VANDELAY ENTERTAINMENT, LLC v. FALLIN

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VANDELAY ENTERTAINMENT, LLC v. FALLIN

2014 OK 109

Case Number: 113187

Decided: 12/16/2014

THE SUPREME COURT OF THE STATE OF OKLAHOMA

Cite as: 2014 OK 109 , __ P.3d __

NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION.

UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.

VANDELAY ENTERTAINMENT, LLC d.b.a. THE LOST OGLE,

Appellant,

v.

MARY FALLIN, in her official Capacity as GOVERNOR OF THE

STATE OF OKLAHOMA; STATE OF OKLAHOMA, ex rel. OFFICE OF THE GOVERNOR,

Appellees.

ON APPEAL FROM THE DISTRICT COURT FOR OKLAHOMA

COUNTY

HONORABLE BARBARA SWINTON, TRIAL JUDGE

¶0 Vandelay Entertainment, LLC d.b.a. The Lost Ogle filed suit in district

court to obtain records that the Governor withheld when responding to Vandelay's

Open Records Act request. The district court ruled the Governor had a common law

privilege to withhold the records in question. Vandelay appealed and this Court

retained the appeal. Upon review, we affirm on different grounds.

AFFIRMED.

Brady Henderson, ACLU of OKLAHOMA FOUNDATION, Oklahoma City, Oklahoma,

Attorneys for Plaintiff/Appellant,

Neal Leader, Senior Assistant Attorney

General, Oklahoma City, Oklahoma, Attorney for Appellee.

REIF, V.C.J.:

¶1 The legal controversy between Vandelay Entertainment, LLC d.b.a. The Lost

Ogle and Governor Mary Fallin stems from the Governor's refusal to release

certain records in response to a request by Vandelay

1 pursuant to the Open

Records Act, 51 O.S.2011 and Supp.2013,

§§ 24A.1 - 24A.29. The material facts underlying this controversy are not in

dispute.

¶2 Vandelay asked Governor Fallin to release all records relating to her

decisions regarding funding and programs under the Affordable Care Act. In

responding to this request, Governor Fallin released over 51,000 pages of

written material, but withheld 100 pages under a claim of "executive privilege."

In a letter to Vandelay dated March 29, 2012, the Governor's general counsel

explained: "In this document production, the Governor has invoked several legal

privileges, including ones involving senior executive branch officials

who are offering advice and counsel to the governor ." (Emphasis

added).

¶3 Vandelay filed suit in district court pursuant to § 24A.17(B)(1)

2 of the Oklahoma Open

Records Act, to compel the Governor to release the records that were withheld. A

copy of the March 29 letter from the Governor's general counsel was attached to

Vandelay's petition. Vandelay disputed the Governor's claim of privilege,

contending the withheld material was not specifically exempted from release by

the Open Records Act, nor was it required to be kept confidential by any

constitutional provision, statute, court decision or common law. In her answer,

Governor Fallin acknowledged the March 29 letter and formally "invoked the

doctrine of executive privilege with its deliberative process component" as a

legal basis to withhold the material in question.

¶4 The parties presented the case for decision on cross motions for summary

judgment. Citing

12 O.S.2011, §

2, 3 the district court ruled that Oklahoma had preserved

common law to govern matters not otherwise addressed by the Oklahoma

Constitution, statute or court decisions. The district court further ruled

common law recognized a deliberative process privilege, but directed the

Governor to submit a privilege log for judicial review to ensure the withheld

material fell within the privilege.

¶5 Satisfied with the trial court's summary judgment recognizing her claim of

privilege, Governor Fallin waived the privilege and released the 100 pages

previously withheld. In doing so, the Governor filed a notice informing the

court of the waiver and documents release. Copies of the particular documents

were not filed in the record.

¶6 Attached to this notice was a letter from the Governor's general counsel

to Vandelay explaining the Governor's decision. This letter stated that the

Governor's had theretofore acted (1) "To ensure that the Executive

Privilege/Deliberative Process Privilege continue to be recognized in Oklahoma"

and (2) "To ensure frank, candid and confidential discussions essential to the

Governor's decision making remain confidential, because senior advisors need

to present the Governor with conflicting ideas, thoughts and opinions

without concern over the consequences that would follow from compelled

public dissemination of their advice." (Emphasis added).

¶7 This letter further explained that "the passage of time since the

deliberations took place has resulted in the deliberative advice becoming far

less sensitive." The letter also related that the Governor released the withheld

documents out of concern for "transparency and openness in government" and "in

consultation with many of those who provided the advice in the documents."

¶8 Despite the release of the withheld material, Vandelay brought this

appeal, contending the district court erred in recognizing a common law

privilege exempting the Governor from complying with Vandelay's Open Records Act

request. Because this issue is a matter of broad public interest and there is a

likelihood of future repeated conflict between the Governor's claim of privilege

and the Open Records Act, this Court finds Vandelay's appeal is not moot.

Firefighters Pension v. City of Spencer ,

2009 OK 73, ¶¶ 4-5 , 237 P.3d 125,129-130 .

¶9 These same considerations dictate that this Court should retain this

appeal for decision. Upon de novo review,

4 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. We do so, however, on grounds different than those

articulated by the trial court.

¶10 In looking to common law, the trial court was no doubt persuaded by

City of Colorado Springs v. White ,

967 P.2d 1042 (Colo. 1998), cited in

the Governor's summary judgment briefing. This Colorado case sets forth a

thorough discussion of the common law origin and evolution of executive

privilege in general and the deliberative process component in particular.

Id. at 1047-58 .

¶11 The Colorado opinion points out that executive privilege originated in

the eighteenth and nineteenth centuries within the concept of the English "crown

privilege." Id. at 1047 . The opinion also notes that the deliberative

process component of executive privilege is often referred to as "the common

sense-common law privilege." Id. at 1048 .

¶12 Having existed as an aspect of executive office prior to the adoption of

the Oklahoma Constitution, we must conclude that the people at Statehood

intended to preserve this common law privilege for the office of the Governor by

the constitutional declaration, "The Supreme Executive power shall be vested in

a Chief Magistrate, who shall be styled 'The Governor of the State of

Oklahoma.'" Article 6, § 2 of the Oklahoma Constitution. In using the word

"supreme" to modify the term "executive power," we believe the people intended

to vest the Governor with the complete or full-range of executive powers that

were recognized at the time the Oklahoma Constitution was adopted. In other

words, executive privilege is not just a vestige of common law, but is an

inherent power of the Governor.

¶13 In Ford v. Board of Tax-Roll Corrections ,

1967 OK 90, ¶ 21 , 431 P.2d 423, 428 , this Court recognized that inherent

powers are reflected in the separation of powers clause in Article 4, § 1 of the

Oklahoma Constitution. This clause states "the Legislative, Executive and

Judicial departments of government shall be separate and distinct , and

neither shall exercise the powers properly belonging to either of the

others." (Emphasis supplied by the Ford opinion). Id. at ¶ 15, 431

P.2d at 427 . While the Ford case dealt with a question concerning the

inherent power of the judicial branch, the principles and analysis this Court

applied in recognizing the inherent power of the judiciary are the same for

recognizing and protecting the inherent powers of the other coequal

branches.

¶14 In Ford , this Court concluded the "powers properly belonging" to a

branch of government were those "which [are] essential to the existence, dignity

and functions [of the branch]" and include inherent powers. Id. at ¶ 21,

431 P.2d at 428 (citation omitted). One test for inherent power is whether the

subject matter is "so ultimately connected and bound up with [a branch's

function] that the right to define and regulate [the subject matter] naturally

and logically belongs to the [branch of government]." Id. Governor

Fallin's claim of executive privilege to protect confidential advice from

"senior executive branch officials" meets this test.

¶15 Several provisions in the Constitution addressing the express powers of

the Governor reflect that the Governor has discretion in exercising those

powers. Article 6, § 6 provides "The Governor [as] Commander-in Chief of the

militia of the State . . . may call out the same to execute the laws,

protect the public health, suppress insurrection, and repel invasion." (Emphasis

added). Article 6, § 7 states "The Governor shall have power to convoke the

Legislature . . . on extraordinary sessions [to consider subjects] as the

Governor may recommend for consideration." (Emphasis added). Article 6, §

9 declares "At every session of the Legislature . . . the Governor shall

communicate by message . . . and shall recommend such matters to the Legislature

as he [or she] shall judge expedient [and] communicate . . . such matters

as he [or she] may elect . . . ." (Emphasis added). Article 6, § 10

provides "The Governor shall have power to grant . . . commutations, pardons and

paroles . . . upon such conditions and with such restrictions and limitations as

[the Governor] may deem proper . . . ." (Emphasis added). Furthermore,

the exercise of discretion is clearly implied in the general veto power, Article

6, § 11; the line item veto for appropriation bills, Article 6, § 12; and the

appointment power, Article 6, § 13.

¶16 In addition, statutory law also gives the Governor discretion to do

certain acts. For example,

74 O.S.2011, § 2 provides "The Governor shall have the

power to remove any officers appointed by him [or her] . . . and may then

fill the same as provided in cases of vacancy." (Emphasis added).

74 O.S.2011, § 5 states "Whenever the

Governor is satisfied that any crime has been committed within the state, and

that the person charged therewith has not been arrested, or has escaped

therefrom , in his [or her] discretion he [or she] may offer a

reward . . . for the arrest and delivery . . . of the person so charged . .

. ." (Emphasis added). 74 O.S.2011, § 7 declares "The Governor of the State of

Oklahoma is hereby authorized, at the expense of the state, and within the

limitations of the appropriation . . . to maintain in such manner as the

governor deems necessary and appropriate , the mansion provided for his

[or her] occupancy by the State of Oklahoma and to pay all expenses connected

with said occupancy." (Emphasis added).

¶17 The sheer number, diversity and magnitude of discretionary decisions

entrusted to the Governor demonstrate the public interest is best served by the

Governor seeking and receiving advice to aid in deliberations and

decision-making. The United States Supreme Court has observed "[T]hose who

assist [executive decision-makers] must be free to explore alternatives in the

process of shaping policies and making decisions and to do so in a way many

would be unwilling to express except privately." United States v. Nixon ,

418

U.S. 683, 708 (1974)(superseded by statute on other grounds). The Court further

observed that "[T]he confidentiality of [advisory] conversations and

correspondence [is grounded in] the necessity for the protection of the public

interest in candid, objective, and even blunt or harsh opinions in [executive]

decisionmaking." Id.

¶18 The United States Supreme Court concluded these "considerations justif[y]

a presumptive privilege." Id. The Court also concluded that such a

privilege "is fundamental to the operation of Government and inextricably rooted

in the separation of powers under the Constitution." Id ; accord,

Freedom Foundation v. Gregoire , 310 P.3d 1252, 1258 (Wash. 2013)

("Refusal to recognize the gubernatorial communications privilege [to deny a

legislatively authorized records request] would subvert the integrity of the

governor's decision making process [thereby] damaging the functionality of the

executive branch and transgressing the boundaries set by . . . separation of

powers.")

¶19 In considering Governor Fallin's claim of privilege in the case at hand,

we agree with the United States Supreme Court's view that "complete candor and

objectivity from advisers calls for great deference from the courts" in

determining the scope of executive privilege.

418 U.S. at

706 .

An Oklahoma Governor has no less need than the President of the United States to

receive "candid, objective, and even blunt or harsh opinions" provided by

"senior executive branch officials" as well as the need to refuse to disclose

such advice that was solicited or received confidentially.

¶20 This subject matter is so ultimately connected and bound up in the

Governor's executive branch function that the right to regulate receipt and

disclosure of such advice by way of a privilege naturally and logically belongs

to the executive branch. Ford, ¶ 21, 431 P.2d at 428 . Stated another way,

a privilege to protect confidential advice provided by "senior executive branch

officials" is essential to the existence, dignity and functions of the Governor

as chief executive and lies within the Governor's inherent power. Id. The

principle of separation of powers expressly declared in Article 4, § 1 protects

this privilege from encroachment by Legislative acts, such as the Open Records

Act.

¶21 Unlike the claim of absolute privilege considered in United States v.

Nixon , Governor Fallin has recognized that the deliberative process

component of executive privilege that she claims in this case provides a

qualified privilege. A qualified privilege is one that "applies in a particular

instance if the purpose of the privilege is thereby served." City of Colorado

Springs v. White , 967 P.2d at 1051 . "The primary purpose of the

[deliberative process] privilege is to protect the frank exchange of ideas and

opinions critical to the government's decisionmaking [sic] processes where

disclosure would discourage such discussion in the future[.]" Id.

¶22 A qualified privilege is also one in which the burden falls upon the

government entity asserting the privilege. Id. at 1053 . Had Governor

Fallin not waived the privilege, she would have had the burden, upon in camera

review, to demonstrate that the withheld documents fell within the privilege.

Significantly, Governor Fallin's brief in support of her motion for summary

judgment recognized this burden and requested the opportunity to demonstrate

that the retained documents are protected by the deliberative process

privilege.

¶23 Based on the limited summary judgment record presented for review, we

need not determine the full scope of the deliberative process component of

executive privilege, but must only delineate the burden in cases of advice

solicited or received from "senior executive branch officials." We leave for a

more appropriate case the issue of whether the privilege extends to advice

solicited from parties outside of state government.

¶24 The burden in cases involving advice from "senior executive branch

officials" includes a showing that the advice was (1) pre-decisional, and (2)

deliberative (i.e., involved personal opinions, as opposed to purely factual,

investigative material). Id. at 1052 . In addition, the burden in the case

at hand would also include a showing that (1) the Governor solicited or received

advice from a "senior executive branch official" for use in deliberating policy

or making a discretionary decision, (2) the Governor and the "senior executive

branch official" knew or had a reasonable expectation that the advice was to

remain confidential at the time it was provided to the Governor, and (3) the

confidentiality of the advice was maintained by the Governor and the "senior

executive branch official." While Governor Fallin did not define or specify whom

she considers to be "senior executive branch officials," this group would

reasonably include the Governor's general counsel and staff, the members of the

Governor's cabinet, executive branch officers elected statewide, and executive

branch agency heads appointed by the Governor.

¶25 Governor Fallin's answer and summary judgment briefing also acknowledged

that the deliberative process privilege may even yield, when a substantial or

compelling need for disclosure is shown. Once the Governor establishes that a

document satisfies the criteria above, the burden shifts to the party requesting

a document to show (1) a substantial or compelling need for disclosure, and (2)

this need for disclosure outweighs the public interest in maintaining the

confidentiality of the executive communication. Id. at 1051 . A case in

which there is reason to believe that documents may shed light on government

wrongdoing may present a substantial or compelling need for disclosure that

would outweigh the need for confidentiality. Id.

¶26 In recognizing the deliberative process component of executive privilege,

we are mindful that the Legislature enacted the Open Records Act to assist the

people in their oversight of State government and to aid the people in the

exercise of their inherent power to alter or reform their government. Article 2,

§ 1 of the Oklahoma Constitution. This Court has said that public access to

government files (1) "permits checks against the arbitrary exercise of official

power and secrecy in the political process," (2) "gives private citizens the

ability to monitor the manner in which public officials discharge their public

duties," and (3) "ensures [performance] in an honest, efficient, faithful, and

competent manner." Oklahoma Public Employees Association v. State ex rel.

Oklahoma Office of Personnel Management ,

2011 OK 68, ¶ 36 , 267 P.3d 838, 851 .

¶27 However, the deliberative process component of executive privilege is

also grounded in a strong public interest. The Governor's need for confidential

advice in deliberation of policy and decision-making is just as important to

"[the people's] protection, security, and benefit, and to promote their general

welfare," as the people's access to information. Article 2, § 1 of the Oklahoma

Constitution.

¶28 By vesting the Governor with supreme executive power and delegating

discretionary decision-making authority to the Governor, we believe the people

placed checks on their access to certain types of confidential advice the

Governor considers, and on legislative power to mandate disclosure of such

advice. In place of on demand disclosure, 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. These safeguards fully protect the public from abuse of the privilege,

while shielding communications ultimately found to warrant protection from

public disclosure.

¶29 In conclusion, we hold that the trial court correctly ruled that the

Governor has a privilege to protect confidential advice solicited or received

from "senior executive branch officials" for use in deliberating policy and

making discretionary decisions. We disagree, however, with the trial court's

conclusion that this privilege rests solely upon common law. We hold that this

privilege is a "power properly belonging" to the Governor's constitutional

office as head of the executive branch and is protected by the separation of

powers clause in Article 4, § 1. The need for confidential advice from "senior

executive branch officials" for use in the Governor's deliberations and

decision-making is "essential to the existence, dignity and functions" of the

executive branch. Also, the need to protect such confidential advice is so

ultimately connected and bound up with the executive function that the right to

regulate disclosure of such confidential advice by way of a privilege naturally

and logically belongs to the executive branch.

¶30 This privilege is not absolute, however, and is subject to the check and

balance of in camera judicial review, in lieu of legislatively-mandated public

disclosure. The Governor has the burden upon in camera judicial review to

demonstrate that any material relating to such confidential advice satisfies the

criteria set forth in this opinion. Even confidential advice that satisfies this

criteria can be subject to disclosure where (1) the requesting party can show a

substantial or compelling need for disclosure and (2) the need for disclosure

outweighs the public interest in maintaining the confidentiality of the

advice.

AFFIRMED.

¶31 COLBERT, C.J., REIF, V.C.J., KAUGER, WATT, WINCHESTER, EDMONDSON,

TAYLOR, and GURICH, JJ., concur.

¶32 COMBS, J., concurs in part; dissents in part (by separate

writing).

FOOTNOTES

1 Section 24A.5 of the Open

Records Act provides in pertinent part:

All records of public bodies and public officials shall be open to any person

for inspection, copying, or mechanical reproduction during regular business

hours; provided:

1. The Oklahoma Open Records Act, Sections 24A.1 through 24A.28 of this

title, does not apply to records specifically required by law to be kept

confidential[;]

. . . .

5. A public body must provide prompt, reasonable access to its records but

may establish reasonable procedures which protect the integrity and organization

of its records and to prevent excessive disruptions of its essential

functions.

. . . .

51 O.S.2011 § 24A.5.

2 This section provides in pertinent part:

B. Any person denied access to records of a public body or public

official:

1. May bring a civil suit for declarative or injunctive relief, or both, but

such civil suit shall be limited to records requested and denied prior to filing

of the civil suit;

. . . .

12 O.S.2011, § 24A.17(B)(1).

3 This section states:

The common law, as modified by constitutional and statutory law, judicial

decisions and the condition and wants of the people, shall remain in force in

aid of the general statutes of Oklahoma; but the rule of the common law, that

statutes in derogation thereof, shall be strictly construed, shall not be

applicable to any general statute of Oklahoma; but all such statutes shall be

liberally construed to promote their object.

12 O.S.2011, §2.

4 An order that grants summary relief disposes solely of

law questions and is reviewable by a de novo standard of review. Under this

standard, an appellate court claims for itself plenary, independent and

non-deferential authority to re-examine a trial court's legal rulings. Manley

v. Brown, 1999 OK

79 , § 22 n.30, 989 P.2d 448 , 455 n.30 (citations omitted).

COMBS, J., concurring in part, dissenting in part:

¶1 While I concur with the majority's determination that the Governor

possesses a qualified executive privilege based upon her inherent powers as

Governor under the Oklahoma Constitution, I write separately to specify the

nature of the privilege and to more clearly highlight its boundaries. The

majority's use of the label "deliberative process privilege" to describe the

constitutional privilege that shields the Governor's communications with her

advisors blurs the line between distinct facets of executive privilege in a

manner likely to cause confusion in the future.

¶2 The majority describes in detail the unique constitutional role of the

Governor and the importance of candor in her communications with her advisors.

The executive privilege that protects such candor is built in part upon the

decision of the Supreme Court of the United States in United States v.

Nixon , 418 U.S. 683 , 94 S.Ct. 3090 , 41 L.ED.2d 1039 (1974) (superseded by

statute on other grounds), which the majority favorably quotes at several points

when it compares the duties and powers of the Governor to those of the

President. The qualified executive privilege described by the Court in

Nixon has also been labeled the "chief executive communications

privilege" in order to distinguish it from the larger category of privileges

that may fall under the umbrella of executive privilege. See Matthew W.

Warnock, Stifling Gubernatorial Secrecy: Application of Executive Privilege

to State Executive Officials , 35 Cap. U. L. Rev. 983 , 984-85 (2007).

¶3 Such specificity is necessary in order to distinguish the chief executive

communications privilege from the common-law-based deliberative process

privilege theory relied upon by the trial court in this cause and adopted by the

majority. The former is specific to the chief executive and rooted in the

Constitution while the latter applies more generally to government actors in the

executive branch and originated at common law. Both were originally federal

doctrines that have been adopted to varying degrees by the states. The

difference was thoughtfully set out by the United States Court of Appeals for

the D.C. Circuit in In re Sealed Case , 121 F.3d 729 (D.C. Cir. 1997),

where the court stated:

[w]hile the presidential communications privilege and the deliberative

process privilege are closely affiliated, the two privileges are distinct and

have different scopes. Both are executive privileges designed to protect

executive branch decisionmaking, but one applies to decisionmaking of executive

officials generally, the other specifically to decisionmaking of the President.

The presidential privilege is rooted in constitutional separation of powers

principles and the President's unique constitutional role; the deliberative

process privilege is primarily a common law privilege.

¶4 By relying heavily upon Nixon and the Governor's unique

constitutional role and powers, while at the same time determining that it is

the common-law-based deliberative process component of executive privilege that

controls here, the majority engages in a blending of two distinct legal theories

of executive privilege. The Supreme Court of Alaska, in Gwich'in Steering

Committee v. State, Office of the Governor , succinctly described the

difference:

[w]e stated in Capital Information Group v. State, Office of the

Governor that we considered the terms "executive privilege" and

"deliberative process privilege" to be synonymous for purposes of that

discussion. But the two terms are not identical. Instead, the deliberative

process privilege is a "branch" of a broader group of governmental privileges.

The roots of the deliberative process privilege lie in the common law; it

protects the mental processes of government decisionmakers from interference,

not constitutional notions of separation of powers.

10 P.3d 572, 579 (Alaska 2000) (emphasis added) (footnotes omitted). The

majority opinion appears to supply a constitutional basis for the deliberative

process privilege stemming from the separation of powers doctrine, which is a

significant departure from the federal precedent responsible for both distinct

branches of executive privilege. Further, the deliberative process privilege, as

the In Re Sealed Case court noted, can apply to other executive branch

entities besides the chief executive, and the majority's blending of the two

ideas makes it difficult to distinguish where the Governor's constitution-based

executive privilege ends and the deliberative process privilege begins.

¶5 Recognizing a clear distinction between the two doctrines helps prevent

such confusion. While the chief executive communications privilege may be more

all-encompassing with regards to documents and more difficult to surmount, it is

also limited in nature and less broadly applicable than the deliberative process

privilege. Most importantly, the chief executive communications privilege should

not be construed so as to extend privileged status to all communications

that may be made to the Governor. The court in In re Sealed Case

considered this issue as well, and reached the following conclusion:

[w]e believe therefore that the public interest is best served by holding

that communications made by presidential advisers in the course of preparing

advice for the President come under the presidential communications privilege,

even when these communications are not made directly to the President. Given the

need to provide sufficient elbow room for advisers to obtain information from

all knowledgeable sources, the privilege must apply both to communications which

these advisers solicited and received from others as well as those they authored

themselves. The privilege must also extend to communications authored or

received in response to a solicitation by members of a presidential adviser's

staff, since in many instances advisers must rely on their staff to investigate

an issue and formulate the advice to be given to the President. We are aware

that such an extension, unless carefully circumscribed to accomplish the

purposes of the privilege, could pose a significant risk of expanding to a large

swath of the executive branch a privilege that is bottomed on a recognition of

the unique role of the President. In order to limit this risk, the

presidential communications privilege should be construed as narrowly as is

consistent with ensuring that the confidentiality of the President's

decisionmaking process is adequately protected. Not every person who plays a

role in the development of presidential advice, no matter how remote and removed

from the President, can qualify for the privilege. In particular, the

privilege should not extend to staff outside the White House in executive branch

agencies. Instead, the privilege should apply only to communications authored

or solicited and received by those members of an immediate White House adviser's

staff who have broad and significant responsibility for investigating and

formulating the advice to be given the President on the particular matter to

which the communications relate.

121 F.3d at 751-52 (emphasis added) (internal citations omitted).

¶6 Complete candid objectivity from advisors may call for great deference

from the courts, Nixon , 418 U.S. at 706 , but the same cannot be said for

potentially unsolicited advice and lobbying directed at the Governor that comes

from outside the office of the chief executive, even if such advice factored

into the decisional process on an issue. To allow otherwise would make the

privilege overbroad and allow it to grow beyond its role in protecting the

unique role of the chief executive.

¶7 In conclusion, I agree that the Governor's communications with her

advisors are subject to a qualified executive privilege that has its basis in

the Governor's inherent powers and the Constitution. However, that privilege is

distinct from the common-law-based deliberative process privilege and I write

separately to stress that I disagree with the majority's decision to blend these

two branches of executive privilege into a hybrid

entity.

Citationizer © Summary of Documents Citing This Document

Cite

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None Found.

Citationizer: Table of Authority

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Name

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Oklahoma Supreme Court Cases

Cite Name Level

1967 OK 90 , 431 P.2d 423 , FORD v. BOARD OF TAX-ROLL CORRECTIONS Discussed

2009 OK 73 , 237 P.3d 125 , STATE ex rel. OKLA. FIREFIGHTERS PENSION AND RETIREMENT SYSTEM v. CITY OF SPENCER Discussed

2011 OK 68 , 267 P.3d 838 , OKLA. PUBLIC EMPLOYEES ASSOC. v. STATE ex rel. OKLA. OFFICE OF PERSONNEL MANAGEMENT Discussed

1999 OK 79 , 989 P.2d 448 , 70 OBJ 2752, Manley v. Brown Discussed

Title 12. Civil Procedure

Cite Name Level

12 O.S. 2 , Common Law to Remain in Force in Aid of General Statutes Discussed

Title 51. Officers

Cite Name Level

51 O.S. 24A.1, Short Title Cited

51 O.S. 24A.5, Open and Confidential Records Cited

Title 74. State Government

Cite Name Level

74 O.S. 2 , May Remove Officers Appointed Cited

74 O.S. 5 , Reward for Criminal's Arrest Cited

74 O.S. 7 , Maintenance of Governor's Mansion Cited