IN THE DISTRICT COURT OF OKLAHOMA COUNTY STATE OF OKLAHOMA ZIVA BRANSTETTER and BH Media Group Inc. d/b/a TULSA WORLD, Plaintiffs, v. MARY her official capacity as GOVERNOR OF THE STATE OF MICHAEL C. THOMPSON, in his official capacity as COMMISSIONER OF THE OKLAHOMA DEPARTMENT OF PUBLIC SAFETY, Defendants. FILED IN DISTRICT COURT OKLAHOMA COUNTY OCT 2 6 2016 RICK WARREN COURT CLERK 26 Case No. ndge Bryan Dixon MOTION TO COMPEL THE GOVERNOR TO SEARCH FOR AND PRODUCE EMAIL RECORDS MAINTAINED ON NON-GOVERNMENTAL EMAIL ACCOUNTS SERVERS THAT ARE RESPONSIVE TO OPEN RECORDS REQUEST Dated: October 26, 2016 Robert D. Nelon Hall Estill Hardwick Gable Golden Nelson Chase Tower, Suite 2900 100 N. Broadway Oklahoma City, OK 73102 405.553.2805 (Telephone) 405.553.2855 (Facsimile) bnelon@hallestill.com Katie Townsend (Pro Hoe Vice) The Reporters Committee for Freedom of the Press 115615th St. NW Washington, DC 20005 202.795.9300 (Telephone) 202.795.9310 (Facsimile) ktownsend@refp.org Counsel for Plainti?fs TABLE OF CONTENTS TABLE OF CONTENTS i TABLE OF AUTHORITIES ii INTRODUCTION I BACKGROUND FACTS AND PROCEDURAL HISTORY 2 ARGUMENT 3 I. The Governor?s Of?ce failed to search for or release records stored on non?governmental email accounts or servers. 3 CONCLUSION 9 TABLE OF AUTHORITIES Cases Bradford v. Dir, Employment Sec. Dep 83 Ark. App. 332, 128 20 (2003) 4 Competitive Enter. Inst. v. Of?ce ofSci. Tech. Policy, 827 F.3d 145 (DC. Cir. 201.6) 4 Mollick v. Twp. of Worcester, 32 A.3d 859 (Pa. Comm. Ct. 2011) 4 O?Neill v. City ofShoreline, 170 Wash. 2d 138, 240 P.3d 1149 (2010 4 Statutes Okla. Stat. tit. 12, 2008 6 Okla. Stat. tit. 51, 24A.3 l, 3 Okla. Stat. tit. 51, 24A.5 3, 8 Okla. Stat. tit. 51, etseq 1 Other Authorities 2001 OK AG 46 3 2009 OK AG 12 3, 4, 8 Dustin Racioppi, Christie ?5 personal email must be searched, judge rules, Northlerseycom (Sep. 9, 2016), archived at 5 Plaintiffs Ziva BranStetter (?Branstetter?) and BH Media Group Inc. d/b/a Tulsa World (?Tulsa World") (collectively, ?Plaintiffs?) respectfully submit this motion for an order compelling Defendant Mary Fallin, in her of?cial capacity as Governor of the State of Oklahoma, (??Fallin? or the ?Governor?) to search for and release all email records responsive to Plaintiffs? May 1, 2014 request under the Oklahoma Open Records Act, Okla. Stat. tit. 51, et' seq. that are stored on nonmgovernmental servers or in nonmgovernmental email but not limited to all responsive emails sent to or from aweintz@gmail.com, and Steve Mullins?s personal email account. In support of their Motion, Plaintiffs state the following: INTRODUCTION Under the ORA, public records are not defined by their format, location, or method of transmission, but rather by their content and, speci?cally, their relationship to the public?s business. ORA 24A.3. Plaintiffs? May 1, 2014 ORA request to the Governor?s Of?ce expressly sought email records concerning the State?s executions of Clayton Lockett and Charles Warner regardless of Whether those emails were located ?on a personal email account or state email First Am. Pet. ll 23, Ex. A (?May 1 ORA Request?) (emphasis added). Based on the records released to Plaintiffs in response to their May 1 ORA Request, as well as the Governor?s responses to limited discovery in this matter, it is clear that (1) Governor Fallin and at least two members of her staff have used now??governmental email accounts to conduct public business and (2) that the Governor?s Office did not search non_governmental email accounts or servers for records responsive to Plaintiffs? May 1 Request. The Governor?s failure to search for and release those email records violates the ORA. Accordingly, Plaintiffs respectfully request that this Court order the Office of the Governor to conduct a search for, and to release to Plaintiffs, all email. records responsive to Plaintiffs? May 1 ORA Request that are maintained on nonmgovernmental email accounts or servers.1 BACKGROUND FACTS AND PROCEDURAL HISTORY On May 1, 2014, almost two and a half years ago, Plaintiffs submitted an ORA request to the Governor?s Office for public records, including emails, relating to the executions of Clayton Lockett and Charles Warner. First Am. Pet. ii 23 Ex. A. Branstetter agreed to limit the request to emails between certain persons within the Governor?s Office, and specifically stated that her request applied to all such emails, regardless of whether they were located ?on a personal email account or state email Id. (emphasis added). More than seven months later the Governor?s Of?ce had yet to produce any records in response to Plaintiffs? request. Id. at '11 27. On December 22, 2014, Plaintiffs filed the abovew captioned lawsuit. Id. On October 8, 2015, approximately seventeen months after the May 1 ORA Request was submitted, the Governor?s Office released several thousand pages of records, many in heavily redacted form, purportedly in response to Plaintiffs? request. Id. at {i 28. Following limited written discovery, Plaintiffs filed a motion for leave to ?le an amended petition, which was granted by the Court on April 28, 2016. Plaintiffs? Amended Petition was filed on May 2, 2016. Governor Fallin filed an Answer to Plaintiffs? Amended Petition on August 30, 2016, and ?led an Amended Answer on September 19, 2016. 1 This motion is being submitted concurrently with Plaintiffs? separate motion requesting that the Court conduct an in camera review to determine the propriety of Defendants? withholding of certain public records in whole or in part in response to the three ORA requests at issue in this case. By these two motions, Plaintiffs seek to resolve outstanding issues concerning the records released to Plaintiffs in response to those ORA requests in advance of any evidentiary hearing on Plaintiffs? allegations that Defendants failed to provide Plaintiffs with ?prompt, reasonable access? to requested records in violation of the ORA. ARGUMENT I. The Governor?s Of?ce failed to search for or release records stored on new governmental email accounts or servers. The mandate is explicit: ?5111 records of public bodies and public officials shall be open to any person? for inspection or copying. ORA 24A.5 (emphasis added). ?Record? is de?ned broadly in the statute to include any material, regardless of physical form or characteristic, created by, received by, under the authority of, or coming into the custody, control or possession of public of?cials, public bodies, or their representatives in connection with the transaction of public business, the expenditure of public funds or the administering of public property. ORA 24A.3. Emails that meet the de?nition of a record must be produced in response to an ORA request, unless they are speci?cally exempt. See id; 2001 OK AG 46. As?the statutory language makes clear, the method by which emails are drafted, transmitted, or stored has no bearing on whether they are ?records? subject to the ORA. And both the Oklahoma Attorney General and courts from jurisdictions around the nation have concluded that government of?cials cannot circumvent public records laws by using nonm governmental servers, email accounts, cellphones, or the like. In 2009, the Oklahoma Attorney General issued an opinion explaining that the broad de?nition of ?record? in Section 25A.3 ?makes no distinction based on who owns or pays for a communication device and the services associated with it; rather, the ORA concentrates on who creates, receives, controls, or possesses a 2009 OK AG 12. Accordingly, ?a communication that meets the definition of a record under the ORA is subject to disclosure regardless of whether it is created or received on a publicly or privately owned personal electronic communication device, unless some provision of law allows it to be kept confidential.? Id. To determine otherwise, as the Attorney General noted, ?would allow public officials and employees to circumvent the open records laws simply by using privately owned personal electronic communication devices to conduct public business.? Id. Courts at both the federal and state level have come to the same conclusion. For example, the US. Court of Appeals for the DC. Circuit recently held that ?an agency cannot shield its records from search or disclosure under [the federal Freedom of Information Act] by the expedient of storing them in a private email account controlled by the agency Competitive Enter. Inst. v. Office of Sci. Tech. Policy, 827 F.3d 145, 146 (DC. Cir. 2016). In that case, an agency argued that it did not need to search an agency head?s non~governmental email account in response to a records request because it was ?beyond the reach of Id. at 147. That position that was soundly rejected by the court, which held that the agency head controls what would otherwise be an agency record, then it is still an agency record and still must be searched or produced.? Id. at 149. State courts have likewise determined that using nonmgovemmental accounts or hardware for electronic communications does not place those communications beyond the reach of public records laws. See, O?Neill v. City ofShoreline, 170 Wash. 2d 138, 150, 240 P.3d 1149, 1155 (2010) (holding a search of public of?cial?s home computer for email records related to city business was necessary to comply with a records request); Bradford 12. Dir, Employment Sec. Dep?t, 83 Ark. App. 332, 345, 128 20, 28 (2003); (?The creation of a record of communications about the public?s business is no less subject to the public?s access because it was transmitted over a private communications medium than it is when generated as a result of having been transmitted over a publicly controlled Mollick v. Twp. of Worcester, 32 A.3d 859, 872~73 (Pa. Comm. Ct. 2011) (holding emails that meet the definition of ?record? under the public records law are ?records? regardless of whether they are stored on public employees? ?personal computers or in their personal email indeed, just weeks ago, a trial court in New Jersey ruled that Governor Chris Christie?s non?governmental email accounts must be searched to comply with a public records request from a local reporter or, alternatively, that the state must certify that those accounts have already been searched and that no responsive records were located. See Dustin Racioppi, Christie ?5 personal email must be searched, judge rules, NorthJersey.com (Sep. 9, 2016), archived at XKWP. In that case, Judge Jacobson also ordered a search of nonmgovernmental email accounts of employees of Governor Christie?s administration. 1d. Here, Plaintiffs speci?cally requested emails from the Governor regarding the executions of Clayton Lockett and Charles Warner residing on both of?cial governmental and non~ governmental ?personal?) email accounts. First Am. Petclear, there is no doubt that Governor Fallin uses a non?governmental email account to conduct the public?s business. In an August, 2014 email from Alex Weintz (the Governor?s former Communications Director) to Steve Mullins (the Governor?s former General Counsel), Denise Northrup (the Governor?s Chief of Staff) and Audrey Rockwell (a secretary/paralegal in the Governor?s Of?ce), Mr. Weintz explained that: The governor has two email addresses: a ?dot gov? email address and a personal email address. Most of her emails are from the personal email address. Those emails that are related to of?cial business on either account are subject to the Open Records act.2 (emphasis added). A true and correct copy of that email as produced to Plaintiffs is attached as Exhibit A. Based on a February, 2013 email from Governor Fallin to Mr. Weintz, Ms. Northrup, 2 In a separate email that was sent to Plaintiff Branstetter and her then?Tulsa World colleague Cary Aspinwall, Mr. Weintz con?rmed that Governor Fallin uses a personal email address and stated: ?We do not believe an email is exempt from the Open Records act simply because it was sent on a private account.? Supplemental RFP #10, p. 320. and Mr. Mullins produced to Plaintiffs in discovery, that personal email address appears to be A true and correct copy of the February 2013 email as produced to Plaintiffs by the Governor?s Office is attached as Exhibit B. Examples of Governor Fallin?s use of to conduct public business are numerous. As the Governor admits, First Am. Ans. of Governor Mary Fallin ii 26, on June 24, 2014, Alex Gerszewski, then?Deputy Press Secretary for the Governor, sent to the Governor at her email address a copy of a Tulsa World article written by Plaintiff Branstetter and Ms. Aspinwall regarding the State?s failure to conduct autopsies on the majority of inmates executed since 1990. A true and correct copy of that email as produced to Plaintiffs is attached as Exhibit C.3 The Governor also used the same nonwgovernmental email account to communicate with her staff about news articles critical of her handling of public issues. See Ex. B. Moreover, while the Governor?s Office has redacted, in a clear effort to conceal, an email address associated with Governor Fallin in many of the records released in response to Plaintiffs? May 1 ORA Request, it is clear that the email address is a non?- governmental (129., not a ?.gov? email address) used by the Governor. And, based on a comparison of one such redaction with an unredacted example of Governor Fallin?s use of the email address, which is reproduced immediately below, Plaintiffs believe it is highly likely that the redactions are of the same non?governmental email address. True and correct copies of those emails, as produced to Plaintiffs, are attached as Exhibits and D: 3 In her First Amended Answer, the Governor takes the novel?wand evasive?approach of attempting to ?neither admit[] nor den[y] the allegations in 111179, 80? concerning her use of a mud-governmental email account. Under the Oklahoma Rules of Civil Procedure, a party is required to admit or deny an averment, or state that they are without knowledge or information sufficient to form a belief as to its truth. Okla. Stat. tit. 12, Allegations are deemed admitted when not denied in a responsive pleading. Id. (Reproduced from Exhibit B) . (Reproduced from Exhibit D) This redacted email address is reflected on a number of public records released by the Governor?s Of?ce in response to Plaintiffs? May 1, 2014 ORA Request.4 The Governor has also used a nongovernmental email address that begins with while conducting other government business; that address has appeared in public records produced to Plaintiff Branstetter in response to a different ORA requests. A true and correct copy of one such email, as produced by the Governor?s Of?ce, is attached as Exhibit E. It is not clear whether the redacted email address it contains is or another account used by the Governor. In addition to the Governor?s unof?cial account(s), according to emails produced to Plaintiffs by the Governor?s Of?ce it appears that at least two other employees of the Gvoernor?s Of?ceer. Weintz and Mr. Mullins?also used non-governmental email accounts to conduct public business. Mr. Weintz used aweintz@gmail.com. True and correct copies of emails re?ecting his use of that email account, as produced to Plaintiffs, are attached as Exhibit F. The ?rst part of Mr. Mullins?s non?governmental email account, is ?mullins[redacted]? which appears in the records produced in response to Plaintiffs? ORA request to the Governor?s Of?ce and is con?rmed by its Redaction Log. True and correct copies of emails re?ecting MI. Mullin?s 4 Because non~govemmental email addresses associated with Governor Fallin are redacted in records produced to Plaintiffs in response to their May 1 ORA Request, it is impossible for Plaintiffs to determine conclusively whether she uses other non?governmental email accounts, in addition to to conduct public business. use of a nonwgovernmental email account and the corresponding page in the Governor?s privilege log are attached, collectively, as Exhibit G. Plaintiffs are only aware of the Governor?s, Mr. Weintz?s, and Mr. Mullin?s use of nonm governmental email accounts because a handful of emails reflecting those unof?cial email accounts were sent from or received by someone else in the Governor?s Office who was using an 3 of?cial gov? email address. See, eg, EX. C. Accordingly, those emails were captured by the Governor?s Of?ce when it searched the official email server for the Governor?s Of?ce for records responsive to Plaintiffs? May 1 ORA Request. However, the Governor?s Of?ce did not conduct a search of nonwgovernmental email accounts or servers used by the Governor and her staff for records responsive to Plaintiffs? May 1, 2014 ORA Request. In response to Plaintiffs? First Set of Interrogatories No. 15, which asked for details regarding any efforts to search for and retrieve public records stored on unof?cial or private email accounts or systems, Governor Fallin responded that only the of?cial email server for the Governor is O?ice was searched. A true and correct of Governor Failin?s response to that interrogatory is attached as Exhibit H. Thus, responsive email records between Governor Fallin and other members of her staff using only non-governmental email accounts or servers, or any other email accounts that would not be captured on the of?cial email server used by the Governor?s Office, were not searched for, and were not released to Plaintiffs. The failure to conduct a search of nonwgovernmental email accounts violates the Governor?s obligations under the ORA. Accordingly, it is necessary for the Governor?s Office to conduct an additional search of non?governmental email accounts and/or servers used by the Governor and her staff in order to comply with the Governor?s Of?ce?s obligations under the ORA. See ORA 2009 OK AG 12. CONCLUSION For the reasons set forth herein, Plaintiffs respectfully request that the Court order the Governor?s Of?ce to conduct a search of all nonwgovernmental email accounts maintained by Governor Fallirt and any member of her current or former staff, including but not limited to aweintz@gmail.com, and Steve Mullins?s personal email account, that are likely to have records responsive to Plaintiffs? May 1, 2014 ORA Request. Dated: October 26, 2016 Respectfully submitted2 By: Robert D. Nelon Hall Estill Hardwick Gable Golden Nelson Chase Tower, Suite 2900 100 N. Broadway Oklahoma City, OK. 73102 405.553.2805 (Telephone) 405.553.2855 (Facsimile) bnelon@hallestill.com Katie Townsend (Pro Hac Vice) The Reporters Committee for Freedom of the Press 115615th St. NW Washington, DC 20005 202.795.9300 (Telephone) 202.795.9310 (Facsimile) ktowrlsend@rcfp.org Counsel for Plainti?s CERTIFICATE OF SERVICE This is to certify that on October 26, 2016 a true and correct copy of the foregoing instrument was transmitted electronically and mailed, postage prepaid, to the following counsel of record: Jennifer E. Chance, OBA #19320 Steven J. Krise, OBA #17948 Deputy General Counsel General Counsel Of?ce of the Governor Mary allin Kim M. Rytter, OBA #20825 2300 N. Lincoln Blvd, Room 21.2 Assistant General Counsel Oklahoma City, OK 73105 Department of Public Safety 3600 Martin Luther King Ave. Oklahoma City, OK 73111 1402676199990401820 10 EXHIBIT A From: Alex Weing To: ?tevg Mgillns; Denise Northrup; Audrey Rogkweli Subject: please review: Followup re: emails Date: Wednesday, August 13, 2014 4:38:45 PM Can you guys see below? Cary asking about use of personal emails let me know if this is an ok response: As you can see by the document set on this issue (that includes over 50,000 pages of emails) the governor's staff uses official emaiis for of?cial business. Occasionally in that document set, you wiil see a staffer use a personal email address. Usually that is done by accident, or because someone has their personal phone with them but left their blackberry at work, or some other circumstance like that. We consider all those emaiis to be subject to the Open Records act, because they are related to official business. We do not believe an email is exempt from the Open Records act simpiy because it was sent on a private account. 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. Those emails that are related to of?cial business on either account are subject to the Open Records act. However, the governor does the vast majority of her business in person, which is why you see very few emails from her. That, by the way, is one of the problems with stories that have been generated by these records (as I see it). You are telling your readers ?this is why the governor made her medicaid decision." But what you are really seeing is the emails sent between the policy director, chief of staff, and communications director debating what advice to give the governor. Policy decisions are made by the governor, in consultation with her senior advisers, and the vast majority of that work is done in person. From: Aspinwall, Cary Sent: Wednesday, August 13, 2014 3:29 PM To: Alex Weintz Cc: Branstetter, Ziva Subject: Follow-up re: emails Alex? Ziva forwarded me your response to our earlier questions. I have a followup based on the documents as well as your answers. It appears, in the cases where email addresses were redacted, that the Governor and several of her staff members are regularly using personai emaii accounts to discuss/conduct state business. 1) How often is this occurring? Why are they using personal email instead of their official state email addresses? Is this an attempt to avoid disclosure of these communications under the 2) When news media and others make Open Records requests, what assurances do we have that any pertinent emails from these personal addresses are aiso being inciuded in the documents provided? in other states, it has been determined that personal emails do fall under the laws governing open records if they are discussing public business. Is the governor?s office taking care to preserve those communications as required by state law? 3) At least 26 states view the use of private emails for government business as clearly public records, the reSt have no clear rules in place. There is no exemption listed in the Oklahoma ORA for personal email communications. In fact, a 2001 Attorney General's Opinion for the state deemed any emails discussing ?the transaction of public business' as public records under Okiahoma law. Is it the Governor's practice then to include all relevant personal emails discussing any public business when they are requested under the 4) We've seen thousands of records released by your of?ce in response to various requests by news media. Very rarely do those records include emails from the Governor's official email address. Is she Supplemental RFP #9 158 of 313 EXHIBIT From: Alex Weiniz To: W: Cc: Qenise gteve Mgilin; Subject: Re: Open records Date: Monday, February 11, 2013 9:15:27 PM I've already emaiied his editors and hopefuily they agree not to use that particular turn of phrase again. And we may want to send them some of the docs we have already gone through (even though they say they dont want them) so they cant write again that we are refusing to release anything. The thing we need to realize and accept is that zeke is being directed to write these articles by his editors. They agree with him on this issue and they are every bit as problematic as zeke. You are not going to get a fair shake on this issue, period. Originai Message From: Mary Sent: Monday, February 11, 2013 08:22 PM To: Aiex Weintz Cc: Denise Northrup; Steve Mullins Subject: Re: Open records That is why we need to confront zeke and hold him accountable for telling the truth. Give him what we got with an in writing certi?ed letter telling him that we are giving what we have now even though he has personally told us he didn't want Any info until it was in total. Copy the editorial board with copies if his emails telling us that uniess we have All info at once He wouidn't take it. That way if he says that again, we can prove he is being less than Mary Faliin On Feb 10, 2013, at 11:00 AM, Alex Weintz wrote: The oak wrote we have "failed to turn over a single document" which is ridiculous since we have asked them if they want what we have ready now constituent correspondence etc and they have refused. I pointed that out to their editors. Bottom line is we will never get a fair shake from the media on this issue. Supplemental RFP #8 Page 2 of 4 EXHIBIT From: Alumni: To: Mme-mist Subject: Re: Today"s Tulsa Worid Articles Date: Tuesday, June 24, 2014 10:09: 17 AM Attachments: imace004.onq innoeGOSnno, 'From: Alex Gerszewski Sent: Tuesday, June 24 2014 10:07 AM To: Marv Fawn CC: Alex Weintz Subject: Today's Tulsa World Articles Governor, Below are today?s Tulsa World articles. Twill send the articles from the weekend and Monday in a separate email. State fails to autopsy most inmates Editor's Note Editors Note: This story is the third in a three?part series examining problems with Oklahoma's lethal injection process. The state has conducted autopsies on less than half of the inmates executed in Oklahoma since 1990 and, in many cases, does not perform tests that could show Whether inmates were awake and paralyzed as painful drugs ?owed into their veins, a Tulsa World investigation has found Because state records are inconsistent and blood is sometimes drawn long after inmates die, it is difficult to say how many inmates were conscious when they received potassium chloride, the third drug in Oklahoma?s lethal injection process. Medical experts, judges and attorneys for the state agree that potassium chloride is xc iati parses. on April 29 has sparked a nationwide discussion . about the death penalty and new scrutiny in how Oklahoma and other states put people to death. The World created a database using 109 medical examiner?s reports from Oklahoma inmates executed since 1990, including the levels of anesthetic in their blood following death where available. Experts in anesthesiology and clinical pharmacology reviewed the data to spot issues and problem cases. Among the World?s ?ndings: The Oklahoma State Medical Examiner?s of?ce conducted full autopsies on all executed 10m7/2015 Response to ORR re: Lethal Injection] Inmates C. Lockett.C. Warner. R. Glossip,G. Allen. B. Davis Page 33152 of 41697 EXHIBIT Michael Teague Michael McNutt . Saturday, September 03, 2016 8:53 AM Michael Teague RE: Earthquake From: Sent: To: Subject: Thanks. Will post on soda! media Michael McNutt Communications Director Oklahoma Governor Mary Fallin (405) 52288778 (of?ce) (405) 464~9175 (cell) michael.anuttgazgovokgov From: Michael Teague Sent: Saturday, September 03, 2016 8:48 AM To: Denise Northrup Cc: Michael McNutt Subject: Re: Earthquake Michael - Just talked to Skinner. OCC staff is at the of?ce reviewing all On Sep 3, 2016, at 0824, Denise Northrup wrote: Michael I think we can update social media with Makes the most sense to me right now Sent from my iPhone Begin forwarded message: From: Albert Ashwood sposal wells in the vicinity of the quake. this stuff and occ's Date: September 3, 2016 at 8:14:24 AM CDT - To: wages?, Denise Northrup Subject: Earthquake ?7 We have pcrso checking bridge safety. . Albert Ashivood 7 ?We; noel en route to Pawnee to assess damages and needs. ODOT and we're structural engineers to assess building EXHIBIT From: Filer Weirtz To: Steve Mdlins: Denise Northrup: JenniFer Charm Subject: Fw: STATEMENT cm EEGJTICN Date: Tuesday, April 2?3, 28 14 :02 PM Attachments: jrnaoeDD 2.13m _imaqe003.pm This look ok? From Michael MtNutt Sent: Tuesday, A ril 29 ?2014 01:53 PM To: marrfaliin Mary Fallin Cc: Alex Weintz; aweintz@gmai .com {aweinlzt?lgmai com?? Subject: STATEMENT ON EXECUTION Governor, This is a suggested statement on tonight? 5 situation. Please review as soon as you can. Thanks. have asked the Department of Corrections to issue a full revi ear of Oklahoma execution procedures to determine what happened and why during this evening attempted execution of Clayton Derrell Lockett said Fallin. have issued an executive order delaying the execution of Charles Frederick Warner for 14 days to allow time for a full evaluation.? Michael MoNutt Press Seaetary Office or Governor Mar}.F Fellin (405} 522-8878 phone (405}! 464-9175 - cell micheel . ok . gov DISCLAIMER Any and all communications sent to and received from this a- mail address may be subject to the Oklahoma Open Heetings and Open Records act. Accordingly, please be advised that should your conmunications be responsive to an Open Records Reque.st and not subject to any privilege, they may he turned over to a third party. This disclaimer does not waive any right or privilege that may he claimed by the state of Oklahoma, the Office of the Governor, or the sender of this message. 10mrr2915 Response to ORR re: Lethal Injection! inmates C. Lockett,C. Werner, R. Glued pp. ?ller], B. Davis Page of 4189? the additional $40 million is needed to do the job. More important, we believe in consulting the public before a huge increase in state debt. Under the state Constitution, general obligation bondis sues must be approved by the people. Sow?called "moral obligati on" bonds, a fairly modern invention, wire around the Constitution?s popular vote reduircment? by only strongly suggesting that future legislatures will live up to promised bond payments (with the potential of permanently wrecking the state's ere dit, if they don't). We have no taste for moral obligation bonds. If the state is going to increase its debt, the people should agree on'the bargain. They pay the bill. They should make the choice. The odd politics of the Capitol may be brewing up another equally good, equally almost acei dental alternative. The leader of House Democrats suggested that his caucus could change their vote on the $160 million bond issue, if a proposed state income tare rate cut is killed. Both House and Senate have approved the tax out plan, which is awaiting Gov. Mary Pallin's onsi derati on. We have no taste for the income tan cut at this point. It would talto away needed revenue when the state is strapped for the cash to take care of essential services such as schools, roads and public safety. Our preferencewould be to have no morm obligation bondissue and no income tax rate cut. Oldahorn a's odd politics haven't created a scenario where that eouldbe the result ~?but st'ranger things have happened. title}: Gets: 'ewslzi Deputy Press Secretary Of?ce of Governor Isl-31y Fallin Phone cell {4135115524319 $31 ea. Gerscewskif?lao v. ok. on DISCLAIMER Any and all comrrognic atioris sent to and received from this e?rnail address may be subject to the Qp en Meetings and Open Records fact. Accordingly, please be advised that should your cornn'ninications be ?res nonsive to an Open Records Request and not subject to any privilege, they may be mrnedover to a third party. This reclaimer does not waive any right or privilege that may be cl aim ed by the state of Old: min a the of the Governor, or the sender of this message. From ales Weinlz [manta:aweiot?gmailmom] Sent; Thursday, April 24; 21314 9:14 AM To: Alex Gerszevrsk'i Subject: Re: 4924314 Daily Home Clips Can?u send these ulsa World -- Path to executions cleared as Oklahoma Supreme Court reverseslow er court's ruling - . all sat ?ass. omfn e'wsl?court sfpath -to -es: ecutions ?t:l cared?as old ahoma ~supr eme - 5d08ol3e?2c4?59ae-a325 3364b STaddl .html Tulsa World @KSH?ong fund raises $4.6 million for May 2013 tornado 'victim's' long -term needs saw orld. omlnewsl'loeallolzs trons ?fund~rai ses ?million foremay ?tornado- Responm to ORR re: Lethal injection! Inmates C. Lockett?. Warner. R. Slosei of}. ,ikllen. B. Davis Page 157?}? of 4159?." victims ?lono-te1111farticle_9e3b8852? 55b8? 58ae-a66e- e2ff83 8300111111111 Tulsa World Oklahoma House delivers Gov Fallin much sought tax cut http: Comfnews/govemmentiok?lahoma- house? delive1s- gm, falhn- -n111ch? so11211t~ tax? cut/articlema2219270b- eae7? 5d98-9038 3f469b1866bc11tml Tulsa World Editorial: Odd state Capitol polities could lead to the right choice on Capito1 repahs income tax cut http: //.Wwwtulsawoald. com/ommoniedrtorlalsxed1tor1al to~the-r1 ght/art1ole36aab60?3- f6af- Sfdo- 9111b 27872801311146 111ml Sent from my iPad 011 Apr 24, 2014, at 7 :55 ANL Alex Gerszewski wrote: ulsa World Path to executions cleared as Oklahoma Supreme Court reverses .1 lower court's ruling ok'lahoma- supreme court- 1everses lowerlartiole 5d08e13e- 213411392112 a825? 711115? .1313]! Tulsa World OKStrong fund raises $4.6 million for May 2013 tornado Victims? long~tem1 needs htto: .tUISawmld com/news local/okstronmfund raises- million? forumav? tomado? Victuns long tem1!article 963118832? SShR-Sgae- a6ce e2ff8383cclf. 1111111 Tulsa Wo1'ld Oklahoma Ilouse deli've1s Gov Fallin 5 much sought tax cut http: lulsaworld gov? a2a9270h? eae7? Sd98 9c38~ 3146913186611cJ1tm1 Tulsa World Edito?al: Odd state Capitol politics could lead to the right choice on Capitol repairs, income tax cut http: tulsaworld. odd state? capitol- politics? could- lead- to the? rightJartiele 5621-2111663 f6af-5?fd6 9dlb? 27872801311146 101?07/2015 Response to ORR re: Lethal lnjeCtion.? Inmates C. Lockett,C. Warner, R. GlossipEG. Allen, B. Davis Page 15708 of 4169-7 EXHIBIT From: To: Elem Subject: RE: Cause No. 112, 741 Supreme Court Opinion - 2014 OK 34 Date: Wednesday, April 23,20147:3o:47 PM Oklahoma Supreme Court From: Alex Weintz Sent: Wednesda April 23, 2014 7:28 PM To: Subject: Re: Cause No. 112, 741 Supreme Court Opinion 2014 OK 34 And thats okla court or scotus making that ruling? I cant open these docs. From: Sent: Wednesday, April 23, 2014 07:11 PM To: Michael McNutt' Steve Mullins Denise Northrup; Jennifer Chance; Alex Weinu; Su ject: RE: CaUse No. 112, 741 Supreme Court Opinion - 2014 OK 34 It looks like they have 1) found the secrecey statute is constitutional, which reversed the trial court. (This is what DOC was appeahng). . . 2) found the internal operating procedures of DOC re: inmates (and execution protocol) not subject to rulemaking requirements of the APA, which af?rmed the trial court. (This is what the inmates appealed) 3) Dissolved stay for both inmates. Steve is. this what you're Seeing, as well? From: Sent: WedneSday, April 23, 2014 7:03 PM To: Michael McNutt? Steve Mullins; Denise Northrup; Jennifer Chance; Alex Weintz; mullin Subject: FW: Cause No. 112, 741 Supreme Court Opinion - 2014 OK 34 I've added Steve's personal so he can read them on his pc From: Michael McNutt Sent: Wednesday, April 23, 2014 6:54 PM To: Steve Mullins; Denise Northrup;? Jennifer Chance; Alex Weintz Subject: FW: Cause No. 112, 741 Supreme Court Opinion - 2014 OK 34 Supreme Court dissolves stay of execution for From: Engelbert, Polly Sent: Wednesday, April 23, 2014 6:associated press; Bryan Smith; Bryan Smith 2; Calvin Wright; DARIN DAVID Erin Boeckman; Brewer; Janelle Stecklein; Jerry Bohnen; Jim Hankins; journal recOrd; Parks, Judy; JUSTIN Marie Price; Matt Dinger; Michael McNutt; Nolan Clay; ok state; patrick Patrick B. McGuigan; Patrick B, McGuigan 2; Randy Ellis; RICK Scott Codper; Steve Mullins; STEVEN TRAVIS tulsa world Cc: Galloway, Terri Subject: FW: Cause No. 112, 741. Supreme Court Opinion - 2014 OK 34 From: Richie, Michael 1070772015 Response to ORR re: Lethal Injection/ Inmates C. LockettC; Wcirner, R. Glossip,G. Allen, B. Davis Page 15986 of 4.1697 See 51 0.5. 24A.7, 1999 OK AG 30, and 2001 0K AG 46 back end of Governor's 15654 private email See 22 0.5. - ok.gov Gov Staff email 15665 redacted See 22 0.5. - ok.gov Gov Staff email 15668 redacted See 22 0.5. ok.gov Gov Staff email redacted See 22 0.5. - 0k.gov Gov Staff email 15688 redacted See 22 0.5. ok.gov Gov Staff email 15906 redacted See 22 0.5. - ok.gov Gov Staff email redacted See 22 0.5. - ok.gov Gov Staff email 15988 redacted See 22 0.5. {0015(3) - ok.gov Gov Staff email redacted See 22 0.5. - ok.gov Gov Staff email redacted Steve Mullins private email fully redacted in error 51 0.5. 24A.7, 1999 0K AG 30, and 2001 0K AG 46) see p. 15986 See 22 0.5. - 0k.gov Gov Staff email redacted See 22 0.5. ok.gov Gov Staff email 17013 redacted See 22 0.5. - ok.gov Gov Staff email redacted Document dates are outside the scope of the Plaintiff's open record request of records 17121 March 1-pre50nt 20f5 EXHIBIT evidence, insofar as it requests information prior to the implementation of the current open records policy. The following is responsive to the Interrogatory under the current open records policy: See attached documents. 12. Identify the date on which the "email documentation pull" described in Paragraph 26 of the ROCKWELL AFFIDAVIT was sent to the Information Services Division of the Of?ce of Management Enterprise Services. RESPONSE: See Governor Fallin?s Response to Plaintiff?s Request for Production Number 13. Identify the date by which ?all. physical documentation regarding executions" had ?been gathered," as described in Paragraph 26 of the ROCKWELL AFFIDAVIT. RESPONSE: February 2015. 14. Identify the date by which "all physical documentation regarding executions" was "scanned in" as described in Paragraph 26 of the ROCKWELL AFFIDAVIT. RESPONSE: February 2015. 15. Describe in detail YOUR efforts to search for and retrieve PUBLIC RECORDS stored on unof?cial or private email accounts or systems, including but not limited to email sent or received from any non-?okgov? or non-?stateokns" email address?for the purposes of responding to the request for PUBLIC RECORDS that is at issue in this ACTION. RESPONSE: All electronic/email records are stored on the server operated by the Office of Management and Enterprise Services (OMES), which services the Office of the Governor. If there are responsive emails/records from private email accounts contained within the records on the OMES 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. Page 11 of 13