Third open records lawsuit filed against Gov. Fallin

Gov. Mary Fallin's slow release of public records has earned her a third Open Records Act lawsuit and put her in contention for a second Black Hole Award from FOI Oklahoma Inc. On Monday, the mothers of two Moore schoolchildren killed in the May tornadoes filed a lawsuit accusing Fallin of violating the Open Records Act by not releasing records related to school safety that were requested nearly three months ago, The Oklahoman reported.

Mikki Davis and Danni Legg want the records prior to a Feb. 25 state Supreme Court hearing on a proposed ballot measure aimed at putting storm shelters in public schools. Their sons died in the May 20 tornado that struck Plaza Towers Elementary School, the newspaper reported.

Alex Weintz, Fallin's spokesman, told The Oklahoman that Davis and Legg will receive the records but will have to wait in line because requests are handled first-come, first-served.

“We get dozens of open records requests. Some of them can require reading thousands of documents. Someone in our office has to compile and read through those documents. It's not as simple as hitting a word search and then forwarding an electronic file,” he said.

The "first-come, first-served" procedure resulted in an Open Records Act lawsuit being filed in late October by the governor's former Tulsa office director. At the time, Wendy Gregory's attorney told The Oklahoman that Fallin's staff had "stonewalled" his request for her personnel records for "the past six or eight months."

The Open Records Act grants each public employee “a right of access to his own personnel file." Gregory wants her personnel file to support a separate lawsuit that she was wrongfully fired by Fallin two weeks before Christmas in 2012.

On Jan. 10, Oklahoma County District Judge Patricia G. Parrish refused to dismiss Gregory's Open Records Act lawsuit against Fallin.

In court papers filed Thursday, Fallin's attorneys argued in part, "The Open Records Act does not require a governmental entity or officer to take requests pursuant to the Act out of the order received."

However, the statute does impose a duty upon public officials to provide "prompt, reasonable access." (Okla. Stat. tit. 51, § 24A.5(5)) A 1999 Attorney General opinion defined it as "only the time required to locate and compile" the public records. (1999 OK AG 58, ¶ 15)

"The duty to provide prompt and reasonable access is complied with only when a public body properly attends to its duty to provide a record," the opinion stated. (Id. ¶ 11)

The question is whether the procedure implemented by Fallin's staff is providing the public with "prompt, reasonable access."

The Tulsa World, for example, had to wait 15 months for the governor's office to release more than 8,000 records related to the prison reforms.

Legg and Davis' lawsuit, filed in Oklahoma County District Court, stems from an open records request filed Nov. 7 on behalf of Take Shelter Oklahoma.

Davis and Legg are involved with the advocacy group, which is leading an initiative petition to ask voters to approve a $500 million bond issue to pay for storm shelters in public schools. The group failed to reach the required number of signatures by mid-December. But it could gain another 90 days to collect signatures if the state Supreme Court upholds its legal challenge to the wording of the proposed ballot measure written by state Attorney General Scott Pruitt.

Legg and Davis are seeking documents "regarding the franchise tax, storm shelters, Take Shelter Oklahoma initiative petition, and any other related matter in regard to safety for schoolchildren and others during severe weather outbreaks and/or matters related to school security in cases of shooters and other dangerous school attacks," according to the petition.

Their request is "for all communications between the Governor, the Governor's staff and Governor's office internally and/or with the State Chamber of Oklahoma, any member of the State Chamber of Oklahoma, any legislator, the Attorney General and his office and/or staff and any other person."

Fallin's staff had not provided the documents as of Friday, according to the lawsuit.

Last spring, FOI Oklahoma named Fallin and her general counsel, Steve Mullins, as the Oklahoma officials most-deserving of the organization's 2013 Black Hole Award, which recognizes those who oppose dissemination of public information.

Fallin is the first Oklahoma governor to claim executive and deliberative process privileges to hide records from public scrutiny. The Lost Ogle and the ACLU of Oklahoma challenged that claim with a lawsuit in April. In a formal response, Fallin's attorneys said executive privilege is necessary to hide records that reveal political considerations behind her decisions on state policy.

As a gubernatorial candidate in 2010,  Fallin signed FOI Oklahoma's Open Government Pledge. In doing so, Fallin promised that she and the public bodies she would be elected to govern would "comply with not only the letter but also the spirit of Oklahoma’s Open Meeting and Open Records laws."

Judging by these lawsuits, Fallin hasn't lived up to that promise.


Joey Senat, Ph.D. Associate Professor OSU School of Media & Strategic Communictions

The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.