Date: Jan 15, 2026

Attorney-Client Privilege for Public Bodies Does Not Expire When the “Pending” Matter Ends: ORA Requests Cannot Pierce Confidential Jones Day Investigative Reports

Case: NONDOC MEDIA and WILLIAM W. SAVAGE III v. STATE Ex Rel. BOARD OF REGENTS of the UNIV. of OKLAHOMA
Court: Supreme Court of Oklahoma
Date: 2026-01-13
Disposition: Affirmed (summary judgment for the University)

Introduction

This appeal arises from two denied requests under Oklahoma’s Open Records Act (ORA), 51 O.S.2021, § 24A.1 et seq., by NonDoc Media and journalist William W. Savage III (collectively, “NonDoc”) seeking disclosure of two internal investigative reports prepared for the University of Oklahoma by outside counsel Jones Day. The University, acting through the State ex rel. Board of Regents, refused production, asserting multiple protections—most prominently the attorney-client privilege.

The reports concerned (1) alleged misreporting of alumni donor data to external publications (the “Alumni Donor Report”) and (2) allegations of sexual misconduct involving high-level University personnel (the “Sexual Misconduct Report”). Both matters became subject to multi-county grand jury subpoenas; the University shared the reports with the Oklahoma State Bureau of Investigation (OSBI) under joint-interest arrangements. NonDoc contended the ORA required disclosure and argued, among other things, that the attorney-client privilege either did not apply or had been waived through disclosures.

The key legal issues were: (a) whether the attorney-client privilege protected the reports from ORA production, particularly given statutory language limiting public-body privilege to communications about “pending” matters; and (b) whether any sharing of the reports or excerpts constituted waiver.

Summary of the Opinion

The Oklahoma Supreme Court affirmed summary judgment for the University, holding that both Jones Day reports are protected from ORA disclosure by the attorney-client privilege. The Court rejected NonDoc’s position that the privilege depends on whether an investigation or action remained “pending” at the time of the ORA request; instead, the determinative point is whether the matter was pending when the privileged communications were made.

The Court further held the University did not waive the privilege by: producing the reports to OSBI pursuant to subpoenas and joint-interest agreements; correcting information to U.S. News via data held separately from the Alumni Donor Report; or providing limited excerpts of allegations to relevant parties under Title IX and due process obligations. Because attorney-client privilege alone resolved the case, the Court declined to address other exemptions and privileges discussed by the district court.

Analysis

Precedents Cited

1) Scope and Purpose of Attorney-Client Privilege

The Court anchored its analysis in the classic policy rationale from Upjohn Co. v. United States, 449 U.S. 383 (1981), emphasizing that attorney-client privilege is intended to encourage “full and frank communication” to promote lawful administration and justice. This framing supports a robust, non-technical approach to privilege—one resistant to rules that would chill internal consultation in sensitive matters.

Oklahoma’s foundational articulation came from Chandler v. Denton, 1987 OK 38, which the Court cited for the elements of privilege (attorney-client relationship + confidential communications) and the enduring nature of privilege even after the relationship ends. Chandler directly undercut NonDoc’s effort to impose a functional “expiration date” once an investigation concludes.

2) Privilege in the Public-Body Context and “Pending” Matters

The Court addressed Oklahoma’s statutory public-body limitation: 12 O.S.2021, § 2502(D)(7). It relied heavily on the policy guidance from Okla. Ass'n of Mun. Attorneys v. State, 1978 OK 59, which recognized no legislative intent to abrogate attorney-client confidentiality for public bodies and warned of impairment to government functioning if confidential legal communications were exposed.

The Court also invoked Oklahoma Pub. Employees Ass’n v. State ex rel. Oklahoma Office of Pers. Mgmt., 2011 OK 68, to temper ORA’s disclosure purpose: disclosure should serve the public interest, not mere curiosity. This principle reinforced the Court’s view that ORA cannot be used to obtain sensitive legal analyses simply because the underlying controversy has cooled.

NonDoc cited federal decisions interpreting Oklahoma law—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)—as support for its “pending at request time” theory. The Court distinguished them as not addressing whether communications were made while the matters were pending. Here, by contrast, it was “undisputedly” during pending investigations, making the privilege operative and durable.

3) ORA Procedure and Appellate Standards (Contextual Authorities)

Although not central to the privilege rule, the Court cited authorities governing summary judgment review and the limited record: Girl Scouts-Western Oklahoma, Inc. v. Barringer-Thomson, 2011 OK 21, and In re MacFarline, 2000 OK 87 (de novo review). It also cited Oklahoma Ass'n of Broadcasters, Inc. v. City of Norman, Norman Police Dep’t, 2016 OK 119, for the summary judgment standard (no dispute of material fact; entitlement as a matter of law). These cases framed the Court’s willingness to affirm based on privilege as a legal conclusion supported by in camera review and undisputed engagement facts.

4) Waiver, Narrow Construction, and Common Interest

The Court emphasized that waiver should be narrowly construed, citing Citizens Against Taxpayer Abuse, Inc. v. City of Oklahoma City, 2003 OK 65. It placed the burden of proving waiver on the party seeking to defeat privilege and cited Clark v. Dist. Court, 668 P.2d 3 (Colo.1983) as supportive authority on allocation of burden.

For the common-interest principle (sharing privileged material with aligned parties without waiver), the Court cited Metro Wastewater Reclamation Dist. v. Cont'l Cas. Co., 142 F.R.D. 471 (D.Colo.1992), recognizing that communications shared with third persons having a common legal interest are not a breach or waiver of confidentiality.

For the concept that waiver must be voluntary and evaluated with flexibility based on privilege objectives, the Court referenced 12 O.S.2021, § 2511 and relied on Hogan v. State, 2006 OK CR 27. This was used to support the conclusion that compelled or duty-bound disclosures (subpoena compliance; Title IX/due process excerpts) do not readily equate to voluntary waiver of “any significant part” of the privileged matter.

5) Non-Waiver via Government Disclosures and Confidentiality Agreements (Persuasive Authorities)

To reinforce that disclosure to government agencies under explicit non-waiver or confidentiality arrangements does not necessarily waive privilege, the Court surveyed out-of-jurisdiction authorities:

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 supplied persuasive support for the Court’s acceptance of the University–OSBI joint-interest arrangement and subpoena-driven sharing as non-waiving behavior, particularly where the receiving agency was not an adversary and confidentiality steps were taken.

Legal Reasoning

1) The Court’s Core Holding: “Pending” Is Measured at the Time of Communication, Not the ORA Request

The opinion’s central move is interpretive: it treats 12 O.S.2021, § 2502(D)(7)’s “pending investigation, claim, or actions” as a condition evaluated when the confidential attorney-client communication is created and exchanged—not when an ORA requester later demands disclosure. The Court expressly rejected the notion that privilege evaporates once an investigation ends, stating it could not “inject an expiration date on an otherwise valid privilege.”

This approach aligns the public-body privilege with the broader common-law continuity of privilege (as reaffirmed in Chandler v. Denton) and avoids creating a perverse incentive: delaying open-records requests until a sensitive investigation concludes to obtain legal analyses, witness summaries, and attorney impressions.

2) Privilege Applied to the Jones Day Reports as Legal Communications

The Court relied on undisputed facts establishing an attorney-client relationship via engagement letters and on the district court’s in camera review findings that the reports contained confidential communications, interview summaries, investigative results, legal analysis, opinions, advice, and attorney mental impressions conveyed to the University. This content fit squarely within 12 O.S. § 2502.

Notably, the Court did not re-litigate each line of the reports publicly; instead it deferred to the in camera process as the appropriate mechanism to protect confidentiality while allowing judicial validation of privilege.

3) ORA’s Broad Policy Does Not Override Specific Privilege

The Court reiterated ORA’s pro-access purpose but emphasized ORA expressly yields to specific statutory privileges and exemptions. The attorney-client privilege was treated as such a controlling carve-out. The Court also added a policy warning: making closed governmental investigations’ legal communications disclosable would “wreak havoc within the government” by chilling candid legal consultation.

4) Waiver Rejected on a Fact-Specific, Narrow-Construction Approach

The Court affirmed the district court’s rejection of waiver arguments across four alleged disclosures:

OSBI sharing: Reports were produced pursuant to subpoena and protected by a Joint Interest Agreement; OSBI was not adversarial and shared a common governmental investigative interest.
U.S. News corrections: Corrective data did not come from the Alumni Donor Report but from separate University records (Office of Institutional Research and Reporting).
Title IX respondent excerpts: Only limited allegations were provided, not the entire report, and this was driven by statutory duty and due process.
Complainant/witness excerpts: Similarly limited, duty-based disclosure, not broad publication of privileged material.

The Court placed weight on (a) the limited nature of disclosures (excerpts rather than full reports), (b) the compelled or duty-based context (subpoenas; Title IX/due process), and (c) affirmative confidentiality protections (joint-interest agreement), concluding NonDoc did not meet its burden to prove waiver.

5) Judicial Restraint: Not Reaching Other Exemptions

Having found attorney-client privilege dispositive, the Court declined to analyze alternative ORA exemptions and privileges (e.g., personnel records, investigatory reports, deliberative process, work product, informer identity). This is an efficiency and precedent-management choice: the opinion primarily establishes a clear rule on public-body attorney-client privilege durability and non-waiver under joint-interest/subpoena and limited Title IX disclosure scenarios.

Impact

Durability of public-body privilege: The opinion effectively sets a practical rule that the “pending” condition in 12 O.S. § 2502(D)(7) is assessed when the privileged communication was made; privilege does not lapse merely because the investigation later ends.
ORA request timing becomes largely irrelevant: Requesters cannot circumvent privilege by waiting for closure of an investigation and then demanding counsel’s reports through ORA.
Structured non-waiver pathway for inter-agency cooperation: Sharing privileged investigative reports with law enforcement under subpoena and joint-interest/confidentiality arrangements is less likely to be deemed waiver, supporting coordinated governmental responses to complex matters.
Title IX and due process disclosures not treated as broad waiver: Limited, obligation-driven excerpts to parties in campus misconduct processes will not automatically open the door to full public disclosure of counsel’s investigative reports.
Likely litigation focus shift: Future ORA litigants may pivot to contesting (a) whether the material is genuinely legal advice versus purely factual, (b) whether confidentiality was maintained, and (c) whether the matter was actually “pending” at the time of the communication—rather than arguing privilege expires after closure.

Complex Concepts Simplified

Open Records Act (ORA): Oklahoma’s statute favoring public access to government records. It promotes transparency but contains exceptions where other laws make records confidential.
Attorney-client privilege: A rule that protects confidential communications between a lawyer and client made for the purpose of obtaining or providing legal advice. Here, the Court treated the Jones Day reports as legal communications to the client (the University), not general “public reports.”
“Pending” investigation under 12 O.S. § 2502(D)(7): For public bodies, Oklahoma limits privileged communications to those concerning a “pending” investigation/claim/action and where disclosure would impair the public body’s ability to handle it. This opinion clarifies that “pending” is evaluated when the communication was made—not when an ORA request is later filed.
In camera review: A confidential judicial inspection of the documents by the judge (not the public) to determine whether claimed privileges apply without revealing the contents.
Waiver: Losing privilege protection because the holder voluntarily disclosed a significant part of the privileged material. The Court held there was no waiver here due to subpoenas, joint-interest protections, and limited duty-based excerpts.
Common interest / joint-interest agreement: A doctrine allowing parties with aligned legal interests (often in anticipated or ongoing litigation/investigation) to share privileged information without waiving privilege, so long as confidentiality is maintained against adversaries.
Title IX disclosures: Campus sexual misconduct processes may require providing parties certain information to satisfy procedural fairness. The Court treated these limited excerpts as compliance measures, not public disclosure of the privileged investigative report.

Conclusion

The Oklahoma Supreme Court’s decision affirms a strong, durable attorney-client privilege for public bodies in the ORA context: when legal communications are created during a “pending” matter, the privilege does not expire simply because the matter later ends. The Court also signaled that subpoena-driven sharing with law enforcement under joint-interest protections—and narrow, duty-based Title IX disclosures—will not readily be treated as waiver. Practically, the opinion fortifies the confidentiality of counsel-led internal investigations for governmental entities while defining a clearer boundary between transparency obligations and protected legal communications.