The governor of Oklahoma has the authority to withhold the release of certain documents from the public because of executive privilege, but that power is not absolute, the Oklahoma Supreme Court ruled Tuesday.
"Executive privilege is not just a vestige of common law, but is an inherent power of the governor," the Supreme Court said.
Justices said Gov. Mary Fallin acted within the law in March 2012 when she chose not to release about 100 out of 51,000 pages of written material related to her decisions regarding Affordable Care Act programs and funding.
"We agree with the trial court that Oklahoma governors have a privilege to refuse to disclose advice they receive in confidence from 'senior executive branch officials' when deliberating discretionary decisions and shaping policy," the court said. "We leave for a more appropriate case the issue of whether the privilege extends to advice solicited from parties outside state government."
The state Supreme Court cited a 1974 U.S. Supreme Court decision in a case involving former President Richard Nixon as part of its decision.
Although justices ruled in favor of the governor, they said they also recognize that the Oklahoma Open Records Act serves an important function in informing the public about the activities of their government.
In situations where there are questions as to whether the executive privilege is being abused, documents should be reviewed by a judge in private and a decision made on whether the documents should be released, the court said.
"In camera review and judicial balancing of competing public interests provide a middle ground accommodation when there is a question over whether the privilege exists or should be enforced," the court said. "These safeguards fully protect the public from abuse of the privilege, while shielding communications ultimately found to warrant protection from public disclosure."
Although Fallin initially withheld about 100 pages of documents, she later released those records while maintaining that she was not required to do so because of executive privilege. The documents contained some frank discussions by members of the governor's staff on the hot political issues of whether the governor should support Medicaid expansion and setting up a state health care exchange for people to select insurance.
(c)2014 The Oklahoman
