Wyoming Supreme Court rules officials may cite 'deliberative privilege' to withhold records


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CHEYENNE, Wyoming — Handing government officials a new tool to prevent the release of potentially embarrassing materials, the Wyoming Supreme Court ruled Thursday that the state's public records law can allow officials to refuse public inspection of documents they relied on in reaching final policy decisions.

Unlike the federal records law, Wyoming's public records law doesn't specifically exempt such so-called "deliberative process" materials from release. But in Thursday's unanimous ruling, the state court held that the Wyoming law likewise contains such an unspoken exemption as a matter of common law.

Thursday's ruling came on a legal challenge from Robert Aland, a tax attorney who divides his time between Wyoming and Illinois. Aland had sued after the state refused to disclose records concerning Gov. Matt Mead's push to lift federal endangered-species protections for grizzly bears.

"We are not persuaded by Mr. Aland's argument that we should reject the privilege because the policy reasons behind it are not supported by empirical evidence," the ruling states. "No empirical data is necessary where, as here, the conclusion that decision-makers will be less inhibited in expressing their opinions if they have some assurance they will not later be subject to public ridicule and criticism, is based on a strong body of case law and 'simple common sense.' "

Cheyenne lawyer Bruce Moats, who represented Aland, issued a statement saying he's disappointed with the ruling and fears officials will point to it to justify withholding a wide variety of documents from the public.

Moats said he disagreed with the court's statement that it's merely common sense that government officials' fear of embarrassment if their deliberations were known to the public would hurt the quality of government decision-making.

"Experience has taught us that the quality of government decision-making is enhanced by public participation," Moats said. "Further, fear of embarrassment has never been found to be a reason enough to keep the public in the dark. It begs the question why an official who gives unbiased, accurate and complete advice should be embarrassed by that advice."

The court ruling sets out a three-pronged test for public officials to follow in weighing whether they have the right to withhold records for the public. To qualify, a record must be an interagency or intra-agency communication. Second, it must date from before the agency's final decision on a matter. Finally, the court ruled that disclosure of the document must be determined as not being in the public interest.

The court ruling applies only to requests to inspect public records. The court said its ruling wouldn't crimp lawyers' ability to ferret out deliberative-process records through the courts as part of litigation against public officials and agencies.

Jim Angell, executive director of the Wyoming Press Association, said Thursday that he was disappointed in the decision. The Associated Press is a member of the Press Association.

"What this ruling says is that the very documents that go to helping public officials decide what to do with our money can be hidden from public view," Angell said.

"I realize the court said this was to be very narrowly construed, and they were fairly clear about that," he said. "But the definition of what's narrowly construed has to be figured out by a judge, which means the minute some government official decides to hide some document, and somebody wants to challenge that, they'll have to come up with the bucks to sue."

Angell noted that the Wyoming Legislature considered amending the state's public records law to include a deliberative-process exemption but ultimately rejected the idea.

Wyoming Attorney General Peter Michael, whose office argued against releasing the records to Aland, said Thursday he disagreed with criticism that the government officials would use the ruling as an excuse not to turn over records or make it more difficult for the public to access information.

"It's really a question of whether government officials act in good faith and listen to what the Wyoming Supreme Court says and follow the law," Michael said. "So I guess that's a question of if you trust your public officials or not. If we trust them to do the right thing and follow the law, then they'll try to apply this privilege in the proper way."

Renny MacKay, spokesman for Mead, said Thursday that the state has taken the position for several years, even predating Mead's tenure, that a deliberative-process exemption exists in law.

"Now we have clarity from the Supreme Court that this is the case," MacKay said. "The exemption is similar to what is in federal (Freedom of Information Act) law with something extra — a public-interest consideration by the custodian — that makes even more information public."

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