# VANDELAY ENTERTAINMENT, LLC v. FALLIN

> Supreme Court of Oklahoma · December 16, 2014 · 343 P.3d 1273

URL: https://www.frixlaw.com/law-library/cases/2761882

## Case

- **Full name:** 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
- **Court:** Supreme Court of Oklahoma
- **Decided:** December 16, 2014
- **Citations:** 343 P.3d 1273; 2014 OK 109; 2014 Okla. LEXIS 142; 2014 WL 7157015
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Colbert, Combs, Edmondson, Gurich, Kauger, Reif, Taylor, Watt, Winchester
- **Cited by:** 6 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2761882

## Opinion text

OSCN Found Document: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
Name
Level
None Found.
Citationizer: Table of Authority
Cite
Name
Level
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2761882. Public record. Not legal advice.