On a legislative “siding” – a fight over government transparency?

As the train picks up speed and the Legislature actually seems headed toward a state budget accord and eventual adjournment, professional journalists and advocates of government transparency are focused on, and worried about, a proposal that could erode access to public records. 

Pending in the House Conference Committee on Public Safety, Judiciary and Military Affairs is House Bill 1559. The proposal from state Rep. Fred Jordan, a Jenks Republican, would weaken state government transparency by shifting more public documents and communications into the “attorney-client privilege” category. 

Working the issue on behalf of transparency has been Mark Thomas of the Oklahoma Press Association. 

In a discussion with CapitolBeatOK, Thomas commented, “The bill – as written – expands the ability of public bodies to use attorney-client privilege to keep communications confidential. Current law limits their privilege to pending litigation and investigations when the court has ruled they can keep those communications confidential.

“We think the law should stay the way it is – with a limitation on public bodies and public officials to claim attorney-client privilege.” 

Members of the Conference Committee are state Reps. Sue Tibbs of Tulsa, Fred Jordan of Jenks, Steve Martin of Bartlesville, Mark McCullough of Sapulpa, Lewis Moore of Arcadia, Richard Morrissette of Oklahoma City, Paul Roan of Tishimongo, Dustin Roberts of Durant, Colby Schwartz of Yukon, Ben Sherrer of Pryor Creek, Dan Sullivan of Tulsa, Paul Wesselhoft of Oklahoma City and Cory Williams of Stillwater.

Thomas told CapitolBeatOK key members of the panel — in terms of hopes to stop the proposal — were Reps. Tibbs, S. Martin, McCullough, Moore, Morrissette, Roan, D. Roberts, Schwartz, Sherrer, Sullivan, Wesselhoft and Williams.

In a recent letter to legislators, copied to members of his association, Thomas elaborated the OPA’s position, which also reflects the view of most advocates of open government. He said news organizations oppose H.B. 1559 “because the bill expands the attorney-client privilege for public bodies (see page 4 of the bill) by striking out the language that limits the privilege.  

“This is a major transparency problem. Public officials and public bodies will use this unlimited attorney-client privilege to keep information from public view. Current law permits limited attorney-client privilege for public bodies.  They can use the privilege when ‘communications concern a pending investigation, claim or action and the court determines that disclosure will seriously impair the ability of the public officer or agency to process the claim or conduct a pending investigation, litigation or proceeding in the public interest.’”

Bottom line, Thomas says, the limitation should remain as is. He pointed out OPA supports language developed by the office of Attorney General Scott Pruitt that would “keep public officials from claiming the privilege before a multicounty grand jury.”

However, he reasserted, “removing the original limitation will create more closed doors and closed records than ever before. We believe more transparency is needed at all levels of government – not less.” 

Thomas has asked members of the conference panel “to either reject H.B. 1559, or restore the stricken language and retain the AG’s adopted language which is underlined in the bill.”