In case you missed it, the Oklahoma Supreme Court reached a decision in our open records lawsuit against Governor Fallin.
Before I get to their ruling and examine what it means, I should let you know that I'm writing this post after watching the two-hour season finale of Survivor. Yep, I still watch Survivor. I'm that guy, so if you want to call me a loser after reading this post, make sure you do it for the right reason.
Back to the topic at hand...
The Oklahoma Supreme Court ruled by a narrow 8-7 margin on Tuesday that Governor Mary Fallin, as the leader of the Executive branch, has the power to keep certain records and documents a secret thanks to not-so-clear powers granted to her in the Oklahoma Constitution. The deciding vote was cast by the newest member of the court, The Honorable Janet Barresi.
Via NewsOK.com:
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.”
Okay, I should probably clarify one thing. I kind of lied in my paragraph above. The Supreme court only has 9 justices. There isn't a Barresi on the court. Despite my glowing endorsement of them over the years – and the fact that my dad made that gigantic eagle wing sculpture in their building – they voted 8-0 in the Governor's favor, with one rebel justice agreeing, yet dissenting, based on stupid details. Basically, we were dominated, throttled and destroyed like a box of donuts in The Oklahoman break room. Embarrassing, huh? 8 to fucking nothing. FML.
Since we got our asses handed to us, our ACLU attorneys responded exactly how you think they would respond. They declared victory:
Despite recognizing a privilege that does not appear in the Open Records Act, today’s opinion represents a victory for our client and for the people of Oklahoma. From the outset of this case, we have maintained that the Governor does not have the authority to unilaterally hide records without justification. In this opinion, the Supreme Court revoked the Governor’s self-issued blank check, shifted the burden of proof to the executive branch, and affirmed our insistence upon judicial oversight. As a result, the current and future occupants of the Governor’s mansion will be held to a greater degree of transparency and accountability. We are very grateful to our client for having the courage to challenge an unchecked practice of twisting the law to keep the people of Oklahoma in the dark about the politics behind consequential policy decisions.
Wow, I need to work on my spin, because that was awesome. As Samuel L. Jackson would say, I'm one courageous motherfucker! Through their reporting, The Oklahoman kind of agrees with Ryan:
Riley is the founder and main energy source behind the widely popular and excellent local media outlet, The Lost Ogle, which publishes on a wide range of topics with refreshing and rejuvenating satire and wit...
Let’s face it: The Lost Ogle IS the real alternative media outlet in the Oklahoma City area and has been for a few years now. It speaks truth to power. It possesses the biting, satirical edge now, not the Gazette. That’s what matters, and it’s vitally important. The Gazette is trying to find its new niche in an uncertain and changing media market, but its new business model limits substance and sustenance for open-minded thinking people here. It has become what The Oklahoman wants it to be: A freebie no one really reads anymore. If that’s what it takes for it to survive financially, then so be it, but it still makes me sad.
Wait a second. That was the wrong thing. That was actually from a post on Okie Funk where my old college professor, Kurt Hochenauer, goes down on me like I'm Larry Nichols in Scott Pruitt's game parlor. I'm just posting that to boost my self-esteem and let you know how awesome and truly courageous I am.
Here's the explanation of the ruling that lets us toss confetti and toot trombones:
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.”
See, that's not so bad.
Before we filed our lawsuit, Governor Fallin could just refuse to release documents on claims of executive privilege and you basically had to sue her or take her word for it. Now you have to take a judge's word for it, too. I'm sure that will work out great. As we know, all judges are fair and impartial, and do not let their political views or feelings affect their sworn duties and responsibilities. Just ask the judge who won't approve name changes for transgendered Oklahomans, or that one who used a penis pump in court, or the one who pocketed DHS money to care for adopted twins who actually lived with someone else, or the one who was caught exposing himself to women at a hotel, or, well, whatever.
Okay, I kind of got off point there. I've actually had a couple of Moles tell me that they think the court ruled in Fallin's favor as part of plan to cozy up with the executive branch and prevent changes being made to the way judges are appointed and selected in Oklahoma. Apparently, the legislature is getting pissed that judges keep ruling that all the unconstitutional laws they pass are, in fact, unconstitutional, so they want to get more conservative, ideological judges in the court. I'm not sure I believe it, but it's something fun to toss out there for the conspiracy theorists and logical people out there.
Back when we filed this lawsuit, I listed three reasons why were doing it and what we hoped to accomplish. Let's review them:
1) Activism. Someone has to do it, right? We just can't let the Governor trample over the will of the people and do whatever she wants. It doesn't matter if it's open records or open-toed shoes, the 4th estate has to hold this lady accountable. Since every other legitimate media outlet in Oklahoma (including The Oklahoman) didn't have the gonads to file a lawsuit, we figured it might as well be us. It's not like we have any bridges left to burn with her office.
I think we accomplished this. Although we didn't get the result we wanted, Oklahoma's open records act – at least what's left of it – is now more clear. The Governor can no longer just refuse to release records. She has to show the records to a judge, and then the judge takes several factors into consideration when ruling if they are to be released.
2) Publicity. Shameless? Yes. Can you blame us? No. It's kind of funny to see the local media have to take us seriously.
This worked, too. The biggest highlight for me, personally, was the KFOR Social Media Bandit finally mentioned us by name. It was awesome. The only thing that upset me is they didn't use a clickbait headline like "You won't believe what the Oklahoma Supreme Court ruled today!" or "Open Records Bandit Exonerated by Supreme Court."
We also were mentioned by The Oklahoman, AP, News 9, etc. My favorite part was how everyone described this site. The general consensus was TLO is a "satirical news website." That's kind of a broad, somewhat misleading label, but I'll take it. Truth is, I own the site and even I don't really know how to properly describe it, especially when I'm talking to drunk girls at bars. How do I make a blog sound cool? Any suggestions?
Here was the third item:
3) The ACLU is representing us and basically doing all the work. Let's give credit where credit is due. The ACLU are the ones driving this Bricktown Water Taxi. We're just absent minded tourists that are along for the ride, taking pictures of brick buildings and thinking about going to Chelino's. Okay, we're not that bad. We've had meetings with our ACLU legal team and discussed strategy and stuff, but they're the legal experts in this thing.
That's still true. I was involved in things to a certain capacity, but for the most part it was telling jokes to ACLU interns. The ACLU did all the work on this thing. I guess I should thank them for letting me tag along for the ride. It was fun.
Anyway, some people in the local media are mad at us for this whole thing. They think we took the governor's bait and blew up open records laws in this state. If you're one of those people, you should probably go fuck yourself. If you were content with a broken system where the Governor could withhold records with no accountability, you're part of the problem. Was the open records act weakened by the court's ruling? Not really... it was apparently weak to begin with. Now we know that and can hopefully do something about it.
So instead of getting mad, throwing their hands in the air, and whining about this in editorials, perhaps the Oklahoma Press Association, legislature, business community and others should work together to amend or change the language in our state's constitution to protect the public's rights to examine open records from our elected leaders. I'm not sure that would actually work, and since it won't have anything to do with Sharia law or banning homosexuals it won't be easy or a priority, but sometimes change and progress aren't easy. Trust me. I still watch Survivor.
