrating than collecting Fantasy Football money. We’d call. They’d say it would be a few weeks. We’d call. They’d send us to voicemail, etc. It was like they were hoping we’d forget the whole thing.

Well, we haven’t. In fact, we’re almost to the point of taking legal action. Here’s a press release that was issued yesterday by our legal team at the Oklahoma ACLU. They’ve done a lot of work on this and have guided us through this complicated and tiring process. Plus, they’ve actually found the Governor’s office to be in violation of other areas of open records law:

ACLU of Oklahoma Demands Governor Fallin Respond to 107 Day-old Open Records Request

Governor advised to take Open Records Act seriously or face litigation

The American Civil Liberties Union of Oklahoma has called on Governor Mary Fallin to correct serious failures to comply with Oklahoma’s Open Records Act. In a letter to Steve Mullins, Governor Fallin’s General Counsel, ACLU of Oklahoma Legal Director Brady Henderson cited both ongoing illegal practices and the Governor’s continuing denial of access to records requested by local news and entertainment outlet, The Lost Ogle, more than one hundred days ago.

“They’ve turned over nothing, period,” said Patrick Riley, Publisher and Owner of The Lost Ogle. “We have given them nearly four months, and received absolutely zero information.”

After trying fruitlessly by mail and phone for over one hundred days, ACLU of Oklahoma representatives went to the Governor’s Office last Thursday to inspect public records in person, only to find that the Governor does not comply with an important provision of the Open Records Act. “The law requires public offices like the Governor’s Office to have at least one person available at all times to release records to the public for their inspection,” said Brady Henderson, Legal Director of ACLU of Oklahoma. “We found that the Governor’s practice is simply not to do that.”

The Lost Ogle’s request seeks a variety of records relating to Governor Fallin’s controversial decision to reject federal funding for medicaid expansion and refuse to set up a state health insurance exchange. Both decisions have had serious impact for all Oklahomans, and in particular some of the State’s most vulnerable citizens. Questions about the motivation behind the decisions led to multiple news organizations having sought the public records that can provide answers.

“So far, the Governor’s Office has stonewalled every attempt to bring these records to light,” said Brady Henderson, Legal Director of the ACLU of Oklahoma. While The Lost Ogle never received a response from the Governor’s office citing any objection to its request, other journalists seeking similar records have been denied access based on an assertion of “executive privilege,” a privilege that does not exist in Oklahoma law.

In its letter to General Counsel Mullins, the ACLU of Oklahoma expressed both a desire to avoid litigation and a readiness to pursue it if necessary to secure the right to open and transparent government guaranteed to the people of Oklahoma.

“We continue to hope that Governor Fallin’s office will choose to obey the law voluntarily,” said Henderson. “The letter we sent Tuesday should serve as a warning that continuing to flaunt Oklahoma’s Open Records Act can not only result in a waste of taxpayers’ resources, but in a potential recommendation to the Oklahoma District Attorney to investigate criminal charges,” Henderson continued.

The letter also warned Governor Fallin of the larger consequences of her decision not to comply with the law, cautioning that “such conduct rides roughshod over the people’s right to open and accountable government, leaving a shattered public trust and a smokescreen of secrecy in its wake.”

The letter, sent on Tuesday, March 26, is attached, and contains a full timeline of the numerous steps taken by the ACLU of Oklahoma and The Lost Ogle to obtain access to the records.

Click here to view the letter that ACLU Legal Director Brady Henderson sent to Mary Fallin’s boss, errr, General Counsel in the press release. I bet Brady aced mean letter writing class in law school. My favorite part was this:

March 21, 2013 – I entered the Office of the Governor at the State Capitol in person to inspect whatever records were available on hand. I was informed that the only person who could release any records was you, but that you were “out of the office this week,” or words to similar effect. I specifically asked if there was anyone designated to handle any Open Records Act requests when you were unavailable. I was informed all such matters had to go through you and that no records could be released for inspection in your absence. I was then told to “make an appointment.”

First, let me address a point with scope far beyond that of The Lost Ogle’s request. The Oklahoma Open Records Act requires that all public bodies with offices maintaining full regular business hours keep their public records available for public inspection at all times during those hours. Furthermore, the specific part of the Act codified in 51 O.S. §24A.5(5) mandates that all public offices (such as the Governor’s) not only designate specific person(s) authorized to release records, but that at least one such person be available at all times.

The Open Records Act is quite explicit on this point. At all times during regular business hours, at least one person authorized to release records must be available. It seems clear that the standing policy and practice of the Governor’s Office does not match what is required by law. Please consider this letter as actual notice to you personally (in your official capacity as General Counsel) and to the Governor’s Office as a whole, that we believe the Office to be affirmatively out of compliance with this provision of the Oklahoma Open Records Act. If this violation of Section 24A.5(5) continues following a reasonable period in which to make corrections, there can be no question that it is a willful violation, and thus appropriate for criminal prosecution.

We’ll keep you updated on this story as it develops. In the meantime, I need to find a good spy costume. Some of these drunk girls are getting suspicious.

3/28/2013 UPDATE: That was fast! At around 2:00pm today, we (along with other media outlets) were notified that the records we requested we would be available at tomorrow morning at the Governor’s office. We have no clue if they’re providing everything we asked for, but it’s a start.”