If you are unaware of what the “Jones Day report” is, you’re not alone. Many Oklahomans are unaware that the University of Oklahoma hired the law firm Jones Day to investigate allegations that the university misreported financial information to U.S. News & World Report as well as allegations of sexual misconduct by then-President David Boren. The university would like to keep it that way, and the Oklahoma Supreme Court helped OU bury the report for good.

In 2019, the online news outlet NonDoc submitted an open records request for the reports. After OU denied the request, NonDoc brought a lawsuit pursuant to the Oklahoma Open Records Act. After years of litigation, the Oklahoma Supreme Court covered up the Jones Day Report for good.

The stated reason for keeping the Jones Day report in the dark was that the Court deemed it protected by the attorney-client privilege—or at  least a bloated and bastardized version of the privilege. The Court correctly recounted that the purpose of the privilege is “to encourage full and frank communication between attorneys and their clients.”

The idea of attorney-client privilege isn’t new but has been a staple of the Anglo-American legal tradition since before the American founding. It protects communications between a lawyer and client made for the purposes of securing legal advice. It is designed to foster full and frank discussions between attorneys and their clients.

But the privilege, as it’s applied to government clients, is less enshrined and subject to controversy. Oklahoma law exempts public bodies from exercising the privilege with certain exceptions, which I include below:

There is no privilege … [a]s to a communication between a public officer or agency and its attorney unless the communication concerns 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.

The Court’s majority, written by Justice Winchester, held the Jones Day report was subject to privilege despite the fact that the investigation was no longer pending. The Court opined that the key question is whether the investigation was pending at the time the communication was made—not when the request was made (when NonDoc made its request, the investigation had been over for years).

As addressed in NonDoc’s own article, the majority just completely forgot to address the second half of the above statute, which also requires 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.” Obviously, you cannot impair the ability of a public body to conduct a pending investigation if the investigation is not pending. The language of the statute, taken as a whole, also makes clear that “pending” is referring to the time of the request—not the time of the communication.

But if we were to assume this was a close case and “pending” could mean at the time of the communication or at the time of the request, why not err on the side of government transparency?

Make no mistake about it: this ruling allows any government agency, otherwise subject to the Open Records Act, to hire an attorney to investigate itself and then hide the results of that investigation from the taxpayers who paid for it.