Attorney-Client Privilege for Oklahoma Public Bodies Does Not Expire When the “Pending” Matter Concludes (and Is Not Waived by Subpoenaed Joint-Interest Disclosures)

I. Introduction

In NONDOC MEDIA and WILLIAM W. SAVAGE III v. STATE Ex Rel. BOARD OF REGENTS of the UNIV. of OKLAHOMA, 2026 OK 2 (Jan. 13, 2026), the Oklahoma Supreme Court addressed whether two internal investigation reports prepared by outside counsel for the University of Oklahoma must be produced under the Oklahoma Open Records Act (ORA), 51 O.S.2021, § 24A.1 et seq.

The plaintiffs/appellants—The Sustainable Journalism Foundation d/b/a NonDoc Media and journalist William W. Savage III (collectively, “NonDoc”)—sought disclosure of two Jones Day reports: (1) an “Alumni Donor Report” concerning alleged misreporting of alumni donor information to the news media, and (2) a “Sexual Misconduct Report” concerning allegations involving former University President David Boren and former employee Tripp Hall. The defendant/appellee was the State of Oklahoma ex rel. Board of Regents of the University of Oklahoma (the “University”).

The central issues were: (a) whether the reports were protected from disclosure by the attorney-client privilege (and other asserted protections), and (b) whether any protection was waived by disclosures to third parties, including the Oklahoma State Bureau of Investigation (OSBI) and limited disclosures under Title IX processes.

II. Summary of the Opinion

The Court affirmed summary judgment for the University, holding that both Jones Day reports are protected from production by the attorney-client privilege. The Court further held that the privilege was not waived by (i) providing the reports to OSBI pursuant to subpoenas under a joint-interest agreement, (ii) correcting information to U.S. News, or (iii) providing limited excerpts of allegations from the Sexual Misconduct Report to the Title IX respondent and complainant as required by statutory and due process obligations.

Because attorney-client privilege resolved the dispute, the Court declined to reach the ORA exemptions and additional privileges addressed by the district court (e.g., personnel records exemption, work-product, identity of informer).

III. Analysis

A. Precedents Cited

1. Summary judgment posture and review

  • Girl Scouts-Western Oklahoma, Inc. v. Barringer-Thomson, 2011 OK 21: Cited for the accelerated procedure and limited appellate record in summary judgment appeals, and the de novo standard of review.
  • In re MacFarline, 2000 OK 87: Cited (via Girl Scouts-Western Oklahoma) for de novo review principles.
  • Oklahoma Ass'n of Broadcasters, Inc. v. City of Norman, Norman Police Dep’t, 2016 OK 119: Cited for the general summary judgment standard—no dispute of material fact and entitlement to judgment as a matter of law.

2. Core privilege doctrine

  • Upjohn Co. v. United States, 449 U.S. 383 (1981): Used as the foundational articulation of attorney-client privilege’s purpose—encouraging “full and frank communication” to serve the administration of justice. The Court also later referenced Upjohn in discussing waiver as a fact-sensitive inquiry.
  • Chandler v. Denton, 1987 OK 38: Cited for Oklahoma’s recognition of the privilege when an attorney-client relationship exists and communications are confidential, and for the proposition that privileged communications remain protected even after termination of the relationship. This case anchored the Court’s rejection of a time-limited privilege theory.

3. Public-body attorney-client confidentiality and the public-interest frame

  • Okla. Ass'n of Mun. Attorneys v. State,1978 OK 59: Cited for the proposition that there was no legislative intent to abrogate attorney-client confidentiality for public bodies, and to underscore that disclosure of confidential communications can “seriously impair” public bodies’ ability to act in the public interest.
  • Oklahoma Pub. Employees Ass’n v. State ex rel. Oklahoma Office of Pers. Mgmt., 2011 OK 68: Cited for the limiting principle that while the ORA favors disclosure, disclosure serves the public interest and is “not to satisfy the public's curiosity.” The Court used this to justify protecting legal-strategy communications even amid open-government norms.

4. “Pending” matters and distinguishable federal decisions

  • McCurty v. Aetna Life Insurance Co., No. CIV-05-84-L, 2006 WL 8436510 (W.D. Okla July 18, 2006) and Oklahoma ex rel. Edmondson v. Tyson Foods, Inc., No. 05-CV-329-GFK-SA.J. 2008 WL 183362 (N.D. Okla. Jan. 16, 2008): The Court acknowledged these federal cases as recognizing that, under Oklahoma law, public-body attorney-client privilege is restricted to “pending” matters, but distinguished them because the records there did not clarify whether communications were created before or after the matters were pending. In this case, the reports were undisputedly created during pending investigations; thus, the privilege attached and persisted.

5. Waiver principles and the common-interest framework

  • Citizens Against Taxpayer Abuse, Inc. v. City of Oklahoma City, 2003 OK 65: Cited for the proposition that waiver of a privilege or exemption should be narrowly construed.
  • Clark v. Dist. Court, 668 P.2d 3 (Colo.1983): Cited for allocation of burdens—while the privilege-holder must establish privilege, the party seeking disclosure bears the burden to prove waiver.
  • Metro Wastewater Reclamation Dist. v. Cont'l Cas. Co., 142 F.R.D. 471 (D.Colo.1992): Cited for the common legal interest principle: sharing communications with third persons who share a common legal interest does not constitute a breach or waiver.
  • Hogan v. State, 2006 OK CR 27: Cited for interpreting 12 O.S. § 2511 to provide a flexible, fact-dependent waiver standard that considers the privilege’s objectives.
  • The Court also cited several non-Oklahoma authorities upholding non-waiver where disclosures are made to government agencies under confidentiality/non-waiver arrangements: In re Natural Gas Commodities Litigation, 232 F.R.D. 208 (S.D.N.Y. 2005); N.L.R.B. v. Jackson Hosp. Corp., 257 F.R.D. 302 (D.D.C.2009); Police & Fire Ret. Sys. of the City of Detroit v. Safenet, Inc., 2010 WL 935317 (S.D.N.Y. Mar. 12, 2010); Maruzen Co. v. HSBC USA, Inc., 2002 WL 1628782 (S.D.N.Y. July 23, 2002). These cases functioned as persuasive support for preserving privilege in subpoena/confidentiality settings.

B. Legal Reasoning

  1. ORA’s broad disclosure mandate yields to specific privileges. The Court began from ORA’s purpose—facilitating access to government records (51 O.S.2021, § 24A.2)—but emphasized ORA itself recognizes limits where state or federal law creates a confidential privilege or exemption. Attorney-client privilege is one such limiting doctrine.
  2. The “pending” requirement applies at the time of the communication—not at the time of the ORA request. The pivotal interpretive move was reading 12 O.S.2021, § 2502(D)(7) (public-body communications) to ask whether the communication “concerns a pending investigation, claim, or actions” when the communication was made. The Court rejected NonDoc’s theory that a privilege evaporates once the investigation or action is no longer pending at the time of the records request. In the Court’s view, that theory improperly “inject[s] an expiration date” into privilege doctrine, contradicting both statutory text and the function of the privilege.
  3. Policy: an “expiration date” would chill candor and disrupt government decision-making. The Court reasoned that if closed matters automatically lost protection, any requester could obtain confidential legal communications after the fact, undermining the “full and frank communication” rationale stated in Upjohn Co. v. United States. The Court framed the risk as systemic: exposure of communications “in all closed investigations, cases, and other actions across all bodies of government.”
  4. In camera review supported a categorical privilege determination. The district court reviewed both reports in camera and found them comprised of confidential communications, witness interview summaries, investigative results, legal analysis, opinions, advice, and mental impressions conveyed by counsel to the client. The Supreme Court, reviewing de novo, found “no error” in the conclusion that the reports “fall within” 12 O.S. § 2502. This was important because it avoided line-by-line redaction disputes; the Court accepted the reports’ character as legal communications and advice products prepared within the attorney-client relationship.
  5. Waiver: disclosures were compelled/limited and structured to preserve confidentiality. The Court agreed with the trial court that NonDoc failed to carry its waiver burden. Key elements:
    • OSBI disclosure: the reports were provided pursuant to subpoenas and a Joint Interest Agreement; OSBI was not “adversarial” to the University and shared a joint governmental interest in investigation. This was treated as consistent with maintaining confidentiality, not as voluntary waiver.
    • Title IX excerpts: the University provided only limited allegations excerpts, not entire reports, and did so under statutory/due process obligations with restricted access and identification as attorney-client material.
    • U.S. News correction: the court found the corrected information did not come from the Alumni Donor Report, but from a separate University office that held the data independently—undercutting any “subject matter waiver” argument.
    The Court reinforced that waiver must be voluntary (12 O.S.2021, § 2511) and narrowly construed (Citizens Against Taxpayer Abuse, Inc. v. City of Oklahoma City), and it highlighted statutory anti-waiver concepts for certain disclosures (including 12 O.S.2021, § 2502(F) and the public-body disclosure language quoted in the opinion).
  6. Judicial restraint on alternative grounds. Having found attorney-client privilege dispositive, the Court declined to review other claimed ORA exemptions/privileges. This choice concentrates the precedential force on privilege duration and waiver rather than on the scope of personnel, investigatory, or deliberative-process exemptions.

C. Impact

  • Durability of privilege against ORA requests. The decision establishes (or, at minimum, firmly confirms) that for Oklahoma public bodies the “pending” limitation in 12 O.S.2021, § 2502(D)(7) is measured when the confidential communication is made. Records do not become reachable simply because the underlying matter later ends. This forecloses a common open-records strategy: waiting until an investigation is over and then seeking counsel’s investigative report.
  • Broader protection for outside-counsel investigative reports. Universities, agencies, and boards frequently use outside firms to investigate high-risk events (misconduct, compliance failures, Title IX matters). This opinion supports treating resulting reports—when prepared to advise the entity—as privileged communications rather than ordinary “government records.”
  • Reduced waiver risk in coordinated government investigations. Sharing privileged materials with law enforcement under subpoena and joint-interest/non-waiver structures is less likely to be deemed a waiver, strengthening inter-agency cooperation. The opinion implicitly encourages formal joint-interest agreements and controlled disclosures.
  • Practical effects on journalism and transparency litigation. For requesters, the decision raises the bar to obtain internal investigative reports authored by counsel. Litigation may shift toward (i) seeking underlying non-privileged factual records (emails, data, policies, non-attorney witness statements created outside counsel’s direction), and (ii) challenging whether the attorney’s work was truly for legal advice (as opposed to business/PR), though the in camera characterization here makes such challenges fact-dependent.

IV. Complex Concepts Simplified

Attorney-client privilege
A rule that protects confidential communications between a lawyer and a client made for the purpose of giving or receiving legal advice. If it applies, the communication generally cannot be forced into public disclosure.
Public-body “pending” limitation (12 O.S.2021, § 2502(D)(7))
Oklahoma narrows privilege for public bodies unless the communication concerns a “pending investigation, claim, or actions” and disclosure would seriously impair the public body’s ability to handle it. This decision clarifies the relevant time: whether the matter was pending when the communication was created, not when someone later requests it.
In camera review
A private review by the judge (not the public) to decide whether a document is privileged or exempt. Here, it allowed the trial court to assess the full content of the reports before ruling.
Waiver
Losing a privilege by voluntarily disclosing a significant part of the protected communication. The Court stressed waiver is narrowly construed and must be proven by the party seeking disclosure.
Common interest / joint-interest agreement
A legal doctrine (often implemented via agreement) that allows parties with aligned legal interests to share privileged information without waiving the privilege, so long as confidentiality is preserved against adversaries.
Title IX process disclosures
In certain university sexual-misconduct proceedings, due process and regulatory obligations can require sharing allegations or evidence with the accused and complainant. The Court treated limited excerpt disclosures as consistent with maintaining privilege over the full attorney report.

V. Conclusion

NONDOC MEDIA and WILLIAM W. SAVAGE III v. STATE Ex Rel. BOARD OF REGENTS of the UNIV. of OKLAHOMA cements a practical rule for Oklahoma open-records disputes: when a public body’s lawyer-client communications are created during a pending matter and meet 12 O.S. § 2502’s requirements, the attorney-client privilege does not lapse merely because the matter later ends, nor is it readily waived by subpoenaed, confidentiality-protected sharing with law enforcement or by limited, process-required Title IX disclosures.

The opinion thus strengthens the confidentiality of counsel-driven internal investigations within Oklahoma government entities while channeling transparency efforts toward non-privileged factual sources and clearer waiver showings.