Once again Oklahoma Attorney General Mike Hunter is refusing to release the audit of the LICRAT [Lead Impacted Communities Relocation Trust].
The current AG supports former Oklahoma Attorney General Scott Pruitt's withholding of a state audit conducted by the Oklahoma State Auditor and Inspector Gary Jones regarding the Tar Creek Superfund buyout.
“Plaintiff seeks to violate the trust placed by the people of Oklahoma in the Attorney General, and more particularly in the multicounty grand jury system,” Hunter's legal response filed on Jan. 17 concludes. “The Attorney General is the State's chief law enforcement officer and there is long-standing presumption that public officials act lawfully. The Oklahoma Open Records Act clearly provides exemptions to disclosure for the types of materials sought by Plaintiff, and the Multicounty Grand Jury Act takes very seriously the confidential nature of its investigations, and records.”
Hunter's response claims the plaintiff, a Washington DC-based watchdog group, Campaign for Accountability (CfA) failed to make a substantiated claim and asks the court to dismiss their petition with prejudice. CfA initially formally requested the LICRAT audit records on Nov. 14, 2017.
The Open Records Act lawsuit filed by CfA in Oklahoma County District Court asked for the release of the LICRAT audit directly from the Oklahoma State Auditor Gary Jones and Oklahoma Attorney General Mike Hunter.
Jones, through his Oklahoma City attorney Mickey Dodson, answered the lawsuit last week in a legal response asking the judgment declare the public’s right to access the requested records in accordance with ORA, and the judge issue a writ ordering Jones to produce the requested records.
Oklahoma State Auditor Gary Jones conducted the audit investigation at the request of then Oklahoma State Attorney General Scott Pruitt, who now serves as the Administrator for the U.S. Environmental Protection Agency, which oversees the Tar Creek Superfund.
Pruitt called for the audit in 2011 in relation to an investigation of possible unlawful activity of LICRAT involving the Tar Creek Relocation site initiated by the AG after then-Senator Tom Coburn brought the matter to his attention. The criminal audit was ordered under supervision of the AG’s Multi-County Grand Jury Unit, which then reviewed the findings.
Pruitt was apprised of the audit findings and declined further action.
Hunter's legal response to the CfA lawsuit makes several claims to support the legal argument against the request for release of records including that Jones was acting as an agent of the Oklahoma Attorney General in support of law enforcement function.
Hunter also claims the AG may keep investigatory reports confidential by state law.
“This audit was conducted to review possible criminal activity, and therefore compromises an investigatory report of the OAG (Oklahoma Attorney General)…It is up to the discretion of the OAG, and the OAG has determined that these records be kept confidential,” Hunter wrote in his response.
Hunter argues the sought after chief law enforcement officer’s records are not public.
“…the ORA allows for the possibility that a court might find that the public interest in disclosure is greater than the public interest in denial of access to the records in question. Plaintiff’s Petition makes no factual allegation showing that to be the case here,” Hunter asserts in the filing.
Hunter claims release of the audit would undermine the State’s ability to engage confidential informants in uncovering and developing cases involving activities such as fraud, bribery, public corruption, unlawful access to housing or employment or other crimes. He states in his argument, the disclosure of records would risk the identities of individuals victimized by crimes and would have a “chilling effect” on other state’s willingness to partner with the OAG in multi-state litigation.
As OAG, Hunter serves as the lawyer to the State, its agencies, and employees and he also contends if production of privileged and confidential attorney-client communications is compelled by the court, it could severely damage a client’s ability to speak candidly.
“All of these public interests are significant, and all weigh in favor of denial of the records sought by the Plaintiff here,” Hunter wrote.
The AG asserts the work of the multicounty grand jury is not disclosable pursuant to the Multi-County Grand Jury Act, which compels witness testimony and production of documents only disclosed at the AG’s sole discretion, as he considers essential to public interest and effective law enforcement.
“To violate the solemnity of that body and its records would endanger the people of Oklahoma and their justice system,” Hunter wrote.
Hunter argues the Attorney General is presumed to have acted lawfully and has specifically stated reasons for denial of the records.
“Plaintiff appears to argue in its Petition that the Attorney General did not ‘cite the specific exemption relied upon to deny access. However, the Attorney General’s office specifically stated, in response to Plaintiff’s November 14, 2017, Open Records Act request that the records were being withheld under (Oklahoma law) regarding 'the investigative and litigation files of the Attorney General’s Office.' The citation is clear, as is the language of that section of the Open Records Act,” Hunter responded.
The Campaign for Accountability is now reviewing the responses with their legal representatives, according to CfA’s Executive Director Daniel Stevens.
“In addition to what we discussed last week, the Auditor's response also seems to indicate that the Attorney General's Office may have already released the audit to LICRAT,” Stevens said Monday. “If the audit has already been released to LICRAT, then it should be released publicly so everyone can see what it says. The Attorney General should have to answer whether his office has already released the audit. Given the lengths that both Scott Pruitt and Attorney General Hunter have gone to keep this audit secret, it really makes us wonder what exactly is in that audit.”