Gov. Mary Fallin sends most emails about state business from a personal email address but her office didn’t search her personal email account before responding to an open records lawsuit over a 2014 botched execution, records show.

The lawsuit, in which I’m a plaintiff, notes that there is growing and widespread interest in government officials’ use of private email to conduct public business. The suit cites cases involving New Jersey Gov. Chris Christie, Florida Gov. Rick Scott and Democratic presidential nominee Hillary Clinton.

Fallin says in a response filed last week that it’s a mistake to compare her use of personal email for state business to the controversy surrounding Clinton’s email.

Gov. Mary Fallin rejects comparisons between her use of personal email to conduct state business and the controversy surrounding former Secretary of State Hillary Clinton's use of a private email server.

That’s an important distinction for the governor, considering she talked to President-elect Donald Trump Monday about job opportunities in his administration.

Fallin is being considered for a job heading the Department of the Interior. (She said the meeting was just an initial meeting and she wasn’t offered a job.)

But back to her emails.

Trump, you’ll recall, repeatedly said his Democratic opponent should be locked up for using private email to conduct government business when she was secretary of state. Clinton was cleared of wrongdoing by the FBI.

Legal filings that are part of an Open Records Act lawsuit I filed two years ago against Fallin and the Department of Public Safety detail the governor’s use of at least one private email address —  to send and receive emails related to official business.

The lawsuit contains about a dozen examples in which the governor and members of her staff sent and received emails about important state business — a botched execution and the state’s largest earthquake — on their personal email addresses.

Falin may use other email addresses but we don’t know, since her address has been redacted from nearly all personal emails produced as part of the lawsuit. There’s some indication she may now be using a second personal email address.

This email after the Pawnee earthquake sent to Gov. Mary Fallin indicates she could be using two personal email addresses to conduct state business. The Open Records Act does not prohibit the practice but her office is required to provide emails that are subject to disclosure whether they are sent from a personal or state email address. Fallin's office initially failed to search her personal account, court records state.

The lawsuit filed in Oklahoma County District Court along with the parent company of the Tulsa World, my former employer, seeks emails and other records related to the botched execution of Clayton Lockett, whether sent or received on personal email accounts. It also seeks transcripts of interviews recorded as part of the state’s investigation.

Fallin says in a response filed in the case that she can do her job “more efficiently” because she and key members of her staff communicate using their private email addresses. However, the public has no need to know what those email addresses are and copies of the emails should wind up on the state’s server anyway, the governor’s attorneys claim.

They say they have a dual system in which emails are sent to both personal and state email addresses, enabling the state server to preserve any public records. However it’s not clear from the records the state has produced whether that is always true.

Fallin’s response sidesteps the issue of whether her business-related personal email is preserved, archived and searched when responding to open records requests. She focuses instead on opposing release of her personal email address.

“The public knowledge of (Hillary) Clinton’s personal email address did absolutely nothing to protect the public’s interest in archiving and accessing Clinton’s emails,” states a motion recently filed by attorneys for Fallin.

“In stark contrast, Governor Fallin, and members of her staff, utilize non-state email address, on occasion, to expedite the receipt of information and more efficiently perform her duties as the Chief Executive of this state.”

For now, let’s set aside the fact that it makes no sense to claim using a personal email address is somehow more efficient for doing state business than using the state’s email system. Unless the state is using a dial-up modem.

Some background is in order.

This legal saga has been dragging on since I first requested these records 2 years, 6 months and 22 days ago. That adds up to 937 days of delay.

I filed a second request with DPS in September 2014 for the interview transcripts, which DPS partially replied to six months later. The agency continues to resist making public large portions of its interviews with state officials and witnesses.

I witnessed Lockett’s execution on April 29, 2014, during which an inexperienced doctor using needles that were the wrong size improperly inserted an IV. The execution was halted after Lockett spent about several minutes writhing and mumbling and he died 43 minutes after it began.

Regardless of how you feel about the death penalty, Oklahoma’s inability to get the process right has been embarrassing for the state.

Part of the media’s job in these cases is to uncover what went wrong and provide that information to citizens and policy makers so hopefully it doesn’t keep happening. But the breakdowns have continued, with DOC using the wrong drug during one execution and nearly doing so again when preparing to execute Richard Glossip on Sept. 30, 2015.

A state grand jury investigation found that the failures weren’t all accidental.

The grand jury report said the actions of Fallin’s general counsel, Steve Mullins, were “unacceptable” to “so flippantly and recklessly disregard the written Protocol and the rights of Richard Glossip.”

Mullins resigned during the fallout, as did DOC Director Robert Patton and prison warden Anita Trammell, who oversaw Lockett’s execution. For the second time since 2014, executions have been halted while the state rewrites its death penalty protocol.

The latest status report by Attorney General Scott Pruitt shows that Glossip and five other men have exhausted their appeals but the state is not ready to proceed with their executions.

Department of Corrections Director Robert Patton speaks briefly about the stay of execution issued for Richard Glossip after it was discovered the state didn't have the correct drug. SHANE BEVEL/The Frontier

Department of Corrections Director Robert Patton speaks briefly about the stay of execution issued for Richard Glossip after it was discovered the state didn’t have the correct drug.
SHANE BEVEL/The Frontier

Despite the obvious role of transparency in restoring public confidence, Fallin and DPS have fought to prevent public access to records that would shed light on the state’s deeply flawed death penalty process.

The Open Records Act requires “prompt and reasonable response” but Fallin’s attorneys had argued that judges have no right to intervene until the request is denied.

After a judge ruled that the governor’s delayed response was the same as a records denial, Fallin’s attorneys sought and received the judge’s recusal. In October 2015, Fallin’s office released more than 40,000 pages of records related to the execution, many of which were duplicate records and many with heavy redactions.

Cary Aspinwall — my former reporting partner at the World and The Frontier — and I pored over these records and noticed that the governor’s email address was often redacted, but only when it appeared to be a personal email address.

In an August 2014 email to Aspinwall, Fallin’s spokesman, Alex Weintz, wrote that “the governor has two email addresses: a ‘dot gov’ address and a personal email address.”

“Most of her emails are from the personal email address,” Weintz wrote. “Those emails that are related to official business on either account are subject to the Open Records Act.”

A 2009 Oklahoma attorney general opinion and numerous state and federal court decisions have made it clear that “an agency cannot shield its records from search or disclosure” by storing them in a private email account, as one federal court ruling concluded.

As part of our lawsuit, Fallin was asked to describe her efforts to retrieve “public records stored on unofficial or private email accounts or systems.”

Her answer: “If there are responsive emails/records from private email accounts contained within the records on the OMES (state) server, those responsive emails are produced in open records request responses, unless those emails are withheld due to privilege(s) or another exception to the Open Records Act.”

Gov. Mary Fallin says she uses personal email for state business because it's more efficient at times. Photo courtesy NewsOn6

Gov. Mary Fallin says in a court filing that she uses personal email for state business because it’s more efficient at times. Photo courtesy NewsOn6

That lawyered answer doesn’t address what happens if emails subject to the Open Records Act never get to the state’s system because they aren’t sent to officials with state email addresses who were included in the original request. (To avoid excessive agency disruption, reporters sometimes agree to limit the number of officials whose emails are included in such requests, as we did in this case.)

Records produced in the suit show that at least two other top officials who worked for Fallin during the time in question, Mullins and Weintz, used personal email addresses for government business also.

If Fallin, Mullins and Weintz didn’t search their private email accounts, any emails they sent or received on those accounts that were supposed to be provided by law wouldn’t be included in the state’s response. And apparently, the governor’s office has no policy requiring such a search.

“The failure to conduct a search of non-governmental email accounts violates the governor’s obligations under the ORA,” the plaintiffs’ motion states.

The motion seeks an order from District Judge Bryan Dixon, who is presiding over the case, directing the governor to search for and produce email on non-governmental servers responsive to our requests.

Representing the plaintiffs in the lawsuit are attorney Bob Nelon, of the Hall Estill law firm in Oklahoma City, and attorneys Katie Townsend and Adam Marshall with Reporters Committee for the Freedom of the Press.

In a response filed Nov. 14, attorneys for Fallin claim that “release of private email addresses of governor’s staff … is a clearly unwarranted invasion of personal privacy.”

(The Open Records Act does not specify personal email addresses in the list of identifiers that state employees may withhold from the public.)

The response states that Fallin has never denied that emails, if sent from a private address and related to official business, are subject to the Open Records Act.

An attorney representing the governor, Jennifer Chance, claims in the latest filing that she has searched Fallin’s private email address and found no relevant records. Chance’s statement did not address emails for Mullins and Weintz or list any emails withheld.

The governor and her staff use personal email “after hours, when staff has limited or no access to the state email server, when it is necessary for (the) governor’s staff to handle state business,” her response states.

However it’s unclear why the governor and her top staff members would lack access to their state email “after hours.”

The records produced so far include an email written on a Sunday by Weintz from his official state email account and emails to and from various officials on their state email accounts on a Saturday (Sept. 3) after the Pawnee earthquake struck.

Meanwhile, one of those emails sent after the earthquake, concerning emergency response and building safety, was sent to Fallin at what appeared to be two personal email addresses.

The state Office of Management and Enterprise Services handles IT services for state employees. Its website includes a link to a web-based version of Microsoft Outlook, which allows state employees to log in from anywhere with a web browser.

Additionally, if the governor is still using the email address for official business, that raises questions about how secure her email is.

The domain is now part of the AT&T email system hosted by Yahoo. Some users have found themselves locked out of their accounts due to the changing nature of the corporate relationship.

Additionally, hackers have targeted the email service, among others. In May, Reuters reported that about 40 million Yahoo accounts were among 270 million stolen email accounts being traded in Russia’s underworld.