VANDELAY ENTERTAINMENT, LLC v. FALLIN
2014 OK 109
| Okla. | 2014Background
- Vandelay sought all records relating to the Governor's ACA funding decisions under the Open Records Act.
- Governor Fallin produced over 51,000 pages but withheld 100 pages claiming executive privilege.
- Governor's general counsel letter asserted deliberative process and senior advisor confidentiality as bases for withholding.
- District Court acknowledged a common-law deliberative process privilege and required a privilege log for in-camera review.
- Governor later waived the privilege by releasing the 100 pages, notifying the court of the waiver.
- Vandelay appealed, arguing the privilege should not bar disclosure; the court retained the appeal for decision due to public interest.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Governor has a privilege to withhold confidential advice | Vandelay argues no privilege covers withheld materials. | Fallin asserts an inherent executive privilege protecting confidential advice from senior officials. | Governor has an inherent, non-absolute privilege to protect confidential advice. |
| Classification and scope of the privilege | Privilege is a narrow common-law deliberative process matter. | Privilege is constitutional in nature, rooted in executive power. | Privilege is rooted in the Governor's constitutional power and separation of powers. |
| Burden and procedure for in-camera review | Trial record insufficient to justify withholding; in-camera review not warranted. | Burden lies with the Governor to show applicability; in-camera review may be used. | Governor bears the burden to prove applicability; in-camera review is used to assess the material. |
Key Cases Cited
- United States v. Nixon, 418 U.S. 683 (1974) (presidential communications privilege; great deference to confidential advice)
- City of Colorado Springs v. White, 967 P.2d 1042 (Colo. 1998) (deliberative process privilege; burden shifting and purpose)
- Ford v. Board of Tax-Roll Corrections, 481 P.2d 428 (Okla. 1967) (inherent powers within separation of powers; governor’s inherent power)
- In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997) (distinction between chief executive communications and deliberative process privilege)
- Oklahoma Public Employees Association v. State ex rel. Oklahoma Office of Personnel Management, 267 P.3d 888 (Okla. 2011) (public access and balancing with confidentiality; context for Open Records Act)