Judge in open records case recuses after request from Fallin’s office

The judge's removal delayed a hearing into allegations the state engaged in "egregious stonewalling" of discovery.

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A judge presiding over a lawsuit seeking records related to a botched execution has recused from the case after a request from Gov. Mary Fallin’s office.

Oklahoma County District Judge Patricia Parrish recused following a hearing Wednesday in the open records lawsuit brought by Ziva Branstetter, now editor-in-chief of The Frontier, and the Tulsa World.

The state requested that Parrish recuse due to her role in nominating two attorneys for an award more than 16 months ago. The request came shortly before a scheduled hearing in the case over allegations the state had failed to comply with discovery requests.

Branstetter, while enterprise editor at the World, requested emails and other records from the Department of Public Safety and Fallin’s office related to the April 29, 2014, botched execution of Clayton Lockett. The suit was filed in December 2014, with legal representation provided by Reporters Committee for the Freedom of the Press and attorney Robert Nelon of the Hall Estill law firm in Oklahoma City.

Though Parrish has presided over the case since it was filed almost a year ago, attorneys for Fallin did not request her removal until last week. They cited Parrish’s nomination of two Hall Estill attorneys for an award given by the Oklahoma County Bar Association in asking for her recusal.

The attorneys — Seth Day and Susanna Gattoni — received the Courageous Lawyer Award from the bar association in July 2014 for their representation of Lockett and death row inmate Charles Warner in challenging the state’s execution drug secrecy law.

Parrish was president of the Oklahoma County Bar Association at the time and had nominated the two for taking on an unpopular case pro bono.

Oklahoma County District Judge Patricia Parrish
Oklahoma County District Judge Patricia Parrish

She ruled in March 2014 that the state law forbidding release of information about the source of execution drugs was unconstitutional. That ruling was later overturned by the state Supreme Court.

Day and Gattoni worked for the same firm that employs Nelon but were not involved in the World’s open records lawsuit. Hall Estill employs more than 100 attorneys in Oklahoma, Arkansas and Tennessee, according to its website.

The award was presented to Day and Gattoni 16 months ago, well before the World’s Open Records lawsuit was filed. It’s unclear why the state’s lawyers failed to raise their concerns about Parrish until recently.

Fallin’s office and DPS had argued that the courts have no authority to intervene in an open records dispute until a request is denied. However, Parrish ruled in April that the state’s lengthy delay in providing records was, in effect, a denial.

The Supreme Court refused to grant a stay in the case after the state appealed that ruling, allowing discovery to move forward. On Dec. 11, Parrish was scheduled to hear a motion to compel discovery filed by the plaintiffs.

Attorney Jennifer Chance, representing Fallin, argued during a hearing last week that Parrish’s nomination of Day and Gattoni for an award presents an appearance of bias in the case. Chance said the state was not trying to find a judge it perceived to be more favorable.

Oklahoma County District Judge Thomas Prince has been assigned to the case.

In October — 17 months after the records request was filed — the state turned over more than 40,000 pages of records in the case but has withheld others.  Fallin’s office and DPS have refused to provide a “privilege log” citing the legal authority for withholding those records.

Many of the records released in October were copies of press releases and legal documents that were already public. Others were emails in which the governor’s staff discussed how to respond to media requests. In one email, a spokesman referred to three inmates awaiting execution as the “batting order.”

Nearly one in four people interviewed by the state as part of its investigation remain unidentified and state attorneys blacked out hundreds of sentences and dozens of pages in interview transcripts.

In one transcript, attorneys removed the name of an executive branch official who authorized prison officials to begin Lockett’s execution. Fallin was attending an Oklahoma City Thunder NBA playoff game that night and it’s unclear who gave the order in her place.

Several minutes after the execution began, Lockett began mumbling and writhing on the gurney and officials discovered problems with his IV. After Fallin told him “Do what you’ve gotta’ do, Steve,” her general counsel, Steve Mullins, gave an order to halt the execution. Lockett died 43 minutes after the execution began.

Some redactions may conceal the fact that what witnesses told investigators didn’t line up with what officials including Attorney General Scott Pruitt were saying publicly about the execution and events leading up to it. The prison’s former warden has testified in federal court that the attorney general’s office asked her to sign a false affidavit about events leading up to the execution.

The Open Records Act requires “prompt and reasonable response” to records requests. Fallin’s office has argued that the response complies with the law because it consistently follows “reasonable procedures” for all open records requests.

However, Fallin’s office has objected to discovery requests for records that would show how it came up with those procedures and applies them.

“According to the governor, those ‘procedures’ were developed and put in place in 2011 and 2012,” states the plaintiffs’ motion, which asks a judge to order the state to comply with discovery requests.

“Information concerning how those procedures were developed and/or changed, how they have been implemented and applied by the Governor’s office over time and how Plaintiffs’ ORA request was processed, particularly in comparison to other ORA requests … is directly and clearly ‘relevant to the subject matter’ of this dispute.”

The motion, which accuses the state of “egregious stonewalling,” claims Chance has missed multiple deadlines by which she had promised to respond to discovery disputes. Eventually, Chance “made clear that the Governor did not intend to address the majority of the deficiencies identified by Plaintiffs’ counsel,” the motion states.

In a response filed Oct. 16, Fallin’s office called the plaintiffs’ discovery requests “abusive and unreasonable.” The response states that discovery related to how the governor’s open records policy was developed and changed is not relevant.

“Plaintiffs are simply engaged in a fishing expedition and case law has made clear fishing expeditions are not permissible,” the filing states.

The lawsuit is one of several that have been filed against Fallin and the state alleging failure to comply with the Open Records Act.

In 2013, the ACLU sued over the governor’s failure to release emails and other records related to her decision not to create a healthcare exchange or expand Medicaid.

The most recent suit was filed Nov. 9 by the ACLU on behalf of two organizations that have each been waiting more than a year for Fallin’s office to fulfill their records requests.

In May 2014, the nursing home care advocacy group, A Perfect Cause, requested records related to nursing homes in the state. In July 2014, the Oklahoma Observer requested documents related to the executions of two Oklahoma inmates.

Gov. Fallin has received the Black Hole award  twice from Freedom of Information Oklahoma and the Golden Padlock award from Investigative Reporters and Editors. Both are given to officials and organizations who do the most to inhibit the public’s right to know what its government is doing.

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Ziva Branstetter

Editor in Chief / Staff Writer

Ziva maintains she was always too nosy to be anything other than a reporter. Though she's on a new adventure with The Frontier, she spent more than 25 years in the newspaper business, making politicians nervous and making sure readers got the truth. Contact: ziva@readfrontier.com or 918-520-0406.
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