Gov. Mary Fallin releases 50,000 pages of records on ‘Obamacare’ policy decisions [Tulsa World, Okla.]

March 30--OKLAHOMA CITY -- Gov. Mary Fallin released more than 50,000 pages of records Friday concerning her "Obamacare" policy decisions, including her 2011 choices to reject federal funding for Medicaid expansion and not to build a state-operated health insurance exchange.

In response to state Open Records Act requests from multiple media organizations, including the Tulsa World, Fallin released CDs including 51,029 pages of "non-privileged" records dating to her first days in office.

In a cover letter accompanying the records, Steven Mullins, general counsel to Fallin, said 31 documents, consisting of 100 pages, were withheld. The letter cited "executive privilege, deliberative process privilege and attorney-client privilege" for the denial of those records.

"The governor is firmly committed to the principles of transparent and open government," Mullins wrote. "She also recognizes that there are limited circumstances where confidentiality of governmental documents is appropriate."

Although it is impossible to say what documents were omitted, there are some hints.

Several released emails refer to a Nov. 16 letter from Attorney General Scott Pruitt concerning the state's pending legal challenge of the Affordable Care Act and federal regulations to implement it. Pruitt's letter -- which could be considered an attorney-client document -- does not appear to be included in the released records.

The decision to release the records comes after months of criticism over Fallin's refusal to release certain records. Earlier this month, Fallin and Mullins were given a "Black Hole Award" by FOI Oklahoma Inc., a nonprofit watchdog group dedicated to open records and meetings.

In an open letter to Fallin in December, FOI Oklahoma Inc. criticized Fallin's assertion that she is allowed to decide which records involving her office are privileged.

"Your office has claimed at least three times recently that executive branch privileges allow you to hide records from public view," states the letter from Lindel Hutson, then president of the group. "This is disappointing because conducting government in secrecy defies the state's Open Records Act and frustrates the ability of citizens to understand basic functions of state government."

Hutson and Joey Senat, associate professor of journalism at Oklahoma State University, have pointed to Fallin's signature on a "transparency pledge" she signed while running for governor. Fallin promised to obey not only the law's letter but also its spirit, Hutson and Senat have noted.

Senat said he believes residents disagreed with Fallin's stance that she has executive privilege. He said no such privilege exists in state law or the Constitution.

"I think public opinion has been against her from the beginning. I think people have disagreed with her," he said.

The released records include a behind-the-curtain look at what was happening in the Governor's Office between the Nov. 6 re-election of President Barack Obama and Fallin's Nov. 19 announcement that she wasn't accepting Affordable Care Act funding for Medicaid expansion or constructing a state-operated health insurance exchange.

On Nov. 9, Fallin's scheduler, Dana Wolpert, wrote to Chief of Staff Denise Northrup, Policy Director Katie Altshuler and Mullins that Fallin would be taking part in a "governors-only conference call to discuss healthcare issues ... based on the election outcome."

Republican governors from Alabama, Alaska, Arizona, Florida, Georgia, Indiana, Kansas, Louisiana, Maine, Mississippi, Nebraska, Nevada, New Jersey, New Mexico, North Dakota, Ohio, Pennsylvania, South Dakota, Tennessee, Texas, Utah, Virginia, Wisconsin and Wyoming were confirmed for the call, along with Fallin, according to one document.

Four days later, Altshuler told Fallin press spokesman Alex Weintz and Senior Public Affairs Officer Cody Inman that "Gov has made no decisions yet regarding implementation of an exchange or Medicaid expansion. We are still researching (and) considering our options."

Fallin ultimately announced the state would not accept the Medicaid money or build a state exchange, clearing the path for Pruitt's lawsuit.

After Fallin made her decision but before it was announced, there were a series of emails among staff members concerning how to discuss the move with key legislative leaders and opinion shapers, including George Kaiser Family Foundation President Ken Levit.

Included in the released records are scores of emails and letters from Oklahomans responding to Fallin's Nov. 19 announcements. The majority of that correspondence supports the governor's choices.

"Please accept our thanks for the courageous stand you have taken in refusing to expand Medicaid and refusing to make the state establish an insurance exchange under Obamacare," one Tulsa couple emailed Fallin's office. "Your willingness to stand up for Oklahoma against federal attempts to control state policy are tremendously appreciated."

But another man from Tulsa wrote: "You are more interested in advancing in the Republican Party than helping the people of Oklahoma. You choose to further your own position while ignoring the needs of Oklahoma citizens. I am disgusted with your position and your continued opposition to Obamacare. You need to help our state, not yourself."

Fallin sent a Nov. 16 email to Inman responding to his compilation of constituent calls and letters in the week prior to her Medicaid announcement.

Inman noted that the Governor's Office received 1,818 calls, the most it had ever received in one day, and the contacts were two-to-one in favor of the governor's policies.

Fallin's comment was, "Thank you all!!!!!"

Elsewhere, the thread of the documents is less easily followed.

Documents jump in and out of order, often appearing multiple times and out of context.

A single newspaper clipping may appear again and again -- for example -- as it is routed from one staff member's office to another.

Press releases -- especially the one announcing Fallin's November decisions -- are revised and redistributed throughout the Governor's Office multiple times.

Fallin's claim of an executive privilege exemption from the Open Records Act predates the controversy over the health-care-policy records.

In August, her office declined to release emails between Fallin and Michael Thompson, secretary for safety and security and head of the Department of Public Safety, regarding the hiring of Thompson's friend, Scott Barger.

On Nov. 7, the World sought emails from Fallin to Secretary of Health and Human Services Terry Cline and Department of Corrections Director Justin Jones. Fallin reportedly held a meeting in September regarding how to implement the Justice Reinvestment Act but did not invite Cline or Jones.

Officials for Cline and Jones said Fallin's office had asserted executive privilege over some of the records. Mullins was to meet with the World to discuss the denial in December but canceled the meeting.

In December, Fallin directed her Cabinet officials to find "examples of transparency" within their agencies. She said then her office was "working toward trying to find a resolution so that we can all be able to function and do our job."

The executive privilege claim attracted the attention of the ACLU of Oklahoma.

Brady Henderson, legal director of the civil rights group, said there is no mention of executive privilege in the state Open Records Act, and it was an issue of transparent government for the group.

After waiting more than 100 days for a response to a request for open records from Fallin's office, the group attempted to review records in person at the Governor's Office.

Under the Open Records Act, public bodies are required to have at least one person available at all times during business hours to release records for public inspection and copying.

"So we said, 'Let's just find out what happens if we go ask to inspect the records in person,' " Henderson said. "We're hopeful it gets their attention that we're serious about wanting this stuff."

On March 21, ACLU staff visited the governor's office and were told that all records requests were required to go through Mullins.

There were no records available to inspect, they were told, and Mullins was gone and no one else was designated to release records in his absence, Henderson said. The ACLU asked to see a list of all recent records requests filed with the Governor's Office (and the status of each), as well as a copy of Fallin's official written policy regarding records requests and compliance. Neither was available, Henderson said he was told.

The lack of an available written policy or a designated person in the Governor's Office to release records to the general public during normal daily business hours is concerning, Henderson said.

"They're using assertions of executive privilege that aren't in the law to limit people's access to government," Henderson said. "At the end of the day, it's extremely hard, if not impossible, for the public to review that decision. It effectively is the government saying, 'You don't need to see what I'm doing, just trust me.' "

World staff writers Randy Krehbiel, Cary Aspinwall and Jarrel Wade contributed to this story.

Wayne Greene 918-581-8308 Ziva Branstetter 918-581-8306

[email protected][email protected]

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