NonDoc v. OU: Supreme Court Shields Internal Investigation Reports from Open Records Act

On January 13, 2026, the Oklahoma Supreme Court issued its decision in NonDoc Media v. Board of Regents of the University of Oklahoma (2026 OK 2). The ruling has significant implications for journalists, citizens, and anyone seeking accountability from public institutions in Oklahoma. The Court held that internal investigation reports commissioned by the University of Oklahoma from the law firm Jones Day are protected by attorney-client privilege and need not be released under the Open Records Act.

The case pitted a cornerstone of democracy—government transparency—against a fundamental legal protection—attorney-client confidentiality. For now, confidentiality won.

The Backstory: Two Scandals, Two Reports

In 2018, the University of Oklahoma faced two separate public relations crises:

The Alumni Donor Report

The University discovered it had been inaccurately reporting alumni donor data to U.S. News & World Report, affecting its national rankings. OU hired the prestigious law firm Jones Day to conduct an internal investigation. Jones Day produced a report ("Alumni Donor Report") containing witness interviews, factual findings, and legal analysis.

The Sexual Misconduct Report

Around the same time, allegations of sexual misconduct surfaced involving then-President David Boren and a former employee, Tripp Hall. OU again retained Jones Day to investigate. This investigation resulted in a second report ("Sexual Misconduct Report") with similar contents—interviews, factual findings, and legal conclusions.

Both investigations concluded. Both matters became the subject of multi-county grand jury subpoenas. Neither grand jury pursued further action.

NonDoc's Open Records Request

In May 2019, the Oklahoma journalism outlet NonDoc Media and reporter William W. Savage III filed an Open Records Act request seeking both Jones Day reports.

The University denied the request, citing:

• Attorney-client privilege
• Work product doctrine
• Personnel records exemption
• Deliberative process exemption
• Identity of informer privilege

NonDoc sued in Cleveland County District Court to compel production. The district court granted summary judgment to OU, finding the reports protected by multiple privileges. NonDoc appealed, and the Oklahoma Supreme Court retained the case.

The Majority Opinion: Privilege Doesn't Expire

Justice Winchester wrote for the majority.

The Core Holding

The Court held that the Jones Day Reports are protected by attorney-client privilege under 12 O.S. § 2502 and therefore exempt from the Open Records Act.

NonDoc argued that under § 2502(D)(7), attorney-client privilege for public bodies only applies when communications "concern a pending investigation, claim, or action." Since the Jones Day investigations were complete—years before NonDoc's request—NonDoc contended the privilege no longer applied.

The Court rejected this argument:

"We cannot inject an expiration date on an otherwise valid privilege... The key factor is whether the investigation or action was pending at the time the confidential communication was made."

In other words, the privilege attaches when the communication is created. Once privileged, always privileged.

Policy Rationale

The majority reasoned that allowing disclosure just because an investigation has concluded would "create a chilling effect" on government lawyers and their clients. Public officials might hesitate to seek candid legal advice if they knew it could later be disclosed.

"Under NonDoc's rationale, any curious outsider could request the confidential communications of a governing body merely because the matter, pending at the time of the privileged communication, has since concluded."

No Waiver Found

NonDoc also argued OU waived the privilege by sharing the reports with:

1. The Oklahoma State Bureau of Investigation (OSBI) during grand jury proceedings
2. U.S. News & World Report (regarding the donor data inaccuracies)
3. David Boren and his attorney (redacted excerpts required by Title IX due process)
4. An alleged victim (also redacted excerpts under Title IX)

The Court rejected each waiver argument:

• OSBI: Sharing was done under a "Joint Interest Agreement" between government agencies, which preserves privilege.
• U.S. News: The information provided came from a separate University office, not from the Jones Day Report itself.
• Boren/Victims: Limited redacted disclosures required by statute (Title IX) do not waive privilege for the entire document.

The Dissent: "A Completed Investigation Cannot Be Impaired"

Chief Justice Rowe filed a blistering dissent.

The Textual Argument

Rowe focused on the exact statutory text. Section 2502(D)(7) says there is no attorney-client privilege for public bodies unless:

1. The communication concerns a pending investigation, claim, or action; AND
2. Disclosure would "seriously impair the ability of the public body to conduct the pending investigation."

Rowe argued the majority ignored the second prong. How can disclosure impair a pending investigation... when the investigation is finished?

"A completed investigation cannot be impaired."

Public Policy Concerns

The dissent warned the majority created a roadmap for government secrecy:

"By hiring outside counsel to conduct investigations, public bodies can now effectively shield the resulting reports from public scrutiny by claiming attorney-client privilege—a shield that this ruling confirms does not expire."

Rowe noted that the Open Records Act exists because "all political power is inherent in the people" under the Oklahoma Constitution. Transparency is not merely convenient—it is constitutionally essential.

Other Issues Unresolved

Because the majority resolved the case on attorney-client privilege alone, it did not address whether other claimed exemptions (work product, personnel records, identity of informer) also applied. The dissent argued these too were wrongly applied or raised factual disputes warranting denial of summary judgment.

What This Means for Oklahomans

For Journalists and Watchdogs

NonDoc v. OU creates a significant new barrier to accessing information about how public institutions handle internal misconduct. The decision essentially confirms that if a public university (or city, or agency) hires outside counsel to investigate itself, the resulting report can be permanently shielded from the public.

For Litigants

If you are suing a government entity for misconduct, this case confirms that internal investigation reports may be protected from discovery. You will need to pursue other avenues—depositions, document requests targeted at underlying facts, subpoenas to third parties.

For Open Records Practice

For attorneys advising clients on Open Records Act requests, this case is now the leading authority on the scope of attorney-client privilege for public body communications. It confirms that the privilege is broader than many anticipated.

The Scope of the Holding

It is important to note what this case did not decide:

• Routine records are still public. This case involved a law firm's comprehensive legal analysis. Routine government records—emails, policies, incident reports, body camera footage—remain accessible under the ORA.
• The Open Records Act is still powerful. The ORA still requires transparency for most government records. This case carved out a specific protection for attorney-client communications.
• The dissent's arguments persist. Future litigants may argue this case was wrongly decided, particularly in the legislature or in cases with different facts.

Frequently Asked Questions

Does this case mean all government documents are now secret?

No. The Open Records Act still applies broadly. This case only addresses records protected by attorney-client privilege—specifically, reports prepared by outside counsel during an investigation.

Can I still request body camera footage or police reports?

Absolutely. Those records are not attorney-client communications and remain subject to the Open Records Act, subject to specific exemptions (e.g., ongoing criminal investigations).

What if the government claims privilege improperly?

You have the right to challenge improper claims of privilege in court. Agencies sometimes assert exemptions that don't apply. An attorney can help you evaluate whether the claimed privilege is valid.

Does this affect my ability to sue a government entity?

Indirectly. If the government has damaging internal investigation findings, this case makes it harder to obtain them pre-suit through the ORA. However, formal discovery during litigation may still allow access depending on the circumstances.

What about the OSBI—can they share what they received?

The Court found that OSBI received the reports under a "Joint Interest Agreement" that preserved privilege. OSBI is not obligated (and likely not permitted) to disclose the reports.

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NonDoc v. OU is a significant decision for transparency advocates and anyone seeking accountability from Oklahoma's public institutions. The full opinion is available on OSCN.

At Addison Law, we represent clients in civil rights cases against government entities and regularly use Open Records Act requests as part of our investigation. We understand the limits—and the opportunities—that remain after this decision.

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This article is for general information only and is not legal advice. The information reflects the law as of January 2026.