Aland v. Mead

Citation327 P.3d 752
Decision Date26 June 2014
Docket NumberNo. S–13–0119.,S–13–0119.
CourtUnited States State Supreme Court of Wyoming
PartiesRobert H. ALAND, Appellant (Plaintiff), v. Matthew H. MEAD, Governor of the State of Wyoming; Wyoming Game & Fish Department; and Scott Talbott, Director of the Wyoming Game & Fish Department, Appellees (Defendants).

OPINION TEXT STARTS HERE

Representing Appellant: Bruce T. Moats, Law Office of Bruce T. Moats, P.C., Cheyenne, Wyoming.

Representing Appellees: Peter K. Michael, Wyoming Attorney General; Ryan T. Schelhaas, Senior Assistant Attorney General; and Bridget L. Hill, Senior Assistant Attorney General. Argument by Mr. Schelhaas.

Before KITE, C.J., and HILL, BURKE, DAVIS, and FOX, JJ.

FOX, Justice.

[¶ 1] Robert Aland requested documents related to the status of grizzly bears under the Endangered Species Act from the Office of the Governor and the Wyoming Game & Fish Department (collectively the State) pursuant to the Wyoming Public Records Act (WPRA). The State provided some documents and denied access to others on grounds that the documents were privileged under the deliberative process privilege and the attorney-client privilege.

[¶ 2] Mr. Aland filed a petition in district court seeking access to the withheld documents. The district court concluded that the WPRA incorporates the deliberative process privilege as a ground to exempt documents from disclosure under the Act, and it found that the documents withheld under the deliberative process privilege fit within the scope of the privilege and were properly withheld by the State. The court further ruled that two of the three documents withheld by the State under the attorney-client privilege were properly withheld. Mr. Aland appealed to this Court.

[¶ 3] We affirm in part and reverse in part. We affirm the district court's ruling that the WPRA incorporates the deliberative process privilege as a ground to exempt documents from disclosure under the Act, and we affirm the district court's ruling with respect to the documents withheld under the attorney-client privilege. With respect to the documents withheld pursuant to the deliberative process privilege, we find that some of the documents were properly withheld, but others are outside the scope of the privilege's protection and were thus not properly withheld.

ISSUES

[¶ 4] We restate the issues as follows:

1. Does the Wyoming Public Records Act include a deliberative process privilege?

2. Do the documents withheld fall within the deliberative process privilege?

3. Do the documents withheld fall within the attorney-client privilege?

FACTS

[¶ 5] On May 24, 2012, Governor Matthew H. Mead sent a letter to Secretary of the Interior, Ken Salazar, regarding the continued listing of the grizzly bear on the endangered species list. By letter dated July 20, 2012, Mr. Aland requested copies of public records related to Governor Mead's letter. Specifically, Mr. Aland requested:

1. All drafts of the May 24 Letter;

2. All comments and suggestions with regard to the substance and content of the May 24 Letter provided by officials and employees of the State of Wyoming, federal agencies and third parties;

3. All communications between or among officials and employees of the State of Wyoming and officials and employees of the USDOI and other federal agencies and the Interagency Grizzly Bear Committee with regard to the May 24 Letter before and after the May 24 Letter was finalized and issued;

4. All communications between or among officials and employees of the State of Wyoming and non-governmental organizations with regard to the May 24 Letter before and after the May 24 Letter was finalized and issued;

5. All minutes and notes of meetings, telephone conversations and other contacts relating to the May 24 Letter, including contacts with Secretary Salazar and other officials and employees of the USDOI and other federal agencies and nongovernmental organizations;

6. All reports, analyses and other documents of every kind and character relied upon by Governor Mead to support factual statements in the May 24 Letter, including, but not limited to, statements relating to Wyoming's $35 Million investment in recovery over the last 28 years, Wyoming's $2 million average annual cost for grizzly bear management, names of USDOI grizzly bear scientists who “believe the species is unquestionably recovered” in the GYA, and investigative reports and other documents relating to four human deaths over the last two years in the GYA;

7. All reports, analyses and other documents relating to the decisions of the courts in Greater Yellowstone Coalition v. [Servheen], 665 F.3d 1015 (9th Cir.201[1] ), affirming 672 F.Supp.2d 1105 (D.Mont.2009) (Copies of the courts' opinions should not be provided);

8. All reports, analyses and other documents relating actions that will or might be taken by, and options that are available to, the State of Wyoming if Secretary Salazar and the USDOI do not act in accordance with the May 24 Letter;

9. All communications and documents relating to, and supporting, the following statement in the first paragraph of the May 24 Letter: “Thank you again for your work on the wolf and sage-grouse”; and

10. All communications and documents relating to prior matters with regard to which Governor Mead and Secretary Salazar have worked together that support the following statement in the last paragraph of the May 24 Letter. “I look forward to working again with you and your Department....” (Emphasis added.)

[¶ 6] On October 4, 2012, the State provided Mr. Aland documents in response to his request, along with two privilege logs, one devoted to documents held by the Governor's Office and the other devoted to documents held by the Wyoming Game & Fish Department. The State identified documents or portions thereof that it withheld as privileged and the reasons for withholding or redacting those documents. The logs specified three reasons for withholding documents: 1) they contain privileged legal advice; 2) they are not available to a party in litigation with the agency as provided by Wyo. Stat. Ann. § 16–4–203(b)(v) (LexisNexis 2013) and disclosure is contrary to the public interest because they are deliberative; or 3) the documents contained personal identifying information.

[¶ 7] On November 13, 2012, Mr. Aland filed a petition with the district court seeking access to the documents withheld on grounds of the deliberative process privilege and attorney-clientcommunication privilege. Before the dispute was submitted to the court, the State provided Mr. Aland with additional documents so that at the time of hearing forty-five documents were in dispute. Following briefing, oral argument, and an in camera review of the disputed documents, the court ruled that all but one of the documents were properly withheld. The court concluded that the WPRA incorporates the deliberative process privilege into Wyoming law and that all “the documents for which the deliberative process privilege is sought would fall within that privilege.” With regard to the documents withheld under the attorney-client privilege, the court concluded that two of the three documents were properly withheld.1 Mr. Aland timely filed his notice of appeal.

STANDARD OF REVIEW

[¶ 8] Whether the WPRA incorporates the deliberative process privilege is a question of statutory interpretation that we review de novo. Powder River Basin Res. Council (“ PRBRC ”) v. Wyo. Oil & Gas Conservation Comm'n, 2014 WY 37, ¶ 19, 320 P.3d 222, 228 (Wyo.2014); Freudenthal v. Cheyenne Newspapers, Inc., 2010 WY 80, ¶ 10, 233 P.3d 933, 936 (Wyo.2010). Application of the WPRA's exemptions from disclosure likewise presents a question of law that we review de novo.Laramie Cnty. Sch. Dist. No. One v. Cheyenne Newspapers, Inc., 2011 WY 55, ¶ 2, 250 P.3d 522, 523 (Wyo.2011); Freudenthal, 2010 WY 80, ¶ 10, 233 P.3d at 936.

DISCUSSION

[¶ 9] In Freudenthal, this Court reserved ruling on the question of whether the WPRA incorporates the deliberative process privilege because the documents at issue in that case were not the type that would fall within the privilege. 2010 WY 80, ¶ 32, 233 P.3d at 942. The case now before us does present disputed documents that fit within the scope of the privilege, making resolution of the question proper at this time. We begin our discussion by interpreting Wyo. Stat. Ann. § 16–4–203(b)(v) (LexisNexis 2013), which requires us to decide whether we recognize a common law deliberative process privilege in Wyoming. We then turn to application of that exemption to the disputed documents. Finally, we address the two documents withheld under the attorney-client privilege.

I. Does the Wyoming Public Records Act include a deliberative process privilege exception?

[¶ 10] The WPRA provides that records of the state, its agencies, and local government entities “shall be open for inspection by any person at reasonable times.” Wyo. Stat. Ann. § 16–4–202(a) (LexisNexis 2013). The Act, however, also authorizes a records custodian to deny access to certain records.

(b) The custodian may deny the right of inspection of the following records, unless otherwise provided by law, on the ground that disclosure to the applicant would be contrary to the public interest:

....

(v) Interagency or intraagency memoranda or letters which would not be available by law to a private party in litigation with the agency[.]

Wyo. Stat. Ann. § 16–4–203(b)(v).

[¶ 11] The task before this Court is to determine whether Section 203(b)(v) of the WPRA incorporates the deliberative process privilege, a question of statutory interpretation.

In interpreting statutes, our primary consideration is to determine the legislature's intent. All statutes must be construed in pari materia and, in ascertaining the meaning of a given law, all statutes relating to the same subject or having the same general purpose must be considered and construed in harmony. Statutory construction is a question of law, so our standard of review is de novo. We endeavor to interpret statutes...

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