- Associated Press - Thursday, June 12, 2014

OKLAHOMA CITY (AP) - An attorney for the American Civil Liberties Union told an Oklahoma County judge Thursday that Gov. Mary Fallin has no legal right to withhold documents requested by news organizations under the state’s Open Records Act concerning her rejection of a state health insurance exchange and Medicaid expansion under the federal health care law.

Brady Henderson, legal director of the ACLU of Oklahoma, urged District Judge Barbara Swinton to reject assertions by Fallin and her attorneys that she has the authority to claim an executive privilege that exempts her from the law and allows her office to withhold documents from the public that were used to establish important public policy.

“The public is entitled to the public’s own records,” Henderson said during oral arguments in the case. “It is something that has strong, strong policy impact on our state.”

Henderson said the public needs to know who is influencing their government and how.

“Openness in government is essential to the function of a democracy,” Henderson said.

But Senior Assistant Attorney General Neal Leader urged the judge to affirm Fallin’s right to claim executive privilege to avoid interfering with the kind of “frank, candid and confidential” communications with her staff and others that he said is needed for her office to function.

“The need for candor is almost self-evident,” Leader said. “There is a need for this confidentiality.”

Swinton said she could rule in the case as early as Friday.

The ACLU sued Fallin last year on behalf of The Lost Ogle, a satirical news website, which joined with several news organizations, including The Associated Press, in a request for documents from the governor’s office related to her decisions to reject a state health insurance exchange and to expand Medicaid coverage to thousands of low-income and uninsured Oklahomans. The ACLU of Oklahoma is representing The Lost Ogle’s parent company, Oklahoma City-based Vandelay Entertainment, LLC.

Leader said Fallin’s office released more than 51,000 pages of emails and other correspondence. But the office withheld 31 documents consisting of 100 pages of materials that her General Counsel Steve Mullins determined to be part of “executive and deliberative process privileges.”

“This is not a new claim that the governor is making,” Leader said. “The Open Records Act recognizes privileges.”

Leader argued that requiring the governor to make all the documents her office generates available for public inspection would subvert the office’s decision-making process.

He indicated that the withheld documents may contain “fiery debate” over the Medicaid issue, with some maintaining it was politically risky and the state could not afford to expand it while others argued in favor of extending health care coverage to thousands of Oklahomans who do not have it.

But Henderson said the Open Records Act is designed to hold government accountable and that there is no privilege that allows the governor to withhold records from the public. He said executive privileges may be recognized at the federal level and in some other states, but it is not present in Oklahoma law.

“The governor’s office is subject to the Open Records Act,” he said. “The people have an entitlement to it. It is ultimately the people who have the power.”

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