Date: 12-05-2014

Case Style: Wendy Gregory v. Mary Fallin and The State of Oklahoma, Office of the Governor

Case Number: CV-2013-2280

Judge: Patricia G. Parrish

Court: District Court, Oklahoma County, Oklahoma

Plaintiff's Attorney: Tony Mareshie

Defendant's Attorney: Travis Verl Jett and Robert McCampbell

Description: COMES NOW the Plaintiff, Wendy Gregory, and submits her causes of action for
Declaratory and Injunctive Relief against the Defendant, Honorable Mary Fallin, in her official
capacity as Governor of the State of Oklahoma, and the State of Oklahoma Office of the
Governor (“Governor’s Office”together as “Defendants”) pursuant to the Oklahoma Open
Records Act, 51 OS. §24A.l, et. seq. (“OORA”):
PARTIES, JURISDICTION AND VENUE
1. Wendy Gregory (“Plaintiff’ or “Ms. Gregory”) is a resident of Tulsa County, State of Oklahoma. She s the former Tulsa office director for the Defendants.
2. Ms. Fallin is the Governor of the State of Oklahoma, and is a resident of Oklahoma County, State of Oklahoma.
3. The Governor’s Office is the executive branch of this State’s government which acts through both Ms. Fallin and several other persons who have failed to comply with the provisions of the OORA.
4. The incidents giving rise to this cause of action occurred in Tulsa County, State of Oklahoma.
5. Personal jurisdiction is proper pursuant to 12 OS. § 2004(f) and venue is properly laid pursuant to 12 0.5. §133.
OPERATIVE FACTS
6. Ms. Fallin, as does the Governor’s Office, has the constitutionally -imposed duty to enforce the laws of Oklahoma including the OORA.
7. Ms. Fallin was a 2010 signatory to the Oklahoma’s Open Government Pledge. jSee, e.g., Exhibit A, Letter from Tony Mareshie to Governor Mary Fallin and Audrey Rocltwe/idated October 21, 2013, Attachment 2.
8. The Plaintiffs statutory basis for obtaining the records she seeks, specifically her employment/personnel file and the Governor’s Office policy and procedures manual (herein as “Subject Records”), is the OORA. In pertinent part, 51 OS. §24A.2 states:
As the Oklahoma Constitution recognizes and guarantees, all political power is inherent in the people. Thus, it is the public policy of the State of Oklahoma that the people arc vested with the inherent right to know and be fully inibrmed about their government. ..The purpose of this act is to ensure and facilinite the public’s right of acccss to and review of government records so thcy may efficiently and intelligently exercise their inherent political power.. Except where specific state or federal statutes create a confidential privilege, persons who submit information to public bodies have no right to keep this information from public access nor reasonable expectation that this information will be kept from public access; provided, the person, agency or political subdivision shall at all times bear the burden of establishing such records are protected by such a confidential privilege. Except as may be required by other statutes, public bodies do not need to Follow any procedures for providing access to public records except those specifically required by the Oklahoma Open Records Act.
9. The Plaintiff’s employment as the Defendants’ Tulsa office director was tenninated on December 10, 2013 by them because Ms. Gregory had received one (1) IRS garnishment levied against her salary.
10. In an email sent to the Plaintiff within days after her termination, the Defendants confirmed said basis for termination was their receiving an IRS garnishment.
I. Prior to the commencement of the wrongful termination action, the Plaintiff sought unemployment benefits through Oklahoma’s Employment Securit Commission (“OESC”). In its Notice of Determination awarding the Plaintiff unemployment benefits, the OESC stated:
The Claimant [Ms. Gregory] was discharged from the Governor’s Office due to discretionary reasons. A garnishment notice was received but it ‘A as for claimant’s husband exwife. Although it may have been in the best interest of the employer to discharge the claimant misconduct connected to the work has not been established. Benefits are allowed.
12. The Plaintiff commenced a civil action against Ms. Fallin and hcr chief of staff, Denise Northrup, on January 31, 2013 claiming, among other things, that she was wrongfully and unlawfully terminated (the “wrongful termination action”). The wrongful termination action has since been amended to assert additional causes of action.
13. On or near February 5, 2013, the Defendants’ communications director Alex Weintz informed the Oklahoma public through news publications that the Plaintiff was fired because she “was not performing satisfactorily”. This announcement was absolutely false, without any factual basis, and inconsistent with the foregoing events.
14. The Defendants have been represented by the Oklahoma Atiomey General’s Office in the wrongful termination action that is currently pending before tile United States District Court for the Western District of Oklahoma. U.S. District Court for the Western District
Case No.: 13-CV-554. The Plaintiff served her original OORA request on the Defendants through their counsel on July 7. 2013, in which she requested be produced to hcr pursuant to the
OORA:
[A]ny and all records related to Ms. Gregory, former Tulsa Office Director for Governor Faihin, employment including her personnel file, as well as the employee policy and procedure manuals, handbooks, or the like for the all employees of Governor Fallin’s office, be made available to me for inspection..
15. Personnel records such as those belonging to Ms. Gregory are to be made
available to the public, especially given her termination of employment. The OORA prescribes:
All personnel records not specifically falling within the exceptions prcrvided in subsection A of this section shall he available for public inspection and copying including, hut not limited to, records of:...
4. Any final disciplinary action resulting in loss of pay, suspension, demotion of position, or termination.
51 0.5. §24A.7(B)(4).
16. Pursuant to the OORA. the Plaintiff is absolutely entitled to her personnel file. 51
0.5. §24A.7(C) states that “[ejxcept as may otherwise be made confidential by statute, an employee of a public body shall have a right of access to his own personnel file.’
17. The Oklahoma Attorney General’s office forwarded the Plaintifs July 7. 2013 OORA request to the Defendants on July 9. 2013. See, e.g., Exhibit A, Attachment 1,
18. The Defendants are subject to the provisions of the OORA and have acknowledged receiving the Plaintiffs OORA request.
19. Since her initial July 7, 2013 OORA request, the Plaintiff has written the Defendants three (3) additional times requesting their compliance with the O()RA and to provide the Subject Records. [Exhibit A, p. fl
20. At no point prior to the filing of this action have the Defendants asserted any statutory-prescribed privilege or exemption, such as those enumerated at 51 OS. §* 24A.5, 24A.7 from their compliance with the OORA or otherwise provided the Plaintiff the Subject Records. Indeed, the Defendants have asserted no cognizable bases for their non-compliance either at law or in equity.
21. the OORA requires that a public body must provide “prompt, reasonable access” to its records [51 0.5. §24A.5(5)}, such being defined by the Oklahoma Attorney General’s Office as “only the time required to locate and compile the public records.” 1909 OK AG 58,
¶115.
22. The Governor’s Office has suggested that the Plaintiff obtain her personnel records from an alternative source, which she attempted to do. The Plaintiff received three (3) pages of materials which did not state a bases for her termination, much less ihe Defendants’ published basis being her “not performing satisfactorily” while the Defendanis’ Tulsa office director.
23. On April 9. 2013, approximately three months before the Plaintiff commenced efforts to obtain the Subject Records, another action seeking declaratory and injunctive relief was filed against Defendants seeking their compliance with the OORA. See, Vandeim’ Entertainment, LLC, d.b.a. The Lost Ogle v. Mary Fallin, et. at, Oklahoma County Case No.: CV-2013-763. In that civil action, the entity seeking records alleged:
On or about December 7, 2012, Plaintift by and through its owner and publisher, Patrick Riley, sent Governor Fallin a written request to make specific public records available for inspection pursuant to the Oklahoma Open Records Act. This request was received on or about December 10, 2012, by the Office of the Governor...
On or about March 29. 2013, the Office of the Governor released 51,029 pages of documents in digital format. This release was made in combined response to multiple Open Records Requests of substantially similar scope to
that made by the Plaintiff....
[Emphasis added].
24. Tn the approximately three and one-half months after the Vandelay Entertainment plaintiff commenced its efforts to obtain records from these Defendants, it was provided more than 51,000 pages of documents from them. Conversely, in the nearly identical period of time from when Ms. Gregory first commenced her efforts to obtain the Subject Records from the Defendants, the Defendants have not produced a single pagc of records. Further, there is no definitive indication when such will occur--if ever.
25. The Defendants have no excuse for their unlawful refusal to comply with the Plaintiffs meager Subject Record request. Indeed, givcn at least: 1) how quickly Mr. Weintz came forward and told thc public Ms. Gregory’s employment was terminated for cause, and 2) that the Defendants’ have been already sued, these records should be easily accessible and on hand.
26. Ms. Gregory’s personal and professional reputation has been called into question by the Defendants in the most damaging and public way imaginable, thereby causing Ms. Gregory difficulty in finding gainful employment and means to provide for herself and family.
FIRST CAUSE OF ACTION
DECLARATORY JUDGMENT
For her First Cause of Action against the Defendants, the Plaintiff adopts and re-alleges all of the allegations above as if fully set forth herein; and she further alleges and states:
27. The OORA expressly prescribes the following:
A. Any public official who willfully violates any provision of the Oklahoma Open Records Act, upon conviction, shall be guilty of a misdemean r, and shall be punished by a fine not exceeding Five Hundred Dollars ($500.00) or

* * *

32. l’he OORA expressly prescribes that the Plaintiff may seek injunctive relief for violations of its provisions.
33. The Plaintiff is entitled to injunctive relief from this Court, and this Court should Order the release of the Subject Records sought by the Plaintiff and to which she is lawfully entitled, to-wit: 1) Her employment/personnel file in the possession of the Defendants; and 2) The Defendants’ employee or personnel manual or handbook.
34. The Court should enter an Order enjoining thc Defendants front continuing to refuse compliance with the provision of the OORA.
35. The Plaintiff has no adequate remedy at law or equity, and without the Court’s entry of injunctive relief, the Defendants will continue to contravene the letter and purpose of the 00Th\.
36. The Plaintiff is entitled to an Order awarding her accrued and accruing reasonable attorneys’ fees she has expended and will continue to expend in bringing this action pursuant to the OORA.
WHEREFORE, premises considered, the Plaintiff, Wendy Gregory, prays the Court for ln3unetive Relief against the Defendants consistent with the relief prayed for in this cause of action; and further award her accrued and accruing attorney fees, and any other relief deemed just and equitable.

ANSWER

Defendants Mary Fallin and State of Oklahoma Office of the Governor, by and through their attorney, and for their answer to the Plaintiffs Petition, deny each and every allegation contained therein, excepting those specifically admitted hereinafter:
1. Admitted
2. Admitted
3. Denied
4. Denied
5. Admitted
6. Denied in part as stated. The Attorney General for the State of Oklahoma is the chief law enforcement officer of the State of Oklahoma. The Governor has a constitutionally imposed duty to comply with the laws of the State of Oklahoma, and seek enforcement of such laws as constitutionally mandated to her office.
7. Admitted in part, and denied in part as stated as such allegation is not an “operative fact” and has no relevance to alleged violations of the Open Records Act.
8. This paragraph contains a jurisdictional statement only and no allegation against either Defendant.
9. Denied
10. Denied
11. Admitted in part, but denied as to the factual accuracy of the statement contained in the OESC determination.
12. Admitted in part, and denied in part as stated as such allegation is not an “operative fact” and has no relevance to alleged violations of the Open Records Act.
13. Denied
14. Admitted in part, and denied in part as stated as such allegation is not an “operative fact” and has no relevance to alleged violations of the Open Records Act.
15. Denied as stated, as Ms. Gregory has a right to privacy in her own personnel file, but not all personal identifiers or documents may be made available to the “public” without reservation or exception as described by Plaintiff in this paragraph.
16. Admitted in part as Ms. Gregory was never denied access to her personnel file, and denied in part as to Plaintiff’s qualification of this right as “absolute.”
17. Admitted
18. Admitted
19. Admitted in part that Plaintiff, through her counsel, has written to the Defendants, although only one such letter is attached to the Petition at Exhibit A.
20. Admitted, as Defendants have never denied Plaintiffs open records request as more particularly described in Defendants’ previously denied Motion to Dismiss.
21. This paragraph contains a jurisdictional statement only and no allegation against either Defendant.
22. Admitted
23. Admitted in part, but denied as to the factual accuracy of the statements contained in the allegations made by “Vandelay Entertainment, LLC.”
24. Admitted in part, and denied in part as Defendants have now produced documents responsive to the Plaintiff’s request through the discovery process.
25. Denied
26. Denied
27. Admitted in part as this paragraph contains a jurisdictional statement only and no allegation against either Defendant. Denied in part, as the Plaintiff cannot pursue a criminal action personally.
28. Denied
29. Denied
30. Denied
31. Denied
32. This paragraph contains a jurisdictional statement only and no allegation against either Defendant.
33. Denied
34. Denied
35. Denied
36. Denied
AFFIRMATIVE DEFENSES
Come now the Defendants, and for their affirmative defenses, allege and state as follows:
1. The Plaintiff fails to state a claim for which relief may be granted.
2. As documents responsive to Plaintiff’s request have been provided, and will continue to be provided upon receipt, through the discovery process, the Plaintiff’s petition for declaratory and injunctive relief is moot and should be denied.
3. Damages as to personal reputation and/or defamation are not relevant to this action for recovery of documents pursuant to the Open Records Act.
4. Plaintiff is limited to records requested and denied prior to the filing on suit.
5. The Open Records Act does not require any governmental entity within the State of Oklahoma to create records or a new record keeping system to make document production as demanded by Plaintiff.
6. The Open Records Act does not require a governmental entity or officer to take requests pursuant to the Act out of the order received.
7. The Open Records Act does not create a personal right of action for the criminal prosecution of violations of the Act.
8. No acts taken by the Governor, or her office amount to willful violation of the Act.
9. Any award of attorney fees must be reasonable and limited to that amount of contemporaneously recorded and documented work performed by the attorney which is related to the pursuit of the claims for records subject to the Act, and not for work expended specifically for Plaintiff’s separate action for wrongful termination.
10. These Defendants reserve the right to amend their affirmative defenses should additional discovery identify the applicability of other defenses.

Outcome: Settled for $125,000.00.

Plaintiff's Experts:

Defendant's Experts:

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